author: Pope, Presiding Judge.

text:
    A01A2392.
    In the Interest of B. F., a child.
    (560 SE2d 738)
   Pope, Presiding Judge.

The father of B. F. appeals following the termination of his parental rights. He asserts that there was insufficient evidence to support the juvenile court’s order. We agree and reverse.

In determining whether a termination of parental rights is supported by sufficient evidence, we construe [the] evidence and all reasonable inferences from it in a light most favorable to the trial court’s ruling and ask whether a rational trier of fact could have found by clear and convincing evidence that the natural parents rights had been lost.

(Citation omitted.) In the Interest of J. E. L., 223 Ga. App. 269 (1) (477 SE2d 412) (1996).

Viewed in that light, the evidence at the termination hearing showed that in February 1999, the father was arrested on a charge of driving with a suspended license. At the time, B. F. was living with the father and the mother’s whereabouts were unknown, so the child was placed in the custody of the Department of Family & Children Services. A review hearing was scheduled with regard to B. F. on June 1, 1999, but when the father failed to appear, the juvenile court issued an arrest warrant. After the father explained that he was incarcerated at the time of the June hearing, he was released from jail on the warrant.

At a later hearing on October 5, 1999, the juvenile court found that the father had failed to comply with the court’s March 8, 1999 order in that he had failed to seek and maintain full-time employment; he had failed to maintain a stable home for a period of six months; he had failed to have a complete drug and alcohol assessment and to follow the recommendations of that assessment; and he had failed to complete parenting classes. On January 18, 2000, the father failed to appear for another review hearing. The juvenile court found him to be in wilful contempt and issued a second arrest warrant. The father testified that he never received notification of this hearing. He was released from that warrant after accepting service of the petition for termination of his parental rights.

The hearing on the petition for termination was held over a period of two days in October and November 2000. A DFACS caseworker testified that after coming into the department’s custody, B. F. was placed in a foster home until August 2000 when he went to live with his paternal grandparents. While in foster care, B. F. received counseling and was placed on Ritalin to help with his school grades. A DFACS caseworker testified that since being placed with his grandparents, B. F. had been doing well. He was taken off Ritalin, but planned to continue with counseling. He was receiving tutoring to help with two of his classes, and the caseworker said he seemed “focused and excited about school.” She stated that the counseling was to assist B. F. in showing his emotions and feelings as he tended to suppress them. The focus of this counseling is at least partially attributable to an incident where B. F. burst into tears during a visit with his father. The caseworker admitted, however, that B. F.’s reaction to seeing his father by bursting into tears may have been an indication that he loved and missed his father.

Between the time B. F. was taken into DFACS custody and the termination hearing, the father had visited him five times, three of which occurred within one and one-half months before the termination hearing in October 2000. The father had attempted to visit the child on one other occasion, his birthday on March 31, 2000, but the child already had plans for the day. The caseworker attempted to reschedule, but informed the father that there was an outstanding arrest warrant for him. She told the father that DFACS would have to contact the authorities if that remained outstanding. The father said that he would try to clear that up and contact her a few days later. She did not hear from him.

The caseworker stated that the father had never presented any verification that he had completed a parenting class or substance abuse assessment as ordered by the court. But she admitted that B. F. was taken into custody due to his father’s arrest and not based upon any evidence of abuse or drug use. The caseworker also testified that the father had never provided DFACS with an address where he was living, nor had he attempted to make any financial contributions to B. F.’s support. But she conceded that the father had been in jail for a significant amount of time since January 1999, which may have affected his ability to contribute financially or to comply with the court’s order.

The father filed a petition to legitimate B. F. in connection with the termination proceedings, and the juvenile court granted that petition. He had never previously made any attempt to legitimate B. F. and had never attempted to legitimate A. F., his other child, who resided primarily with her mother. The father testified that he had been residing in a three-bedroom trailer for a period of six months prior to the hearing, although by the time of the November hearing date, he had moved into a two-bedroom trailer with a friend. He stated that he could obtain access to a three-bedroom trailer at anytime if B. F. came to live with him.

