author: Eldridge, Judge.

text:
    A98A0786.
    WAHNSCHAFF v. ERDMAN.
    (502 SE2d 246)
   Eldridge, Judge.

On August 12, 1988, an automobile driven by Jennifer Erdman rear-ended Lorain C. Wahnschaff, plaintiff-appellant. Plaintiff sued Ms. Erdman and her father, Gerard Erdman, defendant-appellees, under the Family Purpose Doctrine.

Plaintiff’s complaint in two separate paragraphs pled the Family Purpose Doctrine. Paragraph 12 of the complaint reads as follows: “The 1976 Chevrolet Vega automobile driven by Defendant Jennifer B. Erdman in said collision was provided to Defendant Jennifer B. Erdman by her father, Gerard Erdman, as a family purpose automobile as defined by the laws of Georgia.” Paragraph 13 states as follows: “At the time of the above described collision, said 1976 Chevrolet Vega automobile was being operated by Defendant Jennifer B. Erdman within the scope of the Family Purpose Doctrine as defined by the laws of Georgia.”

Defendant Gerard Erdman admitted both paragraphs of the complaint. Ms. Erdman, in her answer, also admitted such paragraphs.

Over four years later, after the complaint against Ms. Erdman had been dismissed for insufficient service, the defendant Gerard Erdman (hereinafter referred to as defendant) amended his answer to paragraphs 12 and 13 of the complaint. In the amended answer, defendant denied that the vehicle was used under the Family Purpose Doctrine. No pretrial order had been entered prior to defendant’s amendment withdrawing the admission in judicio of the Family Purpose Doctrine. The pretrial order was not filed until more than 18 months after the amendment. In the consolidated pretrial order, plaintiff contended that defendant provided the vehicle pursuant to the Family Purpose Doctrine. The defendant denied that the vehicle was a family purpose vehicle in the consolidated pretrial order. The consolidated pretrial order stated that “the issues for determination by the jury according to the Plaintiff are as follows: ‘Liability of Defendant under the family purpose doctrine and the amount of damages to be awarded to Plaintiff.’ ”

On March 3, 1997, the case was tried before a jury. During the plaintiff’s case-in-chief, the original admissions in judicio, the answers to paragraphs 12 and 13, were read to the jury as admissions against interest of the defendant. The defendant offered testimony about the amendment and the withdrawn admissions in judicio without objection. Plaintiff introduced evidence that the vehicle was titled in the defendant’s name as the sole title owner. The evidence showed that, on July 29, 1988, defendant purchased the vehicle from Charles Norton and signed the back of the title as purchaser. However, defendant contended that the vehicle was purchased with his daughter’s money and was titled in his name only because of her age. Ms. Erdman, on the other hand, testified that her father, the defendant, paid one-half the cost of the car and that she paid $500, the other half. In March 1989, defendant sold the vehicle as the seller. The verified interrogatory answers of defendant and his daughter stated that the defendant owned the vehicle on the date of the collision. Ms. Erdman testified that she was the sole user of the car; that she had the only keys to the car; that she paid for the maintenance and gas for the car; and that she did not have to ask permission to use the vehicle. She was a minor, living in her father’s house, at the time of the collision.

At the close of all of the evidence, plaintiff made a motion for directed verdict as to the issue of defendant’s vicarious liability under the Family Purpose Doctrine. The trial court denied the motion. The jury returned a defendant’s verdict. Plaintiff moved for judgment notwithstanding the verdict and in the alternative for a new trial, which were both denied. A timely notice of appeal was filed as to the denial of such motion.

1. Plaintiff’s first enumeration is that the trial court erred in denying her motion for directed verdict, because the defendant was conclusively bound by his original admission as to the Family Purpose Doctrine. We do not agree.

Under OCGA § 24-3-30, admissions in judicio in a party’s pleadings bind the party so that they cannot put up evidence over objection to contradict such admissions. See Reynolds v. Estate of R. J. Reynolds, 238 Ga. 1, 3 (230 SE2d 842) (1976); State Hwy. Dept. v. Lumpkin, 222 Ga. 727, 728 (152 SE2d 557) (1966); Ditch v. Royal Indem. Co., 205 Ga. App. 478, 479 (422 SE2d 868) (1992); Strozier v. Simmons U.S.A. Corp., 192 Ga. App. 601, 602-603 (385 SE2d 677) (1989). However, if evidence that contradicts the admission in judicio is admitted either without objection or over the objection of the other party, then under OCGA § 9-11-15 (b) such evidence shall be deemed to amend the pleadings, so that the admission in judicio is withdrawn, the trial judge is deemed to have allowed such withdrawal of the admission in judicio, and the party may put up evidence to contravene the admission. Walker v. Jack Eckerd Corp., 209 Ga. App. 517 (434 SE2d 63) (1993). If the party making the admission in judicio wishes to contravene the admission, then the party must first amend the pleading to withdraw the admission in judicio before such evidence may be submitted. OCGA § 9-11-15; Summerlot v. Crain-Daly Volkswagen, 238 Ga. 546, 547 (1) (233 SE2d 749) (1977); Head v. Lee, 203 Ga. 191, 203 (8) (45 SE2d 666) (1947); Strozier v. Simmons U.S.A. Corp., supra at 602-603.

Although a party may withdraw or strike from the pleadings an admission in judicio by amendment and tender evidence to contravene such admission, the opposite party can tender in evidence the original admission in judicio against such party as an admission against interest. Stallings v. Britt, 204 Ga. 250 (49 SE2d 517) (1948); Alabama Midland R. Co. v. Guilford, 114 Ga. 627 (40 SE 794) (1902); Lydia Pinkham Medicine Co. v. Gibbs, 108 Ga. 138 (33 SE 945) (1899); Strozier v. Simmons U.S.A. Corp., supra; Lawson v. Duke Oil Co., 155 Ga. App. 363 (270 SE2d 898) (1980); Improved Fertilizer Co. v. Swift & Co., 15 Ga. App. 601 (84 SE 132) (1915).

Since, in this case, the defendant amended the answer prior to the entry of the pretrial order and struck the admission in judicio as to family purpose, the consolidated pretrial order set forth that this was now a contested issue, and evidence contradictory to the admission was admitted without objection at trial, then the admission no longer had the binding effect of an admission in judicio.

2. The plaintiff’s second enumeration is that the trial court erred in denying plaintiff’s motion for directed verdict as to defendant’s liability under the Family Purpose Doctrine. We do not agree.

To constitute an admission in judicio that binds the party and upon withdrawal by amendment becomes an admission against interest, it must constitute an admission of fact or of the existence of a legal relationship. “[A]n admission in judicio applies only to the admission of fact and does not apply where the admission is merely the opinion or conclusion of the pleader as to law or fact. Thus, allegations which are conclusory, or which assert mere opinions of the pleader are not admissions in judicio. There may be an admission in judicio as to the existence of a legal relationship between the parties, but not concerning the effect of such relationship, as this would be a legal conclusion. [Cit.] The rule pertaining to admissions in pleadings or other admissions in judicio are not applicable where the admission is merely the opinion on the part of the party making it as to the legal effect.” (Punctuation omitted.) Howell Mill/Collier Assoc. v. Pennypacker’s, Inc., 194 Ga. App. 169, 172 (2) (390 SE2d 257) (1990).

The nature of the alleged admission in this case must be determined. If it was an admission of fact or of a legal relationship, then the admission would be evidence against the penal interest of the defendant. However, if the admission was an opinion or conclusion, then it would lack probative value as evidence. See Ellerbee v. Interstate Contract Carrier Corp., 183 Ga. App. 828 (360 SE2d 280) (1987); Perry & Co. v. New South Ins. Brokers &c., 182 Ga. App. 84 (354 SE2d 852) (1987).

In this case, an alleged admission in judicio was made regarding a legal opinion as to the effect of a relationship, agency under the family purpose doctrine; the alleged admission in judicio went to the effect of the legal relationship of agency, i.e., an opinion or conclusion of the pleader as to law and not of fact. Therefore, the admission could not be an admission in judicio and could not be an admission against interest, because it was a legal opinion or conclusion that had been withdrawn by amendment from the pleadings. Howell Mill/Collier Assoc. v. Pennypacker’s, Inc., supra at 172; see also Head v. Lee, supra at 203; Walker v. Jack Eckerd Corp., supra at 518; Strozier v. Simmons U.S.A. Corp., supra at 603. Since the alleged admission in judicio had been withdrawn and the plaintiff had tendered the alleged admission against interest into evidence, then it had no probative value despite the acceptance of the tender of an alleged admission against interest of the defendant, because it was a mere opinion or conclusion of law or of the effect of a legal relationship, i.e., Family Purpose Doctrine.

Thus, defendant’s testimony at trial was not in conflict with defendant’s alleged earlier admissions. Further, defendant did sufficiently explain the reason for the earlier alleged admissions in judicio, subsequently withdrawn, in order to escape the construction most unfavorable to the defendant, i.e., that the vehicle was a family purpose vehicle. Also, there was other evidence in support of such defense issue. See Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (343 SE2d 680) (1986); Strozier v. Simmons U.S.A. Corp., supra at 603. Further, for purposes of the application of Prophecy Corp., self-contradictory testimony is testimony of a party under oath or affirmation as distinguished from evidence derived from other sources. “Prophecy Corp. rests on the principle that a party knows what he has sworn and may not swear in contradiction to that which he has sworn to be true without explanation. The rule was not intended to apply to an unsworn statement of a party-witness, and we decline to so extend it.” (Citation and punctuation omitted; emphasis supplied.) Shiver v. Norfolk-Southern R. Co., 269 Ga. 168, 169-170 (496 SE2d 903) (1998).