Prior to living in the trailers, the father had been in jail off and on. The father spent from six to nine months in jail in 1999 on the suspended license charge and the resulting probation violation, and other jail time was attributable to the arrest warrants issued by the juvenile court. He was released from jail in January 2000.

At the time of the hearing the father was employed with a tree service company, but received no health benefits. The father admitted that he made no attempt to support B. F. financially since the child was placed in DFACS custody because no one ever mentioned anything to him about making payments. He later stated that he had tried to give B. F.’s stepgrandmother some money toward the child’s support, but that she had refused to take it.

The father stated that he never attended any parenting class because he did not need to. He described himself as a good parent and said that he “didn’t need to go sit in an office and have people tell me what I was and what I wasn’t.” But at the second hearing date, he stated that he had tried to attend parenting classes while in jail, but that they had been suspended. He stated, however, that if he got custody of B. F. back he would do anything he was asked to do, including attending classes.

The child’s paternal stepgrandmother testified that B. F. was living with her husband and her at the time of the hearing. She stated that the child had lived with them previously in 1995 “when neither parent was available.” At that time, they were called in the middle of the night to pick up B. F. and A. F. by the Cobb County police. They kept them for several months, before the father came for a visit. The stepgrandmother testified that B. F.’s current stay with them was going well and that she believed that he would benefit by staying longer. Prior to the current stay, the grandparents had not known for four years where their grandchildren were.

At the close of the evidence, B. F.’s guardian ad litem stated that she could not recommend the termination of the father’s parental rights at that time because she could not say it was in the child’s best interest.

The juvenile court employs a two-prong analysis for determining whether parental rights should be terminated under OCGA § 15-11-94. “First, the court determines whether there is clear and convincing evidence of parental misconduct or that the parent is unable to care for and control the child. Second, the court determines whether termination is in the best interest of the child.” (Citations omitted.) In the Interest of S. H. P., 243 Ga. App. 720 (534 SE2d 161) (2000).

A finding of parental misconduct requires clear and convincing evidence of the following four factors:

1) that the child is deprived; 2) that the cause of the deprivation is a lack of proper parental care or control; 3) that the cause of the deprivation is likely to continue or will not likely be remedied; and 4) that the continued deprivation is likely to cause physical, mental, emotional, or moral harm to the child. OCGA § [15-11-94] (b) (4) (A).

(Citation and punctuation omitted.) In the Interest of J. M. B., 231 Ga. App. 875, 876 (501 SE2d 259) (1998).

In this instance, the father is bound by the trial court’s prior finding of deprivation because he did not appeal it. In the Interest of L. H., 236 Ga. App. 132, 134 (1) (511 SE2d 253) (1999); In the Interest of E. C., 225 Ga. App. 12, 14-15 (482 SE2d 522) (1997).

The initial cause of that deprivation can be directly attributed to the father’s incarceration at the time B. F. came into DFACS custody. As the father was in jail for six to nine months during 1999, he was unable to care for B. F., and the mother’s whereabouts were unknown.

Nevertheless, there must also be clear and convincing evidence that the cause of that deprivation is likely to continue. Here, the evidence showed that the father had served his time and resolved his legal issues, thus clearing the way for him to obtain a driver’s license. Accordingly, there was no evidence to show a likely recurrence of the father’s incarceration. And incarceration, in the absence of aggravating factors, does not automatically compel the termination of parental rights. See In the Interest of M. C. L., 251 Ga. App. 132, 134 (1) (a) (553 SE2d 647) (2001).

The juvenile court did rely, however, upon several additional factors in its finding of parental misconduct or inability on the part of the father. The court found that the father “excessively uses or has a history of chronic unrehabilitated abuse of intoxicating liquors or dangerous drugs or controlled substances with the effect of rendering the father incapable of providing adequately” for the child. But we find no evidence in the record to support such a finding. The evidence showed that the father received two convictions for DUI in approximately 1991 or 1992, which led to the suspension of his driver’s license. But there was no evidence of any chronic alcohol or drug abuse in the intervening seven to eight years. Certainly, the DFACS caseworker testified that drugs and alcohol played no factor in 1999 when the department took custody of B. F. The only evidence as to the father’s alcohol consumption was his own testimony that he drank no more than a 12-pack of beer per month. And B. F.’s mother testified that she had never known the father to abuse drugs during the time they spent together.