The trial court did not err in making such determination prior to considering the defendant’s other evidence on the motion for directed verdict and in drawing inferences favorable to the defendant. Further, defendant’s daughter contradicted defendant regarding furnishing the vehicle to her: she testified that she and the defendant each paid one-half of the cost of the car; defendant testified that his daughter had paid the entire purchase price. This created a material issue of fact for determination by the jury. OCGA § 9-11-50 (a); Pendley v. Pendley, 251 Ga. 30 (302 SE2d 554) (1983).

The evidence was that title was in defendant’s name; that defendant purchased the vehicle in his name; that he sold the vehicle in his name; and that the daughter was a minor and lived in his house. Further, the daughter testified that the defendant furnished the vehicle by paying one-half of the purchase price. However, the defendant testified that his daughter paid the entire purchase price as well as the operating costs and used the car to go to work.

Decided April 3, 1998

Hyatt & Hyatt, John M. Hyatt, Tyron C. Elliott, for appellant.

Swift, Currie, McGhee & Hiers, Lynn M. Roberson, Webb, Car-lock, Copeland, Semler & Stair, Frederick M. Valz III, Jessica D. McKinney, for appellee.

“A defendant is liable under the [Family Purpose D]octrine ‘if he had the right to exercise such authority and control that it may. be concluded that an agency relationship existed between him and the family member with respect to the use of the vehicle.’ Murch v. Brown, 166 Ga. App. 538, 539 (304 SE2d 750) (1983).” Clifton v. Zemurray, 223 Ga. App. 756, 757-758 (478 SE2d 897) (1996). “Thus, in a family purpose situation the crucial issue may be whether the defendant supplied or furnished the vehicle for family purposes. Consequently, a mere showing that the vehicle was registered in the head of household’s name and utilized by a family member alone is not sufficient to establish this to be a family purpose car. The doctrine applies to render the defendant vicariously liable if he had the right to exercise such authority and control that it may be concluded that an agency relationship existed between him and the family member with respect to the use of the vehicle.” (Citations and punctuation omitted.) Walston v. White, 213 Ga. App. 441, 442 (444 SE2d 855) (1994).

The grant of a directed verdict is authorized only when the evidence and all reasonable deductions therefrom demand a verdict in favor of the movant. Mercer v. Woodard, 166 Ga. App. 119 (303 SE2d 475) (1983). On appeal from the denial of a motion for directed verdict, the questions before the appellate court are whether or not there is a conflict in the evidence as to material issues, and whether all the evidence demanded the directed verdict, or whether there was some evidence supporting the jury verdict. Pendley v. Pendley, supra. The trial court did not err.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    A98A0857.
    GOSHAYESHI v. MEHRABIAN.
    (501 SE2d 265)
   Eldridge, Judge.

In this direct appeal following an arbitration award, appellant/ defendant Mohammed Goshayeshi challenges a Cobb County trial court’s order granting plaintiff/appellee’s application to compel arbitration. Appellant asserts that he did not consent in writing to binding arbitration. It is for this reason also that appellant contends the trial court erred in subsequently affirming the arbitration award.

Decided April 3, 1998

Dupree, Johnson & Poole, A. Gregory Poole, for appellant.

Gerald W. Fudge, for appellee.

“The grant of an application to compel arbitration is not directly appealable pursuant to OCGA § 5-6-34 (a) (4), but is instead an interlocutory matter reviewable pursuant to OCGA § 5-6-34 (b). [Cits.] A party seeking appellate review from an interlocutory order must follow the interlocutory application procedure set forth in OCGA § 5-6-34 (b), which includes obtaining a certificate of immediate review from the trial court. [Cit.]” Pace Constr. Corp. v. Northpark Assn., 215 Ga. App. 438, 439 (450 SE2d 828) (1994). The correctness of this mandatory procedure is illustrated no more clearly than in this case, wherein the record shows that appellant failed to take any affirmative action to stay arbitration proceedings prior to the trial court’s order or to contest arbitration proceedings after the trial court’s order.

Accordingly, this appeal must be dismissed. The order to compel arbitration from which Goshayeshi appeals is not a final judgment, and he failed to follow the interlocutory appeal procedures set forth in OCGA § 5-6-34 (b). Pace, supra at 439; McAllaster v. Merrill Lynch &c., 212 Ga. App. 697 (443 SE2d 9) (1994).

Appeal dismissed.

McMurray, P. J., and Blackburn, J., concur.

       In order to perfect the record for appellate review, a party must register a timely objection to a motion to compel arbitration. To that end, the statute provides that “a party who has not participated in the arbitration and who has not made an application to compel arbitration may apply to stay arbitration on the grounds that: (1) [n]o valid agreement to submit to arbitration was made; (2) [t]he agreement to arbitrate was not complied with; or (3) [t]he arbitration is barred by limitation of time.” (Emphasis supplied.) OCGA § 9-9-6 (b). Further, when served with a demand for arbitration, the served party must apply for a stay of arbitration within 30 days of service, or “he will thereafter be precluded from denying the validity of the agreement.” OCGA § 9-9-6 (d).


author: Blackburn, Judge.

text:
    A98A0638.
    BETHEL v. THE STATE.
    (500 SE2d 595)
   Blackburn, Judge.

Lamont Bethel was convicted of armed robbery, aggravated assault, child cruelty, and false imprisonment in connection with the robbery of a Big Apple Food Store. He appeals, contesting the sufficiency of the evidence and contending that the trial court erred in failing to charge on certain lesser included offenses. For the reasons set forth below, we affirm.

1. “On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).” (Punctuation omitted.) Slaughter v. State, 227 Ga. App. 739 (1) (490 SE2d 399) (1997).

Shahzad Chaudry owned a Big Apple Food Store in Americus. At about 9:30 p.m. on June 19, 1996, Chaudry, his wife, and his two young children were in the store, preparing to close. Chaudry’s wife was counting the money and placing it into a blue money bag for the bank. Two masked men then entered the store. Chaudry testified that one of the men was wearing black pants and a black t-shirt, had a handkerchief tied over his nose as a mask, and was carrying a handgun. The other man was dressed in light brown with a stocking over his face and was carrying a shotgun.

Chaudry testified that both men came into his office. As the man with the shotgun was searching the office, the other man pointed his handgun at Chaudry and demanded the money. This man then grabbed Chaudry’s nine-year-old daughter and put the gun to her head, demanding the money. The other man, with the shotgun, then took the money bag from Chaudry’s wife, and the two left the store. Chaudry testified that the money bag contained about $1,500 in cash, as well as food stamps, WIC vouchers, and checks. He particularly remembered that there was a check written on the Sumter County Sheriff’s Department, which he had cashed earlier that day.

Chaudry testified that the two men ran to a shed in front of a store. Through a window, Chaudry saw the man with the stocking mask take off his mask and recognized him as Willie Harper. Harper lived near the store and had caused trouble on several previous occasions by yelling and cursing in the store.

Chaudry also testified that he recognized the other individual, who had been wearing a handkerchief over his nose during the robbery, as a previous customer in the store. Although Chaudry did not know the man’s name, he knew that he lived with a woman who was one of his good customers. Chaudry identified Bethel in court as the man with the handkerchief who had pointed the handgun at him and his daughter. He testifed that he had no doubt about his identification of Bethel as the robber. Chaudry’s wife also identified Bethel as the robber, stating that she had seen him in the store many times.

Jasper Robinson testified that Bethel lived at his grandmother’s house near the Big Apple store. About 30 or 45 minutes before the robbery, he saw Bethel and Harper at a park talking to each other. They had weapons, and told Robinson that they were going to “hit a lick,” meaning take something. After they finished talking, Robinson saw Bethel and Harper walking toward the store. Robinson then walked along a different path toward the store and stood at a pay telephone pretending to talk. He saw Bethel and Harper enter the store with weapons. He testified that one was wearing a scarf over his face and the other was wearing a knee-high stocking. He saw the two rob the Chaudrys and point their guns at Chaudry and his daughter. Later that evening, Robinson saw Bethel at his grandmother’s house. Bethel gave Robinson a blue money bag and asked him to throw it away. Robinson was shown the blue money bag previously identified by Chaudry and his wife and testified that it was the same bag he was given by Bethel.

Shannon Evans testified that, a couple of days before the robbery, Bethel asked him if he would like to do an armed robbery with him. When Evans said he was not interested, Bethel said “Either you in or you ain’t. You know, I’m fixing to go to find somebody else to do it.” About 10:30 or 11:00 p.m. on the night of the robbery, Evans saw Bethel at his grandmother’s house. Bethel asked if he could stay with Evans that night, because he was going to Miami the next morning. After Bethel got into the car with Evans, he pulled a wad of money out of his pocket and showed it to Evans. They went to Evans’ girl friend’s house, and Bethel went into a side bedroom and started counting his money. Evans also testified that he smelled something burning. Evans’ girl friend, Linda Sheffield, testified that she saw Bethel burning some WIC vouchers and checks in an ashtray. She testified that she particularly remembered seeing a check from the sheriff’s department.

Viewed in the light most favorable to the prosecution, this evidence was sufficient to authorize a rational trier of fact to find Bethel guilty beyond a reasonable doubt of each of the offenses charged. See Jackson, supra.

2. Bethel also contends the trial court erred in failing to charge the jury on the lesser included offenses of robbery and theft by receiving stolen property. These contentions are without merit. The evidence clearly established that the robbery was committed through the use of a weapon, and there was no evidence from which the jury could have found that the robbery was committed without use of such a weapon. Accordingly, the trial court did not err in refusing to charge the jury on the lesser included offense of robbery. Greene v. State, 263 Ga. 466, 467 (435 SE2d 607) (1993).

With respect to Bethel’s contention that the court should have charged on theft by receiving stolen property, that crime is not a lesser included offense of armed robbery, but is a separate offense proved by an entirely different set of facts. “A defendant is not entitled to an instruction on an offense for which he has not been charged that is not a lesser included charge.” Pruitt v. State, 217 Ga. App. 681, 683 (3) (458 SE2d 696) (1995). As Bethel was not charged with receiving stolen property, the trial court did not err in refusing to charge on such offense. See Adams v. State, 164 Ga. App. 295, 296-297 (2) (297 SE2d 77) (1982); Lee v. State, 259 Ga. 230, 232 (3) (378 SE2d 855) (1989).