The juvenile court also found that the father failed to support B. F. and failed to comply with the court’s order. While it is true that the father did not provide any financial support while B. F. was in DFACS custody, he testified, without contradiction, that he did attempt to contribute money while his child was in his parents’ care. And while there is no evidence that the father had attended parenting classes or obtained a drug or alcohol evaluation as required by the court’s order, there was evidence that during the periods between his incarcerations and afterward, the father maintained a job in a tree service. In addition, there was evidence that he had made attempts to find a suitable home for B. F.

The last factor upon which the juvenile court relied was a finding that the father had failed to develop and maintain a parental bond with B. F. in a meaningful, supportive manner. Both parents testified, however, that a strong bond existed between B. F. and his father. The father had cared for B. F., with the exception of one period of several months, from the time he was three months old until the time he went into DFACS custody. The parents testified that they saw to B. F.’s health and that the father was very involved in the child’s life and schooling. They also testified that the child made good grades in school while under the father’s care, with no recommendation that he be placed on Ritalin. This evidence was uncontradicted. And the evidence showed that after his final release from prison, he began visiting B. F., albeit sporadically at first. Based upon our review of the record, therefore, we cannot say that there was clear and convincing evidence to support a finding that the cause of the deprivation was likely to continue.

And even if there were sufficient evidence to support a finding of' continued deprivation, termination of the father’s parental rights would not be warranted because there is absolutely no evidence in the record that any continued deprivation is likely to cause physical, mental, emotional, or moral harm to the child. There was no testimony that any potential or actual harm would result to B. F. from a continued relationship with his father or that B. F. was suffering from being in foster care or that he would suffer if he did not find permanent placement.

Decided February 21, 2002.

O’Brien & Koontz, David J. Koontz, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Assistant Attorney General, Sanders B. Deen, for appellee.

Accordingly, the juvenile court’s termination of the father’s parental rights must be reversed. See In the Interest of D. F., 251 Ga. App. 859 (555 SE2d 225) (2001); In the Interest of J. M., 251 Ga. App. 380 (554 SE2d 533) (2001).

Judgment reversed.

Blackburn, C. J., and Mikell, J., concur.


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A01A1896.
    COLE et al. v. FAUK et al.
    (560 SE2d 772)
   Ruffin, Judge.

Elizabeth and Doy Cole, parents of Betsy Cole, sued Nathan Fauk and his parents, Mark and Emily Fauk (the Fauks), after a car that Nathan was driving struck a tree, injuring his passenger, Betsy. The Coles sought damages from the Fauks and payment of uninsured motorist benefits from both State Farm Insurance, the insurer for the Cole family, and from USAA, the insurer for the Fauk family. The Fauks, USAA, and State Farm filed separate motions for summary judgment, which the trial court granted. The Coles appeal, and for reasons that follow, we affirm.

In order to prevail on a motion for summary judgment, the movant must demonstrate “that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” A defendant may obtain summary judgment by demonstrating that the record contains no evidence sufficient to create a jury issue on at least one essential element of the plaintiffs’ case. A defendant is not required to affirmatively disprove the plaintiffs’ case, but may prevail by pointing to the absence of evidence to support the plaintiffs’ case. If the defendant does so, the plaintiffs cannot rest on their pleadings, but must point to specific evidence giving rise to a triable issue of fact.

Viewed in this light, the record shows that Nathan turned fifteen on November 30, 1997, and obtained an instruction permit driving license three days later. Under Georgia law, the instruction permit allowed Nathan to drive as long as he had a licensed driver age 21 years or older in the car. In addition to this restriction, Nathan’s parents established the rule that Nathan could drive only if he had a parent, his older sister, or another “responsible adult” that the parents knew in the car.

In early May 1998, Nathan began dating Betsy Cole, who was a senior at his school. Betsy, who was 18 and had a valid driver’s license, drove a Ford Mustang. After school on May 13, 1998, Betsy and Nathan decided to go to a video store to rent a movie. Although Betsy was not supposed to let anyone else drive the Mustang, she asked Nathan if he wanted to drive to the store, and he said, “sure.” While driving to the store, Nathan lost control of the Mustang, and the car struck a tree. The Mustang was totally destroyed, and both Betsy and Nathan were seriously injured. Although Nathan eventually recovered, Betsy sustained a brain injury that resulted in memory loss and paralysis.

Because of Betsy’s injuries, her mother was appointed as her guardian. In this capacity, Elizabeth Cole, along with her husband, sued Nathan and his parents. According to the complaint, the Fauks are liable for negligently failing to control their minor child and for negligently furnishing him with a driver’s license “when they knew or should have known that he was incapable of controlling his behavior . . . [and] that he was incapable of driving, controlling, and operating a vehicle safely.”

In addition to serving the Fauks, the Coles served State Farm Insurance, seeking payment of uninsured motorist benefits under the Coles’ policy. The Coles also served USAA, the company that insured the Fauk family, seeking uninsured motorist benefits. The Fauks and both insurance companies moved for summary judgment. The Fauks argued that they could not be held liable for the negligence of their son and, thus, were entitled to summary judgment. Both insurers asserted that the Coles were not entitled to uninsured motorist benefits. The trial court agreed with the defendants and granted all three motions for summary judgment.

1. In two enumerations of error, the Coles contend that the trial court erred in concluding, as a matter of law, that the Fauks could not be held liable under OCGA § 51-2-3. Under this Code, section, parents may be held liable “for the willful or malicious acts of [their] minor child.” According to the Coles, the issue of whether Nathan’s actions were malicious should have been left to a jury. We disagree.

As a general rule,

parents are not liable in damages for the torts of their minor children merely because of the parent-child relationship; when liability exists it is based on a principal-agent or a master-servant relationship where the negligence of the child is imputed to the parent, or it is based on the negligence of the parent in some factual situation such as allowing the child to have unsupervised control of a dangerous instrumentality.

In order to impose parental liability under OCGA § 51-2-3, the Coles must point to evidence that Nathan’s parents “knew of [their] child’s proclivity or propensity for the specific dangerous activity.” The mere fact that parents know their child is prone to disobedience is not sufficient to impose liability. Here, the Fauks testified unequivocally that Nathan was not allowed to drive with anyone other than a family member and that they had no reason to believe their son would disregard their rules. Although Mrs. Cole had a suspicion that Nathan had driven the Mustang on another occasion based upon the seat position in the car, she was not able to testify with any certainty that Nathan had, in fact, done so, nor was she able to point to any evidence that Nathan’s parents knew of any such incident. Under these circumstances, the trial court correctly granted summary judgment to the Fauks.

The case cited by the Coles, Alterman v. Jinks, does not demand a different result. In that case, Alterman sent his maid in his car to pick up his 15-year-old son and instructed the maid to let the boy drive back home. On the return trip, the boy drove the car into oncoming traffic, injuring the maid. The issue presented was whether the father acted negligently in permitting his son to drive the car. Here, the Fauks did not direct Betsy to let their son drive. To the contrary, the Fauks did not know that their son had driven his girlfriend’s car Until after the accident. It follows that Alterman does not control.

2. In a separate enumeration of error, the Coles ask this Court to hold the Fauks liable as a matter of public policy. The Coles ask that we “shift the imputation of [liability] for a child’s negligence . . . from merely furnishing the minor a dangerous instrumentality [and] . . . extend that imputation of liability to . . . situations where the parent could foresee . . . the child’s conduct.” According to the Coles, this would alleviate “the current status of mayhem in Georgia . . . from affluent teenagers killing themselves and others for lack of supervision.” We note, however, that it is the role of the legislature, not the judiciary, to determine public policy. If the legislature decides to expand parental liability, it may do so. Until then, this Court will continue to enforce the law as written.

3. Evidently, the Coles sought to recover uninsured motorist benefits from both State Farm and USAA. The trial court concluded that the Coles were not entitled to recover from State Farm, finding that the Mustang “was excluded by the terms of the [insurance] policy from being an uninsured motor vehicle.” With respect to USAA, the trial court determined that the Coles could not recover uninsured motorist benefits because the liability coverage exceeded the uninsured motorist benefits provided by USAA. The Coles challenge these rulings.