Decided March 24, 1998

Reconsideration denied April 6, 1998.

Ellis, Easterlin, Peagler, Gatewood & Skipper, Paul O. Farr, for appellant.

John R. Parks, District Attorney, Barbara A. Becraft, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.


author: McMurray, Presiding Judge.

text:
    A98A0538, A98A0539.
    In the Interest of D. C. N. K et al., children (two cases).
    (501 SE2d 268)
   McMurray, Presiding Judge.

On February 28, 1997, the Houston County Department of Family & Children Services (“DFACS”) filed a complaint with the Houston County Juvenile Court alleging that the female child, D. C. N. K. (“D. K”), then aged two years, and the female child, M. B. C. B. (“M. B”), then aged six months, were deprived “in that they are without proper parental supervision, support or control, and that the deprivation is likely to continue.” Specifically, D. K. was deprived by reason of being “beat[en] in the head, face, back, chest, and butt by her mother[, Michelle Bennett, nee Kanaly], Youth was not given any medical attention for her injuries for over twenty four (24) hours.” M. B. was deprived by virtue of this “youth’s two year old sister [being] severely beaten by her mother [Michelle Bennett].” According to the complaint, the natural mother is in the Houston County jail; the father of D. K. is appellant Rodney Durrance, whereas the father of M. B. is appellant Terry Bennett. Temporary custody of the children was placed with DFACS, and a subsequent complaint for non-reunification was filed.

The natural mother and both fathers were individually represented by their own counsel. In October 1996, the natural mother “admitted] to a general deprivation . . .” without admitting the specific allegations of physical abuse of D. K. The children stayed in protective custody until November 18, 1996, when the juvenile court ordered their return to Ms. Bennett and appellant Terry Bennett. Following another episode of violence involving D. K., the juvenile court terminated the parental rights of Ms. Bennett and appellant Rodney Durrance in D. K., and also terminated the rights of Ms. Bennett and appellant Terry Bennett in M. B. Viewed in the light most favorable to the juvenile court’s adjudication and disposition, the evidence revealed the following:

According to Inman C. English, M. D., a pediatrician from Warner Robins, around 11:00 p.m. on February 27, 1997, D. K. was brought into the emergency room at Houston County Hospital “unresponsive,” and either dazed or comatose, with “multiple bruises over her entire body, including her legs, her arms and her head. She had an evulsion of her ear[; that is, the] ear . . . was torn from the facial skin. She had blood in her right ear canal. She had swelling of her left finger, and it was black and blue and swollen, her index finger on her left hand. . . . [H]er right vaginal area was bruised and swollen. Her left foot was swollen and blue, and she was very stiff, very tight ligaments. She had approximately 30 to 40 bruises, anywhere from a dime to a 50-cent size over her body.” Dr. English “did not think [these bruises] probably [occurred at the same time]. [He] thought they had probably occurred within a five, one to five to seven-day period. There were some bruises . . . that were yellow and green[; whereas] some did look red and fresher. . . . [T]hey had to be multiple contusions to different parts of the body. . . .” X-rays revealed D. K. had “a fracture to the clavicle on the right side[,] with some callus formation. . . . [F]or it to have callus formation, it had to be one to two weeks old, or older.” The evulsion of her ear was caused by “[g]rabbing or pulling at the ear.” In Dr. English’s opinion, these contusions were “the result of [D. K] having been hit or punched[,] or pinched.” In her state, the child was “nonresponsive to vocal stimulation or pain stimulation, anything that stimulates the senses.” In D. K.’s case, this was caused by “brain swelling.” In Dr. English’s opinion, there was no accidental explanation for the multiple injuries; rather, D. K. “definitely was abused.”

Paola Tumminello, M. D., a neurologist, examined D. K. and found her “malnourished. Her body was covered by multiple bruises[, which, to Dr. Tumminello,] appeared to be of different ages; the bruises on her face were more bluish in color, so being more recent, while some of the bruises on the back appeared brownish in color and older. The bruises were taken from the face, abdomen, chest, back, legs, and arms, and even on the hands. The scalp also appeared to be bruised. The child had clotted blood on the right, on the outside of the right ear. On examination of the head, the child was noted to have blood in both eyes or what is called a retinal hemorrhage, bilaterally, although they were more marked over the left side.” D. K. “had several seizures. They were [a] new onset. The child did not have [a] history of seizures previously. . . . She had several convulsions ... to the point that she required . . . medication. . . . [T]he child had an EEG. That is a test that evaluates brain activity. That EEG showed slowing of [D. K.’s] brain activity . . ., consistent with the fact that the brain had been injured.” On the front left, “beneath the left frontoparietal area, the child had a subdural hematoma[, which] is a collection of blood, and there were two of those. One was on the left frontoparietal area, one was in the occipital area. . . . This, to be explained, is the same type lesion you can find in a person who has had violence against a hard object.” D. K.’s brain injury “[d]efinitely . . . will need long-term care. Children that have seizures following a brain insult have an increased risk of epilepsy with seizures for the rest of their lives.” In Dr. Tumminello’s opinion, D. K. was probably slammed into “[a] wall or a hard object.” She further opined that “[r]etinal hemorrhages occur only in two cases. Case number one, but is rarely, when a patient has a bleeding disorder . . . [such as] hemophilia, or clotting disorder. We tested [D. K.] for that; she does not have such a circumstance. The only other thing that causes retinal hemorrhage in a child is Shaken Baby Syndrome. It means that the child has been violently shaken and the head would be rocking back and forth. This causes a rupture of the little veins in behind the retina.” Dr. Tumminello “ruled out diabetes, hemorrhagic diabetes, . . . definitely . . . think[ing] it’s child abuse.”

Sergeant Darren Meadows of the Houston County Sheriff’s Department investigated the information that D. K. had been physically abused by her mother. The mother, through counsel, arranged to meet Sergeant Meadows, but arrived only with the infant M. B. Ms. Bennett denied the allegations and told investigators that D. K. was in Savannah with her father, appellant Rodney Durrance. Later that evening, Sergeant Meadows checked again with Ms. Bennett, who privately admitted the “allegations were true. She said she needed some help, and she said she had hurt [D. K.] real bad.” Sergeant Meadows took the infant M. B. into protective custody at that time. In a custodial statement, Ms. Bennett told investigators she was “upset about her divorce with Mr. Bennett, and that she had struck [D. K.] in the head at least three times with . . . the side of her hand. . . . [A]nd then she got a belt and beat her with the belt.” Ms. Bennett further informed Sergeant Meadows that “she had already contacted [D. K.’s father,] Mr. Durrance and the child was on her way back from Savannah, and it would take 3 or so hours for the child to return.” When Sergeant Meadows subsequently returned to Ms. Bennett’s home, D. K. was there and, after some initial resistance from Ms. Bennett, Sergeant Meadows “took the child to the emergency room at the Medical Center of Houston County.” The next morning, Ms. Bennett was formally arrested.

When appellant Rodney Durrance was contacted by the authorities, “he said he hadn’t seen his child[, D. K.,] in several months, that he, in fact, was working on Thursday night from ... 10 o’clock on to 6:00 or 6:30 the next morning which would have eliminated the time he would have had to travel back and forth. . . . There’s no way he could have just dropped the child off at 11 o’clock if he had to be at work at 10:00.” Appellant Rodney Durrance legitimated D. K. as his lawful child after the February 27, 1997, episode.

Appellant Terry Bennett, the father of M. B., told investigators that, in a previous incident, “Ms. Bennett had hit [D. K.] and blackened her eye, and it had swollen shut. . . .” This incident “occurred during the period of time when they were living together.” Another time, when D. K. would not stop crying, Terry Bennett saw as Ms. Bennett “turned around and hit her, and knocked [D. K.] and the chair over. . . . And [Terry Bennett] grabbed ahold of [Ms. Bennett] and pushed her down on the floor, and said, get off of her, leave her alone. Don’t touch her again.” Yet another time, Terry Bennett “described Ms. Bennett grabbing her [D. K] by the hair and forcing [a] hot dog into her throat, and the child couldn’t breathe, and the child threw it up, and then she [Ms. Bennett] took [D. K.] into the bathroom and threw her into the tub area and started slapping her.” According to Martha Ard, social services manager with the Houston County DFACS, it was Terry Bennett who reported to the authorities that D. K. had been abused by her mother in October 1996.

When cross-examined during the March 1997, adjudicatory hearing, Ms. Bennett, the natural mother, invoked her rights against self-incrimination.

Based upon this evidence, as well as that adduced at the October 1996 hearing, the juvenile court adjudicated both children to be “deprived, in that they are without proper parental care and control, and that the deprivation is likely to continue^ and that reunification with the parents] would not be in the best interest of the children.” In its dispositional order, the juvenile court determined that both children were deprived, not only because of the physical abuse of D. K. by Ms. Bennett, but also was “based upon the admitted drug use during that period by [appellant] Terry Bennett[; the fact that] Terry Bennett and [Ms.] Bennett were living together but were not [then] married[;] that drug users frequented the Bennett residence, and that Terry Bennett admitted he provided drugs to other individualst, including the natural mother, Ms. Bennett].” During the period when Ms. Bennett “kept the child in her room for approximately four days [to conceal D. K.’s blackened eye,] Terry Bennett would not check on the welfare of the child, or intervene in what [Ms.] Bennett was doing to [D. K.].”