In their brief, the Coles quote the insurance policies and list the coverage available under the various plans. The Coles do not, however, cite to the record to support these quotes, and it does not appear from our cursory review of the record that copies of the policies were included. “ ‘ “When a portion of the record is not before this court which is necessary for our determination of one or more of the appellate issues raised, an affirmance as to those issues must result.” ’ ” Here, the policies are necessary to address the alleged error on appeal. In view of their absence, we affirm.

Judgment affirmed.

Johnson, P. J., and Ellington, J., concur.

Decided February 22, 2002.

Donald W. Johnson, for appellants.

Saveli & Williams, John C. Parker, Robert E. Mulholland, Lisa J. Bucko, Beck, Owen & Murray, William M. Dallas III, Barrickman, Allred & Young, Fredric S. Young, Joan G. Grumpier, for appellees.

        Traicoff v. Withers, 247 Ga. App. 428 (544 SE2d 177) (2000).

       See id.

       See id.

       See id.

       See OCGA § 40-5-24 (a) (1).

       OCGA § 51-2-3 (a).

       (Punctuation omitted.) McNamee v. A. J. W., 238 Ga. App. 534, 535 (1) (519 SE2d 298) (1999).

        Jackson v. Moore, 190 Ga. App. 329, 330 (378 SE2d 726) (1989) (standard for imposing liability where parent did not provide dangerous instrumentality).

       See id.

       122 Ga. App. 859 (179 SE2d 92) (1970).

       Id. at 863.

       See Commonwealth Investment Co. v. Frye, 219 Ga. 498, 499 (134 SE2d 39) (1963).

       See id.

       Assuming, for the sake of argument, that copies of the policy are buried in the record, we remind appellants that “ ‘it is not the fhnction of an appellate court to cull the record.’ ” Galloway v. Linnell, 242 Ga. App. 221, 222 (2) (529 SE2d 226) (2000).

        Hanover Credit Corp. v. Datamatx, 226 Ga. App. 12, 13 (485 SE2d 571) (1997).


text:
    A01A1901.
    RIDLEY et al. v. STATE OF GEORGIA.
    (560 SE2d 769)
   Pope, Presiding Judge.

Andre Edward Weems and Reginald Clyde Ridley appeal the superior court’s order of forfeiture regarding certain currency they claim was their property. For the following reasons, we agree with their arguments and reverse.

On November 21, 2000, the State of Georgia filed this in rem forfeiture action under OCGA § 16-12-32, seeking to condemn $1,166 owned by Weems and $944 owned by Ridley. The State claimed that the money was subject to forfeiture because Weems and Ridley had used it in connection with commercial gambling, in violation of OCGA § 16-12-22. The court later allowed the State to orally amend the complaint to include allegations that Weems and Ridley also violated OCGA § 16-12-21.

The court held a forfeiture hearing at which Officers Milliman and Warner of the City of Forest Park Police Department testified regarding the October 17, 2000 incident underlying the complaint. Milliman stated that at about 7:30 p.m. that evening he and Warner arrived at Ridley’s house to conduct a search, pursuant to a warrant, and noticed that the garage door to the house was open. Both officers saw that inside the garage a group of men were huddled in a semicircle, facing the wall. Some of the men were kneeling on the floor and some were bent over. Both Milliman and Warner testified that it was apparent that the men were rolling dice.

The officers approached the house, announcing that they were police with a search warrant, and all of the men in the garage began to flee. Ridley jumped the back fence and tried to run, but was apprehended by additional waiting police officers. With the exception of one man who eluded the police, the others stopped after the officers repeatedly told them to stop and get to the ground. After they were on the ground, the police handcuffed the men and patted them down. The pat-downs revealed that the men were carrying large amounts of money in their pockets; moreover, the money the men carried was crumpled, which is indicative of having participated in gambling. The men were arrested and charged with gambling. Then the officers seized the money from each person and put it into separate evidence bags.

Milliman testified that the $944 which was found on Ridley was seized because the bills were crumpled up, consistent with gambling activity, and because he had observed Ridley engaged in gambling. Milliman also recalled that the officers found one die under the refrigerator in the garage and an opened package of dice in Ridley’s car. Warner testified that an additional die was found on the garage floor. Furthermore, the officers located three firearms in the garage and a large amount of money in a trash can.

Another co-defendant testified that Weems was present at Ridley’s house the evening of the gambling.

1. In their first enumeration, Weems and Ridley claim that the trial court erred in ordering the forfeiture because the State did not prove that the seizure of the money was reported to the district attorney within ten days as required by OCGA § 16-12-32 (c). At the hearing, Weems and Ridley requested that their money be returned because of the State’s failure in this respect.

The facts of this case are jumbled because there is a tremendous discrepancy regarding the date on which the gambling, arrests and property seizures occurred. Neither party addresses the disparate dates or the conflicts created by these differing timetables. The State’s complaint alleged that the gambling and ensuing property seizures occurred on October 30, 2000. In his answer, defendant Weems admitted that the relevant date of his seizure and arrest was October 30, 2000. Similarly, in his answer, defendant Ridley also admitted that the date of the seizure and arrest was October 30, 2000. The complaint also alleged that seizure of the subject property was reported to the district attorney’s office within ten days of the seizure and that the complaint had been filed within thirty days of this seizure. The complaint did not allege a specific date on which the seizure was reported to the district attorney. Defendants Weems and Ridley generally denied this paragraph of the complaint in their answers.

Despite the representations in the pleadings, the only evidence presented at the forfeiture hearing was that the gambling incident and attendant seizures occurred on October 17, 2000. Both Officers Milliman and Warner testified that the relevant events, including the seizures, occurred on October 17, 2000. Accordingly, the trial court’s findings of fact state that the operative date is October 17, 2000; the court does not even mention October 30, 2000.

The State filed its verified complaint for forfeiture on November 21, 2000, more than 30 days after the October 17, 2000 gambling incident, arrests and seizures.

OCGA § 16-12-32 specifically provides for the seizure and disposition of property which is used in or derived from violation of the gambling statutes. OCGA § 16-12-32 (c) provides: “Any such property shall be seized by any peace officer who, within ten days after the seizure of such property, shall report the same to the district attorney of the superior court having jurisdiction in the county where the seizure was made.”

Next, OCGA § 16-12-32 (d) provides:

Within 30 days from the date he receives notice of such seizure, the district attorney of said judicial circuit shall cause to be filed in the superior court of the county in which the property was seized an action against the property so seized and any and all persons having an interest in or right affected by the seizure or sale of such property.

OCGA § 16-12-32 (c) triggers the responsibility of the district attorney under OCGA § 16-12-32 (d) to file the forfeiture action within 30 days. Subsection (c) allows the district attorney a small grace period before the clock on the 30 days begins. If more than 30 days have elapsed from the seizure until the filing of the complaint, the State is required to present evidence regarding the date the notice was given to the district attorney to justify the expansion of the 30-day period.

Weems and Ridley correctly argue that the State failed to present any evidence at the hearing regarding the date the district attorney received notice of the seizure. Because the State failed to present evidence of the notice date, there is no evidence in the record that the State complied with the 30-day period allowed for in OCGA § 16-12-32 (d) for filing the forfeiture complaint. In other words, in this case it was necessary that the State present evidence of the date on which the district attorney was given notice in order to have a framework from which to count the 30 days allowed for in OCGA § 16-12-32 (d).

In this regard, the gambling forfeiture statute differs from that for violations of the controlled substances statute, OCGA § 16-13-49. Although the drug forfeiture statute contains a similar provision for notice to the district attorney, OCGA § 16-13-49 (h) (1), the timetable for the filing of the complaint under the drug forfeiture statute is not linked to the reporting of the seizure to the district attorney. In other words, the provisions of OCGA § 16-13-49 (h) (1) and (2) operate independently of each other. Thus, in Green v. State of Ga., 250 Ga. App. 440, 441 (1) (550 SE2d 736) (2001), this court rejected the defendant’s argument that the State had violated the reporting time limit under subsection (h) (1) because Green had failed to produce supporting evidence of this claim. Nonetheless, under subsection (h) the reporting requirement was not critical to a determination of whether the complaint was timely filed.