With respect to appellant Rodney Durrance, the juvenile court found “he knew at that time that [Ms.] Bennett had abused [D. K.], and that the children were exposed to drug use around [Ms.] Bennett and [appellant] Terry Bennett. Despite this knowledge, [appellant] Rodney Durrance took no action to . . . seek custody of the child at that time; or to maintain any contact with the child to ensure that the child was in good condition, and that her physical, emotional and moral needs were met.” The juvenile court further found that “Rodney Durrance knew [D. K.] had been physically abused in October 1996, [but] did nothing to seek visitation with the child until [he legitimated D. K. in] March, 1997; and by this inaction and neglect he exhibited a total lack of care and concern for the child.” Moreover, the juvenile court determined that “Rodney Durrance’s chronic unrehabilitated use of marijuana would render [him] incapable of providing adequately for the physical, mental, emotional and moral condition and needs of the child.” In Case No. A98A0538, Rodney Durrance appeals from the order of the juvenile court terminating his parental rights in D. K., while in Case No. A98A0539, Terry Bennett appeals from the termination of his parental rights in the infant M. B. Held:

Case Nos. A98A0538 and A98A0539

In each case, the respective natural and legal father of the deprived minor enumerates the sufficiency of the evidence to justify forever severing the familial bonds.

“In considering the termination of parental rights, the court shall first determine whether there is present clear and convincing evidence of parental misconduct or inability as provided in subsection (b) of this Code section. If there is clear and convincing evidence of such parental misconduct or inability, the court shall then consider whether termination of parental rights is in the best interest of the child, after considering the physical, mental, emotional, and moral condition and needs of the child . . ., including the need for a secure and stable home.” (Emphasis supplied.) OCGA § 15-11-81 (a). Termination of each father’s parental rights in the cases sub judice was predicated upon findings of parental misconduct or inability-under the requirements of OCGA § 15-11-81 (b) (4) (A) (i) through (b) (4) (A) (iv). It is undisputed that neither father ever physically abused either child. Rather, the essence of the evidence shows a form of passive neglect or indifference, in the face of evidence that the mother lied about the true nature of D. K.’s repeated bruisings. We assume, without deciding, that the evidence authorized the juvenile court’s determinations that both D. K. and M. B. were deprived, and that such deprivation was caused by the lack of proper parental care or control by the respective fathers, fulfilling the requirements of OCGA § 15-11-81 (b) (4) (A) (i) and (ii).

Decided April 6, 1998.

Yancey & Associates, Thomas R. Wilkerson III, for appellant (case no. A98A0538).

Carl A. Veline, Jr., for appellant (case no. A98A0539).

But OCGA § 15-11-81 (b) (4) (A) (iii) requires that the lack of proper parental care and control causing such deprivation “is likely to continue or will not likely be remedied. . . .” “A finding of [parental] unfitness must be based on present circumstances. Wright v. Hanson, 248 Ga. 523, 525 (2) (283 SE2d 882) (1981); Bozeman v. Williams, 248 Ga. 606, 607 (285 SE2d 9) (1981).” In re N. F. R., 179 Ga. App. 346, 347 (2), 348 (346 SE2d 121). The salient present circumstance in the two cases sub judice is that D. K. and M. B. will no longer be subjected to the violent rage of the natural mother. Consequently, the primary cause of the lack of proper parental care and control is not at all likely to continue for it has already been remedied. “Due to the staleness of the evidence of [paternal] parental misconduct and the absence of clear and convincing evidence that [any] deprivation is likely to continue, termination of [each father’s] parental rights is inappropriate. McCormick v. Dept. of Human Resources, 161 Ga. App. 163, 164 (2) (288 SE2d 120) (1982).” In the Interest of R. U., 223 Ga. App. 440, 442 (477 SE2d 864). In Case No. A98A0538, the judgment of the juvenile court adopting the plan for non-reunification and terminating Rodney Durrance’s parental rights in his daughter, D. K., is reversed. In Case No. A98A0539, the judgment of the juvenile court adopting the plan of non-reunification and terminating Terry Bennett’s parental rights in his daughter, M. B., is reversed. Each case is remanded with direction to establish a plan for reunification, subject to whatever disposition is warranted by future events.

Judgments reversed with direction.

Blackburn and Eldridge, JJ, concur.

Thurbert E. Baker, Attorney General, Jeffrey L. Milsteen, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Stephanie M. Baldauff, Assistant Attorneys General, Williams, Sammons & Sammons, Walter G. Sammons, Jr, Robert E. Hall, Michael J. Moore, Sherry H. Campbell, for appellee.

       According to the report of Penny G. Putnam, “[D. K] was released from the hospital March 15, 1997. Beginning March 12, 1997 she began showing marked improvements including regaining partial vision, ability to walk with support and her appetite. Nurses referred to her as their ‘miracle baby.’ ”


author: McMüRRAY, Presiding Judge.

text:
    A98A1491.
    GATES v. YEAGER et al.
    (498 SE2d 372)
    Decided April 6, 1998.
    Roy Gates, pro se.

      Drew, Eckl & Farnham, William T. Mitchell, for appellees.
   McMüRRAY, Presiding Judge.

Roy Gates, a Georgia prison inmate, commenced this civil action against the Sheriff of Coweta County and the Warden of Calhoun State Prison, over their failure to protect him from the attack of other inmates. The trial court granted summary judgment for the defendants on December 31, 1997, and Gates filed this pro se direct appeal on January 13, 1998.

Under OCGA § 42-12-8, the discretionary appeal procedures pursuant to OCGA § 5-6-35 are required in all appeals brought by inmates in civil actions. Jones v. Townsend, 267 Ga. 489 (480 SE2d 24) (1997). Gates’s failure to comply with those requisite discretionary procedures deprives this Court of the jurisdiction to consider this case, and the appeal must be dismissed.

Appeal dismissed.

Blackburn and Eldridge, JJ., concur.


author: Judge Harold R. Banke.

text:
    A98A0168.
    GILBERT v. MONTLICK et al.
    (499 SE2d 731)
   Judge Harold R. Banke.

In November 1995, David R. Montlick and Gilbert & Montlick, P. C., (the “Firm”) initiated an arbitration proceeding against Fred A. Gilbert. The mutually selected arbitrator conducted an evidentiary hearing which spanned several days and included the testimony of more than 20 witnesses and a multitude of documents. The arbitrator’s detailed final award set forth the terms by which Montlick would buy out Gilbert’s interest in the Firm; provided for a closing of the Firm as of June 30, 1996; specified details on the conclusion of their law practice; and, inter alia, provided for the closing of the corporate books and records and for Gilbert’s final compensation.

Dissatisfied with the results of arbitration, Gilbert filed a motion to vacate the award. Gilbert alleged that the arbitrator overstepped his authority and exceeded his powers by disregarding the parties’ shareholder agreement, by ruling on matters not properly before him, and by allowing Montlick to bring the arbitration on behalf of the Firm without authorization by the Firm’s Board of Directors. Gilbert asserted that the award had been procured by “corruption, fraud, or misconduct,” and should be set aside pursuant to OCGA § 9-9-13 (b) (1), (3). Gilbert further claimed that Montlick, the Firm, and its certified public accountant understated the Firm’s earnings by using unrecognized and improper accounting methods, resulting in a decreased payment to him of more than $500,000.

After Montlick and Montlick & Associates, P. C. moved to confirm the award, the superior court conducted a hearing. In rejecting Gilbert’s claim that the award had been procured by corruption, fraud, and misconduct, the court determined that Gilbert did not establish the essential elements of a fraud claim. The court observed that the same accounting practices had been utilized for 12 years and that Gilbert failed to offer any evidence that the accounting practices were designed to mislead the arbitrator. The court decided that because Gilbert and his experts had reviewed and audited the Firm’s financial statements, “[t]he alleged misrepresentations should have been discovered during the arbitration process and raised with the arbitrator.” The court concluded that Gilbert failed to show that the alleged misrepresentations were not discoverable prior to arbitration upon the exercise of due diligence.

In analyzing whether the arbitrator exceeded his authority, the court construed Gilbert and Montlick’s 1984 shareholders agreement which contained two arbitration provisions. Although the court found some ambiguity in the document regarding the authority of an arbitrator, it declined to find that the arbitrator had overstepped his authority. The court concluded that the arbitrator was within his authority in determining that Montlick should purchase the Firm for a particular price, notwithstanding the fact that Montlick never made a buy-sell offer. Finally, the court decided that Gilbert failed to show that he was prejudiced by the inclusion of the Firm as a party to the arbitration.

The court refused to vacate the award, finding that Gilbert failed to establish the necessary prejudice and to satisfy the requisite evidentiary burden for setting aside the award under any of the four grounds specified in OCGA § 9-9-13 (b). Enumerating two errors, Gilbert challenges that disposition. Held:

1. Gilbert contends that the trial court erred in its application and interpretation of OCGA § 9-9-13 (b) (3). This subsection permits a trial court to vacate an award where the contesting party proves: (1) that he was prejudiced, and (2) that the arbitrator overstepped his authority or executed that authority so imperfectly that the final award was not made on the matter submitted. OCGA § 9-9-13 (b) (3).

In deciding whether to confirm or vacate an arbitration award, a trial court’s role is severely curtailed so as not to frustrate the purpose of avoiding litigation. Cotton States Mut. Ins. Co. v. Nunnally Lumber Co., 176 Ga. App. 232, 236 (4) (335 SE2d 708) (1985). See Goodrich v. Southland Homes Corp., 214 Ga. App. 790 (1) (449 SE2d 154) (1994). Unless one of the statutory grounds for vacating an award as set forth in OCGA § 9-9-13 (b) is found to exist, a trial court in reviewing an award is bound to confirm it. Greene v. Hundley, 266 Ga. 592, 596 (3) (468 SE2d 350) (1996).