Decided February 22, 2002.

Alfred L. King, Jr., for appellants.

Robert E. Keller, District Attorney, Rita B. Lewis, Assistant District Attorney, for appellee.

“A condemnation proceeding is a civil action wherein the State must meet its burden of proof by a preponderance of the evidence. [Cit.]” Bloodworth v. State of Ga., 185 Ga. App. 880 (366 SE2d 324) (1988). In this case, by failing to present any evidence of the date on which the seizure was reported, the State failed to carry its burden of proof under OCGA § 16-12-32.

2. Because of our conclusion in Division 1, we will not address the remaining enumerations.

Judgment reversed.

Blackburn, C. J., and Mikell, J., concur.

       Five people were named as defendants in the action, in addition to the property. Two of those defendants failed to appear at the hearing, and the court granted the forfeiture as to those individuals. After the hearing, the court found that the evidence against one of the defendants was insufficient; accordingly, it denied the petition as to that defendant.


author: Miller, Judge.

text:
    A01A2025.
    COLLINS v. THE STATE.
    (560 SE2d 767)
   Miller, Judge.

A jury found Martha L. Collins guilty of child molestation and aggravated child molestation. On appeal Collins contends that the evidence was insufficient to sustain her convictions and that she received ineffective assistance of counsel. We affirm.

1. Collins challenges the sufficiency of the evidence presented on the issue of whether she possessed the requisite intent to be convicted of child molestation or aggravated child molestation. More specifically, she argues that the evidence did not show that she acted “with the intent to arouse or satisfy the sexual desires of either the child or [herself].” We will uphold Collins’s conviction on appeal if the evidence, construed most favorably to support the verdict, was sufficient to enable a rational trier of fact to find Collins guilty beyond a reasonable doubt.

So construed, the evidence showed that Collins fondled the victim’s penis. The victim, who was six years old at the time of the incident, testified that Collins took him into her bedroom, touched his “peepee” while his clothes were off, put a nail in his “peepee,” and that it hurt. Collins’s daughter testified that she witnessed Collins bending down and touching the victim’s penis and that the victim screamed.

“Intent, which is a mental attitude, is commonly detectible only inferentially, and the law accommodates this. OCGA § 16-2-6.” Moreover,

[a] reviewing court will not disturb a factual determination by the jury on intent unless it is contrary to the evidence and clearly erroneous. The intent with which an act is done is peculiarly a question of fact for determination by the jury and even when a finding that the accused had the intent to commit the crime charged is supported by evidence which is exceedingly weak and unsatisfactory the verdict will not be set aside on that ground.

We can infer from the testimony of the victim and the witness that Collins committed those acts in order to satisfy her own sexual desires. The evidence was sufficient to sustain the convictions.

2. Collins argues that she received ineffective assistance because her trial counsel failed to move for a directed verdict at the close of the State’s evidence and failed to object to certain hearsay testimony. To establish ineffectiveness, Collins must prove (1) that counsel’s performance was deficient, and (2) that the deficient performance prejudiced her defense such that there is a reasonable probability that, but for the unprofessional conduct, the outcome of the trial would have been different.

Decided February 22, 2002.

J. David Burroughs, for appellant.

Lydia J. Sartain, District Attorney, Richard A. Vandever, Assistant District Attorney, for appellee.

(a) Collins’s contention that her trial counsel was ineffective for failing to move for a directed verdict is without merit. As explained in Division 1, the evidence was sufficient to support the verdict, which precludes a showing of prejudice.

(b) Collins alleges that her trial counsel was ineffective for failing to object to the hearsay testimony of one of the State’s witnesses. This ground for objection, however, was not raised on motion for new trial. “All allegations of ineffective assistance of counsel should be raised at the earliest practicable moment, and any allegation not raised is deemed waived.” Thus, the failure to assert these specific grounds in the court below precludes our review of them on appeal.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

       Under OCGA § 16-6-4 (a), a person commits child molestation “when he or she does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.”

       “A person commits the offense of aggravated child molestation when such person commits an offense of child molestation which act physically injures the child or involves an act of sodomy.” OCGA § 16-6-4 (c).