On appeal, we will not evaluate the sufficiency of the evidence in arbitration cases and we will not disturb a trial court’s confirmation of an arbitration award, unless the existence of any of the four statutory grounds is shown. Greene, 266 Ga. at 596-597 (3). Notwithstanding Gilbert’s claim to the contrary, the shareholders agreement plainly permits arbitration in the event of an impasse in the management of the Firm and does not require a buy out offer be evaluated before the arbitrator can resolve the impasse. Accordingly, we affirm the court’s determination that Gilbert failed to prove that the arbitrator exceeded his authority or considered matters not properly before him because that finding is not “so clearly erroneous that it implicates the very integrity of the arbitrator in the exercise of his authority.” Amerispec Franchise v. Cross, 215 Ga. App. 669, 671 (1) (452 SE2d 188) (1994).

2. Gilbert reasserts the same argument rejected by the trial court that the arbitration award was procured by misconduct, corruption, and fraud perpetrated on the arbitrator by Montlick, the Firm’s accountant, and others. Having examined the arbitration award, we conclude that nothing on its face appears to be the result of corruption, fraud, or misconduct, or evinces any partiality on the part of the arbitrator. Inasmuch as Gilbert failed to sustain his burden of establishing that the trial court clearly erred in determining that the award was not procured by misconduct, corruption, or fraud foisted upon the arbitrator, we must affirm. Greene, 266 Ga. at 596 (3); Stringer v. Harkleroad & Hermance, 218 Ga. App. 701, 704 (1) (463 SE2d 152) (1995).

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.

Decided March 12, 1998

Reconsideration denied April 7, 1998

Erck, Dever & Merlin, Theodore A. Erck, Jr., Gilbert & Russell, Fred A. Gilbert, for appellant.

Nelson, Mullins, Riley & Scarborough, Kenneth L. Millwood, B. Shane Clanton, for appellees.

       Paragraph 3.8 established the right to arbitration in the event of an unsuccessful buy out effort. Paragraph 13 provided that arbitration could be sought in the event of a dispute or impasse in the operation and management of the Firm.


text:
    A98A0157.
    LEWIS BROADCASTING CORPORATION v. PHOENIX BROADCASTING PARTNERS et al.
    (502 SE2d 254)
   Blackburn, Judge.

Lewis Broadcasting Corporation appeals the trial court’s grant of summary judgment to Phoenix Broadcasting Partners on Lewis’ suit for specific performance of an option agreement. For the reasons discussed below, we affirm.

In January 1994, Phoenix’s predecessor-in-interest, Gulf Atlantic Media of Georgia, Inc., borrowed $650,000 from Lewis. The purpose of the loan was to enable Gulf to finance a settlement with its lender and to avoid a forced sale of its two Savannah radio stations, for which a receiver had been appointed. All parties were represented by counsel in the negotiation and execution of the loan documents. Gulf executed a $650,000 promissory note in favor of Lewis, which note was to mature one year after the assignment from the receiver to Gulf of the FCC licenses to operate the stations, but no later than July 1, 1995. Gulf executed a security agreement granting Lewis a security interest in all of the operating assets of the two stations except their FCC licenses, which under the rules of the FCC could not be transferred or assigned without FCC approval. The agreement provided that the licenses would become part of the collateral in the event of any rule change by the FCC allowing a security interest to be given in such licenses.

As part of the transaction, Gulf also executed an option agreement, giving Lewis the option to purchase the radio stations’ assets, including the FCC licenses (subject to FCC approval), upon the occurrence of a default under the loan. The option price was $650,000, less any amount outstanding on the loan. Phoenix also agreed to pay a $100,000 consultation or noncompetition fee to Gulf’s principal, Carl Marcocci, and his wife upon exercise of the option. This option agreement was executed on January 19, 1994, the same day as the security agreement.

Phoenix subsequently acquired all of Gulf’s assets and assumed its obligations under the loan documents. After Phoenix defaulted on the loan, Lewis gave notice of its intent to exercise the option to purchase the radio stations. When Phoenix refused to perform under the option agreement, Lewis filed this action seeking payment of the loan and specific performance of the option agreement. The trial court granted Phoenix’s motion for summary judgment on the specific performance claim, finding that the option agreement was an impermissible restraint on the debtor’s right to redeem its collateral upon default.

1. Lewis contends that the trial court erred in finding the option agreement void and granting summary judgment to Phoenix on Lewis’ claim for specific performance of such agreement.

The facts of this case are similar to Bromley v. Bromley, 106 Ga. App. 606, 611 (2) (127 SE2d 836) (1962), where a borrower assigned to the lender as security for a loan certain shares of stock owned by the borrower. Id. at 608. The assignment agreement also contained a provision allowing the lender, upon default by the buyer, to purchase the stock by crediting a set amount against the outstanding indebtedness. Id. at 610. In holding such a provision invalid, we stated as follows: “The common law has jealously guarded the mortgagor’s equity of redemption which may not be ‘fettered’ or ‘clogged.’ [Cit.] In general any provision in the mortgage at its inception which takes away the right of the mortgagor to exercise his equity of redemption is void. The mortgagor cannot by the initial agreement bind himself not to exercise his equity to redeem the property. ‘A direct agreement, part of the original transaction, whereby a chattel mortgagor, a pledgor, or a mortgagor of personal property forfeits, or clogs, or fetters his equity of redemption, is void.’ 24 ALR 822, 825, Sec. III (b), and authorities there cited. The mortgagor cannot enter into a contract with a mortgagee at the time of the loan for purchase of the equity of redemption at a fixed sum. . . . Pledges, chattel mortgages and bills of sale to secure debt are treated similarly by the law and equity; certainly this is true insofar as any forfeiture of the equity or right of redemption is asserted or may be involved.” (Emphasis supplied.) Id. at 611 (2).

Bromley thus stands for the proposition that an option to purchase collateral for a fixed price upon default, entered into at the time of the original loan transaction granting a security interest in such collateral, constitutes an impermissible attempt to defeat the debtor’s right to redeem the collateral. This proposition is consistent with the Uniform Commercial Code, which provides that “the debtor or any other secured party may unless otherwise agreed in writing after default redeem the collateral by tendering fulfillment of all obligations secured by the collateral as well as the expenses reasonably incurred by the secured party in retaking, holding, and preparing collateral for disposition, in arranging for the sale, and to the extent provided in the agreement and not prohibited by law, his reasonable attorneys’ fees and legal expenses.” (Emphasis supplied.) OCGA § 11-9-506. See also Kellos v. Parker-Sharpe, Inc., 245 Ga. 130, 133 (2) (263 SE2d 138) (1980) (right to redeem collateral may be waived after default but not before).

Lewis argues that other jurisdictions have recognized an exception to the general rule, whereby a borrower may validly waive the right of redemption by entering into a subsequent agreement supported by additional consideration. See Humble Oil &c. Co. v. Doerr, 303 A2d 898 (N.J. 1973); Ringling Joint Venture II v. Huntington Nat. Bank, 595 S2d 180 (Fla. App. 1992). The validity of this exception has not been addressed by this Court or the Supreme Court of Georgia. However, such an exception is not inconsistent with the language in Bromley, which states that “any provision in the mortgage at its inception which takes away the right of the mortgagor to exercise his equity of redemption is void.” (Emphasis supplied.) Bromley, supra at 611 (2).

Lewis contends that because the option agreement was executed as a separate document from the security agreement, it falls within this exception. This contention is without merit, however, as the loan documents clearly show that the option agreement was part of the initial loan transaction and constituted part of the consideration for Lewis’ agreement to make the loan. See Quintanilla v. Rathur, 227 Ga. App. 788, 790 (1) (490 SE2d 471) (1997) (agreement may consist of multiple documents, and instruments executed at same time in course of single transaction should be read and construed together). Accordingly, the option agreement cannot be considered a “subsequent agreement” for purposes of coming within the exception, and it is therefore unnecessary to address whether or not such exception applies in Georgia.

For the above reasons, the trial court did not err in granting summary judgment to Phoenix on Lewis’ claim for specific performance of the option agreement.

2. Lewis also argues that, even if the option agreement is not enforceable in its entirety, it should be enforceable with respect to the FCC licenses. Since the loan documents did not grant Lewis a security interest in the licenses, and hence Phoenix had no right of redemption in such licenses, Lewis contends that the option agreement cannot be considered an invalid restraint on the right of redemption with respect to the licenses.

This contention is without merit, as the option agreement is not severable in the manner Lewis desires. The option agreement purports to give Lewis the option to purchase all of Phoenix’s operating assets, including the licenses, for a single amount. Nothing in the agreement gives Lewis the right to purchase less than all of Phoenix’s assets, or specifies the price applicable to a purchase of only the FCC licenses. Accordingly, the agreement is not severable and cannot be enforced only with respect to the licenses. See Gray v. Higgins, 205 Ga. App. 52, 56 (3) (421 SE2d 341) (1992).

Decided April 7, 1998.

Bouhari, Williams & Levy, Walter C. Hartridge, Timothy H. Edwards, Chamberlain, Hrdlicka, White, Williams & Martin, John W. Sognier, for appellant.

Oliver, Maner & Gray, James P. Gerard, for appellees.

Judgment affirmed.

McMurray, P. J, and Eldridge, J., concur.


text:
    A98A0192.
    HUMPHREY v. THE STATE.
    (501 SE2d 284)
   Judge Harold R. Banke.

Lavar Humphrey was convicted of two counts of armed robbery involving two different victims and one count of theft by receiving for retaining a stolen vehicle. Following the denial of his motion for new trial, Humphrey appeals.

This case arose after Humphrey and another person robbed Barry Prioleau at gunpoint in a parking lot at about 11:00 p.m. The robbers forced Prioleau to summon his friend, David McAlmen, who was waiting for Prioleau in a car. Humphrey threatened to kill McAlmen unless he removed everything from his pockets. A neighbor spotted the two robbers escape in a maroon Chevrolet Astro van driven by a third person. Based on the neighbor’s report of the vehicle and its license tag number, an officer followed a van matching that description. When the van suddenly halted in a restaurant parking lot, the three individuals fled on foot. An officer chased them into a residential area where they split up. Lying just outside the van, police recovered McAlmen’s keys, license, and credit card.

Just before midnight, shortly after the perpetrators fled into the neighborhood area, Julia Burlison became frightened when she heard footsteps of someone running across her yard then the sound of someone attempting to break into her home. While Burlison was still on the phone with a 911 dispatcher, police apprehended Humphrey in her carport. The following morning, Burlison contacted police after she discovered a loaded handgun, a holster, and a knit cap in her front yard.

At trial, Burlison testified that as she was lying in bed reading, she became frightened when she heard what sounded like more than one person running through her front yard. When Burlison testified that she thought “they were trying to break in,” Humphrey moved for a mistrial or in the alternative for curative instructions. Following a hearing, the court instructed the jury to disregard any testimony about a possible break-in of Burlison’s home, and Humphrey renewed his motion for a mistrial. Held:

Decided April 7, 1998.

Paige A. Pastor, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Assistant District Attorney, for appellee.

In his sole enumeration of error, Humphrey claims that the State impermissibly injected his character in issue by allowing Burlison’s testimony about an attempted break-in which implied to the jury that he committed another crime for which he was not on trial. Humphrey contends that this evidence was immaterial, highly prejudicial and inadmissible. We disagree.

Acts and circumstances forming a part of the continuation of the main offense are admissible as res gestae. Dean v. State, 211 Ga. App. 28, 31-32 (4) (438 SE2d 380) (1993). See Kirk v. State, 210 Ga. App. 440, 443 (1) (436 SE2d 553) (1993) (arrest occurred within 45 minutes of offense and at the end of pursuit). The testimony at issue explained Burlison’s conduct in making the 911 call and it explained the circumstances leading to the police response of apprehending Humphrey in her carport. Scruggs v. State, 227 Ga. App. 35, 36 (2) (a) (488 SE2d 110) (1997). At the time of the 911 call, a massive manhunt for Humphrey, a suspect in two armed robberies, was still underway.

Also, the circumstances connected with a defendant’s arrest are generally admissible. Hardwick v. State, 210 Ga. App. 468, 470 (6) (436 SE2d 676) (1993). This is especially true when, as in this case, the arrest comes nearly immediately after the commission of the crimes. Ivester v. State, 252 Ga. 333, 335 (2) (313 SE2d 674) (1984). The fact that relevant evidence may point toward the commission of a separate crime or may incidentally place a defendant’s character in issue does not render it inadmissible. Martin v. State, 219 Ga. App. 277, 280 (2) (464 SE2d 872) (1995); Hutson v. State, 216 Ga. App. 100, 101 (5) (453 SE2d 130) (1995).

Judgment affirmed.

Birdsong, P. J, and Smith, J., concur.


text:
    A98A0236.
    STEVENS v. SEARS, ROEBUCK & COMPANY.
    (501 SE2d 279)
   Judge Harold R. Banke.

Cynthia Stevens sued Sears, Roebuck & Company (“Sears”), alleging negligence. After the trial court granted Sears’ motion for summary judgment, Stevens commenced this appeal, enumerating five errors.

This case arose after Stevens dropped her car off at Sears’ automotive department. Stevens left the car in the garage doorway and a Sears sales associate drove it into the bay and onto a lift. Despite several signs in the area prohibiting customers from entering the service bays, Stevens followed the car into the garage and walked up behind the mechanic, who was discussing what needed to be done to the car with the sales associate. Unaware of Stevens’ presence behind him, the mechanic lifted the lift extender (sometimes called a skid pad) up with his foot and it allegedly struck her on the inner part of her left ankle.

The trial court held that Stevens’ failure to show that Sears breached a legal duty to her barred her claim. It reasoned that because the lift extender was a readily observable condition which she should have seen, her contributory negligence was the sole proximate cause of her injury. Held:

1. Stevens maintains that a jury should decide whether her injury was caused solely by her failure to exercise ordinary care for her own safety or by the mechanic’s negligence. We agree.

Generally, issues of negligence, contributory negligence and lack of ordinary care are not susceptible to summary adjudication. Robinson v. Kroger Co., 268 Ga. 735, 739 (1) (493 SE2d 403) (1997). Summary judgment on such issues is appropriate only where the evidence is plain, palpable and indisputable.

Notwithstanding Sears’ contention to the contrary, viewing the evidence in the light most favorable to Stevens as the non-movant, we believe she presented sufficient proof to create a jury issue on whether Sears breached its duty to her. Coffey v. Wal-Mart Stores, 224 Ga. App. 824, 827, 828 (2) (482 SE2d 720) (1997). The characterization of the lift extender as an open and obvious condition in “plain view” is unsatisfying because the injury occurred when the mechanic suddenly kicked it into Stevens’ ankle. We cannot say as a matter of law that Stevens should have anticipated that action. Compare Robinson, 268 Ga. at 743 (1); see Greenforest Baptist Church v. Shropshire, 221 Ga. App. 465, 467 (471 SE2d 547) (1996). The fact that the lift extender was impelled into Stevens’ ankle distinguishes Meriwether Memorial Hosp. Auth. v. Gresham, 202 Ga. App. 535, 536-537 (414 SE2d 694) (1992), on which Sears relies.

There was contradictory evidence about the visibility of the warning signs. Stevens testified that she saw no warning signs prohibiting customer entry into the service area. Sears cited to no evidence demonstrating the visibility, positioning or size of the signs. Compare Taylor & Mathis, Inc. v. Doyle, 219 Ga. App. 445, 446 (465 SE2d 484) (1995) (physical precedent only). The jury must decide whether the signs provided sufficient notice that customers were barred from the service area.

Decided April 7, 1998.

Ellerin & Associates, Irwin M. Ellerin, for appellant.

Swift, Currie, McGhee & Hiers, Monique R. Walker, W. Ray Persons, for appellee.

Notwithstanding the effectiveness of the signs, the record raises questions of whether the sales associate and the mechanic knew Stevens had entered the forbidden area, but did nothing. See Globe Oil Co., USA v. DeLong, 182 Ga. App. 395, 396 (1) (356 SE2d 47) (1987). The sales associate testified that she knew Stevens was in the service area. The mechanic testified that he saw Stevens swing around the guardrail separating the customer entry area from the service area. But he did not look around before moving the lift extender and neither Sears employee testified that they informed Stevens she was in a prohibited area. In these circumstances, we are constrained to find that the questions of whether Stevens acted with ordinary care and whether her actions were the proximate cause of her injury are for the jury. Lipham v. Federated Dept. Stores, 263 Ga. 865, 866 (440 SE2d 193) (1994).

2. In light of our analysis, we need not reach Stevens’ remaining enumerations.

Judgment reversed.

Pope, P. J., and Beasley, J., concur.


text:
    A98A0385.
    In the Interest of F. L. S. IV et al., children.
    (502 SE2d 256)
   Judge Harold R. Banke.

The natural father of F. L. S. IV, T. S. and J. S. appeals from a juvenile court order terminating his parental rights. In his sole enumeration, he contends the court violated his due process rights by failing to arrange for his attendance at the termination hearing or for a live video communications hookup. The father’s incarceration in North Carolina, where he was serving time for murdering the children’s mother, prevented his attendance.

Decided April 7, 1998.

Rodney L. Allen, for appellant.

Thurbert E. Baker, Attorney General, Jeffrey L. Milsteen, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Stephanie M. Baldauff, Assistant Attorneys General, for appellee.

The record shows that the father received notice of the parental termination proceedings and counsel was appointed to represent him. Although the State offered to arrange for the father to participate in the proceedings telephonically, he refused. At the hearing, the father’s counsel moved to dismiss on the ground that his client’s inability to observe the demeanor of the State’s witnesses prevented him from assisting in cross-examination. The court reserved ruling on the motion and the hearing proceeded. After the hearing concluded, the trial court denied the father’s motion and terminated his parental rights. Held:

The trial court’s denial of the father’s motion to dismiss did not offend due process. The father’s inability to physically attend the termination proceedings was due solely to his inability to conform his conduct to the law. Notwithstanding the father’s refusal to participate via telephone, his appointed counsel appeared in his stead, cross-examining witnesses and vigorously arguing on his behalf. The father’s refusal to participate by telephone distinguishes In the Interest of M. S., 178 Ga. App. 380, 381 (343 SE2d 152) (1986), in which the parents were not permitted to see or hear their child’s testimony.

“[W]e know of no constitutional entitlement mandating the right to appear personally in civil proceedings under . . . [these] circumstances. [Cit.]” In the Interest of M. G. F., 222 Ga. App. 816, 818 (476 SE2d 100) (1996). Nor has the father provided such authority. See Griffith v. Brooks, 193 Ga. App. 762, 765 (1) (389 SE2d 246) (1989) (declining to reverse based on the trial court’s failure to arrange for inmate father’s attendance at termination hearing). In any event, pretermitting any purported error, the father’s failure to specify how his presence would have assisted in cross-examination precludes the requisite showing of harm. In the Interest of R. J. P., 222 Ga. App. 771, 773 (3) (476 SE2d 268) (1996).

Judgment affirmed.

Pope, P. J., and Beasley, J., concur.

       The father pleaded guilty to second degree murder.


text:
    A98A0418.
    BUFORD v. BENTON.
    (501 SE2d 272)
   Blackburn, Judge.

Margaret Perkins Buford sued George Benton for injuries sustained in a car wreck, claiming that such wreck was caused by Benton’s negligent driving. After trial, the jury returned a verdict in favor of Benton, and Buford appeals, claiming that the trial court (1) improperly failed to charge the jury on the doctrine of sudden emergency, (2) improperly excluded certain medical records from evidence, and (3) improperly excluded a summary of medical expenses and lost wages from evidence. For the reasons set forth below, we affirm the verdict.

On April 17, 1993, at about 12:30 p.m., in broad daylight, plaintiff Buford rear-ended Benton’s car while driving down Georgia Highway 29. Buford contends that Benton’s vehicle was traveling ahead of her vehicle and they were both traveling at approximately 50 mph, when she realized Benton’s vehicle had come to a stop. There were no skid marks. Buford contends that she ran into the rear of Benton’s vehicle because Benton’s vehicle had no brake lights. Buford testified that she “didn’t slam my brakes on, I eased my brakes on.” Buford acknowledged that she took no notice of Benton’s vehicle slowing from 50 mph to a stop directly in front of her. Buford testified that she did not see any lights on Benton’s vehicle, she did not testify that there were no lights. Indeed, Buford conceded that she would defer to investigating officer Talley as to the existence of operative lights on the rear of Benton’s vehicle at the time of the accident. Trooper Talley testified that one of the bulbs on the rear lights was working after the accident.

Benton contended that he stopped at a normal rate to make a left turn, that he used his turn signal, and that his brake lights were working. Each of the parties blamed the other for causing the accident.

1. In her first enumeration of error, Buford contends that the trial court erroneously failed to charge the jury on sudden emergency, as requested by her.

“The defense of emergency is not available unless the evidence shows that there has been a sudden peril caused by circumstances in which the defendant did not participate and which offered him a choice of conduct without time for thought so that negligence in his choice might be attributable not to lack of care but to lack of time to assess the situation. . . . The doctrine requires that the person confronted by the emergency have the opportunity to exercise one of several reasonable alternative courses of action. In the absence of such factors, there can be no conduct to which to apply the standard and the doctrine is inapplicable.” (Punctuation and emphasis omitted.) Thomas v. Stairs, 215 Ga. App. 288, 289 (1) (450 SE2d 326) (1994). A plaintiff may also use the doctrine of sudden emergency as a defense in connection with the issue of comparative negligence, as Buford wished to do here. Robinson v. MARTA, 197 Ga. App. 628, 629 (2) (399 SE2d 252) (1990) (physical precedent).

In addition, Trooper Robert Talley, the investigating officer, testified that he noted on the traffic report that Buford had been following Benton too closely and driving too fast for conditions prior to the collision. Under the facts of this case, including the fact that Buford contributed to the accident by following too closely and driving too fast, we cannot say that the trial court erred by not charging the jury on the doctrine of sudden emergency.

2. In her second enumeration of error, Buford contends that the trial court erroneously excluded from evidence certain medical records with regard to her injuries and treatment.

“If a hospital record contains diagnostic opinions and conclusions, it cannot, upon proper objection, be admitted into evidence unless and until the proper foundation is laid, i.e., the person who entered such diagnostic opinions and conclusions upon the record must qualify as an expert and relate the facts upon which the entry was based. Exactly the same rule applies to any inadmissible testimony contained in the hospital record, including hearsay, and hospital records admitted in toto rather than through selected relevant portions were inadmissible because of the presence therein of hearsay, statements of opinion, and similarly objectionable items.” (Citations and punctuation omitted.) Dennis v. Adcock, 138 Ga. App. 425, 428 (2) (226 SE2d 292) (1976). Furthermore, OCGA § 24-3-14 (b), the business records exception to the rule against admission of hearsay, provides “[a]ny writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event shall be admissible in evidence in proof of the act, transaction, occurrence, or event, if the trial judge shall find that it was made in the regular course of any business and that it was the regular course of such business to make the memorandum or record at the time of the act, transaction, occurrence, or event or within a reasonable time thereafter.” At trial, Buford offered no testimony from anyone which would satisfy these foundational requirements. As such, we cannot say that the trial court abused its discretion in excluding Buford’s medical records.

3. In her final enumeration of error. Buford contends that the trial court improperly excluded from evidence a summary sheet which contained calculations of both her medical expenses and lost wages. Pretermitting the issue of whether this summary sheet was properly excluded, all of the information it contained was brought out in Buford’s direct examination. As a result, even if the summary sheet were improperly excluded, there would be no error because the jury had already been given the same information previously.

Decided April 7, 1998.

William L. Jones, for appellant.

Wood, Odom & Edge, Arthur B. Edge W, for appellee.

Judgment affirmed.

McMurray, P. J., and Eldridge, J, concur.


author: Johnson, Judge.

text:
    A98A0433.
    WRIGHT v. THE STATE.
    (501 SE2d 543)
   Johnson, Judge.

A jury found John Wright guilty of selling cocaine. He appeals from the conviction entered on the verdict and the denial of his motion for new trial.

1. Wright claims that the trial court erred in denying his motion for new trial when the state failed to rebut his prima facie case of entrapment. We disagree.

“Three distinct elements embody the entrapment defense under OCGA § 16-3-25: (1) the idea for the commission of the crime must originate with the state agent; (2) the crime must be induced by the agent’s undue persuasion, incitement, or deceit; and (3) the defendant must not be predisposed to commit the crime. If the defendant presents a prima facie case of entrapment, the burden shifts to the State to disprove the defense beyond a reasonable doubt as one of the elements of the crime.” (Citations and punctuation omitted.) Brooks v. State, 224 Ga. App. 829, 830 (1) (482 SE2d 725) (1997).

Viewed in a light most favorable to the verdict, the evidence shows: A confidential informant told an undercover narcotics agent that he could buy cocaine from a man named Donald Perkins. The agent and the informant met with Perkins in a hotel room where Perkins made several phone calls in an attempt to locate drugs. Perkins left the room and later returned with Wright and another man. At Wright’s suggestion, Wright and the informant stepped into the bathroom. As the agent watched, the informant handed $100 to Wright and Wright gave the informant seven rocks of crack cocaine. Wright, his companion, and Perkins were arrested.

Wright points to the following as evidence that he was entrapped: (1) Perkins approached him in order to persuade him to sell cocaine; (2) Wright initially refused to participate in the sale, and did not agree to furnish the drugs until Perkins came back to his apartment “two or three times”; and (3) Wright only agreed to participate after Perkins told him that the confidential informant would forgive a prior debt Wright owed the informant and that Wright could earn money to pay his delinquent rent.

Even assuming for purposes of this opinion that Wright presented a prima facie case of entrapment, and further assuming the idea originated with the agent, the state presented sufficient evidence to rebut Wright’s claim that he was subjected to undue persuasion, incitement or deceit, and that he was not predisposed to sell cocaine.

Although Wright testified that he turned Perkins down several times before agreeing to participate in the sale, Perkins contradicted that testimony. Perkins testified that when he asked Wright where he could buy cocaine, Wright responded that he had some. On cross-examination, Perkins, who had walked to Wright’s apartment, testified that when first asked, Wright turned him down only because “[t]here was a problem in the location” of the proposed sale. The second time Perkins asked, Wright agreed to make the sale and even arranged transportation for the two men to get to the hotel. The jury was authorized to find that Perkins was more credible. See generally Gibson v. State, 212 Ga. App. 301, 303 (441 SE2d 803) (1994).

In any event, the fact that an informant made repeated requests, without more, does not constitute entrapment. See Haralson v. State, 223 Ga. App. 787, 789 (1) (479 SE2d 115) (1996). “The phrase ‘undue persuasion’ as used in OCGA § 16-3-25 means something more than repeated requests on the part of an officer or agent for contraband goods. The evidence demonstrates that [Wright was a willing purchaser], and even if the idea to sell the [cocaine] originated with the informant and the [agent], there is no entrapment where the officer merely furnishes an opportunity to a defendant who is ready to commit the offense.” (Citations and punctuation omitted.) Evans v. State, 209 Ga. App. 340, 341 (1) (433 SE2d 426) (1993).

Nor has Wright demonstrated entrapment by claiming that Perkins unduly persuaded him to sell cocaine by offering him money when Wright was struggling financially. If such was sufficient, practically every offender could show entrapment on that basis. See Ellis v. State, 164 Ga. App. 366, 367 (1) (296 SE2d 726) (1982). Wright has not shown entrapment by testifying that he saw the sale as an opportunity to repay a favor to the informant. See generally Venable v. State, 203 Ga. App. 517, 518 (3) (417 SE2d 347) (1992).

As to Wright’s predisposition to sell cocaine, the state introduced evidence that he pled guilty to sale of cocaine in 1991 and possession of cocaine in 1992. The issue of predisposition is generally one for the jury to decide. See Hattaway v. State, 185 Ga. App. 607, 608 (365 SE2d 480) (1988). The trial court charged the law of entrapment and the jury decided the issue adversely to Wright. The jury was authorized to find from the evidence that Wright was predisposed to distribute cocaine and that he did so without any undue persuasion, incitement, or deceitful means on the agent’s part. See Venable, supra at 518-519 (3).

Decided April 7, 1998.

William J. Mason, for appellant.

We are not persuaded by Wright’s argument that Wilkey v. State, 203 Ga. App. 1 (416 SE2d 350) (1992), requires a contrary result. In Wilkey, unlike here, the state failed to present any evidence showing the defendant was predisposed to commit the offense. The state also failed to present any evidence contradicting the defendant’s testimony that the informant, who was his brother, made repeated, frantic requests for drugs, claiming their family was being threatened and would be harmed if the informant did not get the drugs. Because in the instant case the state did present evidence rebutting Wright’s defense, no grounds for reversal have been presented here. See Armand v. State, 164 Ga. App. 350, 352 (296 SE2d 734) (1982).

2. Wright contends that the trial court erred in denying his motion for new trial because the indictment alleged he sold “Cocaine, a Schedule II Controlled Substance” but the state failed to prove at trial that the drug sold was “a Schedule II Controlled Substance.” The parties stipulated at trial that the substance sold was crack cocaine. The state was not required to prove that crack cocaine was a Schedule II substance in order to convict Wright of violating OCGA § 16-13-30 (b). Freeman v. State, 201 Ga. App. 216, 217 (2) (410 SE2d 749) (1991). The reference to “a Schedule II Controlled Substance” in the indictment was mere surplusage; it was an unnecessary description of an unnecessary fact. Id. There was no fatal variance. We further note that the alleged variance was not fatal because there is no reasonable probability that Wright misunderstood the charges against him, was surprised or harmed by the wording of the indictment, or is not protected against a later prosecution for the same offense. See In the Interest of M. J. H., 193 Ga. App. 621, 627 (2) (388 SE2d 738) (1989).

Judgment affirmed.

Birdsong, P. J., and Smith, J., concur.

J. Gray Conger, District Attorney, Margaret E. Bagley, Assistant District Attorney, for appellee.


text:
    A98A0511.
    BALL v. THE STATE.
    (501 SE2d 281)
   Johnson, Judge.

A jury found James William Ball guilty of reckless conduct, aggravated assault, and possession of a firearm during the commission of a felony. Ball was found not guilty of two counts of kidnapping and one count of false imprisonment. Ball appeals the convictions entered on the jury’s verdict. We affirm.

1. In his first enumeration of error, Ball contends the evidence was insufficient to support his convictions. On appeal, the evidence is viewed in the light most favorable to support the jury’s verdict, and Ball no longer enjoys a presumption of innocence; moreover, an appellate court does not weigh evidence or assess credibility, but only determines evidence sufficiency. Morris v. State, 228 Ga. App. 90, 91 (1) (491 SE2d 190) (1997). Viewed in this light, the evidence shows that Ball fired two shots at his wife, Michelle Briscoe, and her lover, William Johnson, from about twenty feet away. One of these shots struck Johnson in the leg. Johnson did not threaten Ball prior to Ball shooting at him. In addition, Ball admitted he knew of his wife’s affair prior to the shooting and that he knew Johnson was unarmed at the time of the shooting.

Ball asserts the evidence is insufficient to support the verdict because Johnson did not testify at trial and because the evidence shows that Ball shot Johnson out of fear for his own life. As to his first contention, it is well-established that it is not necessary for the victim of an aggravated assault to testify at trial. See Heard v. State, 204 Ga. App. 757, 759 (2) (420 SE2d 639) (1992); Steele v. State, 196 Ga. App. 330 (2) (396 SE2d 4) (1990). The testimony of Ball’s wife was sufficient to authorize Ball’s convictions of all three offenses under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Id.

Ball’s second contention, that he acted in self-defense, goes to witness credibility and the weight of the evidence, determinations which are soundly within the jury’s province. The evidence was sufficient to support the convictions. See Morris, supra; Heard, supra.

2. In his second enumeration of error, Ball asserts he was denied effective assistance of counsel. When inadequate representation is alleged, the burden is on the defendant to establish that (1) his attorney’s representation in specified instances fell below an objective, standard of reasonableness; and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Anderson v. State, 228 Ga. App. 453, 457 (2) (491 SE2d 893) (1997). The trial court’s determination regarding whether the defendant has been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous. Id.

Specifically, Ball contends that his counsel was ineffective because he failed to comply with the notice requirements of Uniform Superior Court Rule 31.6, which permit the admission of evidence of specific acts of violence by the victim against third parties upon at least ten days notice to the trial court. Ball further asserts that his trial counsel failed to consult sufficiently with him in order to locate individuals who would have provided tins type of evidence. We disagree.

Ball’s trial counsel has practiced law for 20 years. He was appointed to represent Ball and first interviewed Ball at the detention center prior to the preliminary hearing. Following the preliminary hearing, Ball posted bond and returned to New York. Ball admits that he and his trial counsel had a number of telephone conversations while he was in New York. Trial counsel next personally met with Ball at the calendar call, where they announced ready for trial subject to outstanding discovery issues.

The day following the calendar call, trial counsel served the state with his Rule 31.6 notice of intent to introduce specific acts of violence committed by Johnson. This notice did not include specific information and was not served within ten days of trial. See USCR 31.1. At the hearing on the motion for new trial, trial counsel testified that Ball was unable to give him the names of third persons against whom Johnson committed acts of violence. According to trial counsel,- he submitted this notice in the event he came up with something later. Trial counsel testified that if he had had any specific information, he would have included it in his Rule 31.6 notice. Ball admitted that at the time of trial, he did not have any specific names, dates and places.

Trial counsel testified that he knew of the ten-day mandate in Rule 31.1, but had nothing specific to present to the court ten days before trial, during trial or during the hearing on the motion for new trial regarding violent acts committed by Johnson against third persons.

Trial counsel testified that he employed an investigator to find witnesses to the shooting and individuals who knew of any violent acts committed by Johnson. The investigator interviewed people who worked in and patronized the business where the shooting occurred. However, no individuals were located who would testify that Johnson committed acts of violence against them.

Decided April 7, 1998.

Henderson & Lipscomb, Lyle K. Porter, for appellant.

Daniel J. Porter, District Attorney, David K. Keeton, Assistant District Attorney, for appellee.

Trial counsel’s failure to file a timely or sufficient notice regarding this evidence does not fall below an objective standard of reasonableness in this case. Anderson v. State, supra. Neither Ball nor the investigator was able to identify any specific instances of violence committed by Johnson against third persons. Johnson v. State, 266 Ga. 380, 381 (2) (467 SE2d 542) (1996), cited by Ball, is distinguishable. In Johnson, trial counsel failed to follow up on potentially viable Rule 31.6 evidence of which he knew more than ten days before trial but erroneously believed would be inadmissible. Id. at 382. In the present case, the evidence shows that trial counsel did not know of any potentially viable Rule 31.6 evidence.

While Ball claimed he knew the names of specific individuals and would have identified them if asked by his trial counsel, the evidence shows that Ball could not name any of these individuals during his proffer at trial and that neither trial counsel nor the investigator could locate any such individuals. It is the function of the trial court at the hearing on the motion for new trial to determine witness credibility and to resolve any conflicts in the testimony. Mobley v. State, 264 Ga. 854, 856 (2) (452 SE2d 500) (1995). The trial court did not err in finding that Ball’s trial counsel provided effective assistance of counsel.

Judgment affirmed.

Birdsong, P. J, and Smith, J., concur.


author: Ruffin, Judge.

text:
    A98A0697.
    BRYANT v. THE STATE.
    (501 SE2d 278)
   Ruffin, Judge.

A jury found Willie James Bryant guilty of theft by shoplifting. Bryant appeals from the denial of his motion for new trial, asserting that the trial court erred by refusing to give Bryant’s attorney access to the arresting officer’s police report that the officer used at trial to refresh his memory. We affirm.

Viewed in a light most favorable to support the verdict, the evidence shows that Bryant entered a Piggly Wiggly grocery store in Chatham County, Georgia at approximately 5:30 p.m. on June 6, 1996. A store manager noticed Bryant removing some packages containing meat from a display. Bryant did not have a shopping cart or shopping basket. The manager stated that Bryant’s actions seemed odd because Bryant was not picking over the meat packages to find the most visually appealing meat, as most customers do. The manager further noted that after picking up two meat packages, Bryant placed them face to face, which, according to the manager, was the manner in which many shoplifters carry meat packages so that blood does not drip onto their clothes and bodies. The manager also testified that as Bryant walked away from the meat department, he kept looking over his shoulder to watch the manager. As Bryant turned down a store aisle, the manager alerted an off-duty police officer employed by the store that Bryant was acting suspiciously and might be shoplifting.

After the manager pointed out Bryant to the officer, the officer saw Bryant carrying an item in his hand. While the officer could not see what the item was, he noticed that the item was packed in pink styrofoam, which was typically used by the store to package meat. The officer lost sight of Bryant as Bryant turned down an aisle. As the officer approached the aisle, Bryant came back out of the aisle. The officer noticed that Bryant was no longer carrying anything in his hand. Upon seeing the officer, Bryant turned around and began heading back down the aisle. As the officer reached the aisle, he saw Bryant remove something from his shorts and throw the item onto some large bags of dog food. The officer then placed Bryant under arrest and retrieved the item that Bryant had thrown, a dual pack of rib eye steaks. The officer testified that Bryant had no money on him at the time of his arrest. Bryant was charged with violating OCGA § 16-8-14. See OCGA § 16-8-14 (a) (1) (“A person commits the offense of theft by shoplifting when he[,] . . . with the intent of appropriating merchandise to his own use without paying for the same or to deprive the owner of possession thereof ... (1) [cjonceals or takes possession of the goods or merchandise of any store or retail establishment[.]”).

The officer admitted during cross-examination at trial that he reviewed his police report on the arrest immediately before testifying. Bryant’s attorney asked for permission to see the report, which the trial court denied. Bryant raised this issue in his motion for new trial. The trial court, in denying the motion, concluded that pretermitting whether the court erred in not allowing Bryant’s attorney access to the police report, “the denial of access did not contribute to [Bryant’s] conviction.”

On appeal, the State does not dispute that the trial court erred in prohibiting the defense attorney from reviewing the report. However, it argues that the error was harmless. We agree.

The Supreme Court has made clear that “if a witness used documents to refresh his memory after the inception of trial, then the cross-examiner is entitled to examine such documents.” Sterling v. State, 267 Ga. 209, 211 (3) (477 SE2d 807) (1996); see also Johnson v. State, 259 Ga. 403, 405 (383 SE2d 118) (1989). We conclude that while the trial court should have allowed Bryant’s counsel to examine the document, the error is not reversible. “[B]ecause of the overwhelming evidence against [Bryant], ‘it is highly probable that the error committed as a result of the denial of the motion did not contribute to the verdict and is, therefore, harmless. [Cit.]’ [Cit.]” Sterling, supra at 211; Johnson, supra.

Decided April 7, 1998.

Richard M. Darden, for appellant.

Spencer Lawton, Jr., District Attorney, Ronald M. Adams, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, P. J., and Beasley, J., concur.