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Ney v. State, 227 Ga. App. 496, 497 (1) (489 SE2d 509) (1997).

       (Citation and punctuation omitted.) Ney, supra, 227 Ga. App. at 497 (1).

       (Citations and punctuation omitted.) Id. at 497-498 (1); Seidenfaden v. State, 249 Ga. App. 314, 319 (3) (547 SE2d 578) (2001).

       See Ney, supra, 227 Ga. App. at 498 (1).

        Strickland v. Washington, 466 U. S. 668, 686 (104 SC 2052, 80 LE2d 674) (1984); Beck v. State, 250 Ga. App. 654, 662 (8) (551 SE2d 68) (2001).

       See Hardegree v. State, 230 Ga. App. 111, 113 (4) (a) (495 SE2d 347) (1998); Ney, supra, 227 Ga. App. at 502 (4) (f).

       (Citation and punctuation omitted.) Render v. State, 240 Ga. App. 762 (a) (525 SE2d 134) (1999); see Rogers v. State, 247 Ga. App. 219, 231 (18) (a) (543 SE2d 81) (2000).

        Rogers, supra, 247 Ga. App. at 231 (18) (a).


author: Andrews, Presiding Judge.

text:
    A01A2227.
    PASSMORE et al. v. THE STATE.

    (561 SE2d 123)

       Originally issued as an unpublished opinion, this opinion is now published by order dated April 1, 2002.

   Andrews, Presiding Judge.

Ronnie Passmore and Ronnie Parker appeal from the judgment entered after a bench trial in which they were found guilty of hunting from a motor vehicle and hunting from a public road. They claim the evidence was insufficient to support the verdict. We disagree and affirm.

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)].

Decided December 19, 2001.

Whitmer & Law, George H. Law III, for appellants.

Donald E. Moore, Solicitor-General, for appellee.

Dolphus v. State, 218 Ga. App. 565, 566 (462 SE2d 453) (1995).

Viewed in this light, the evidence at trial was as follows. Pass-more and Parker were driving down the road when they saw a deer in a field. Passmore turned the truck around and drove back to the point where they had seen the deer. Parker got out and went into the field to shoot the deer. He shot the deer and saw it fall, but was unable to find the deer.

OCGA § 27-3-10 provides: “It shall be unlawful for any person to hunt, with or without dogs, any wildlife upon any public road in this state. It shall also be unlawful for any person while hunting to discharge any weapon from or across any public road in this state.”

OCGA § 27-3-13 provides: “It shall be unlawful to hunt any wildlife or feral hog from an electric, gas, or diesel boat, a steamboat, a sailboat, an airplane, a hydroplane, a hovercraft, or a motor vehicle.”

Passmore and Parker argue on appeal that the State presented no evidence that they were hunting upon a public road or from a motor vehicle. They claim that the evidence showed only that they drove by a field, saw a deer, and turned around and drove back to the field to shoot the deer. And, this, without more, does not prove any element of the statute. They cite to no authority in support of this argument, and we find none.

Under OCGA § 27-1-2 (39), “ ‘Hunting’ means pursuing, shooting, killing, taking, or capturing wildlife or feral hogs. This term also includes acts such as placing, setting, drawing, or using any device used to take wildlife or feral hogs, whether any such act results in taking or not, and includes every act of assistance to any person in taking or attempting to take such wildlife or feral hogs.”

At the time Passmore turned the truck around and went back to the field so that Parker could shoot the deer, they were “pursuing” the deer and they were doing this upon a public highway and from a motor vehicle. The evidence was sufficient to support the verdict. Jackson v. Virginia, supra.

Judgment affirmed.

Miller, J., concurs. Eldridge, J., concurs in the judgment only.


author: Barnes, Judge.

text:
    A01A2062.
    AYITEYFIO v. THE STATE.
    (561 SE2d 157)
   Barnes, Judge.

A jury convicted Robert Ayiteyfio of robbery and aggravated assault on a police officer. He appeals, contending among other things that the trial court erred in reseating four jurors after the prosecution claimed he struck them because of their race. Because the trial court erred in finding that the defendant’s reason for striking one of the jurors was pretextual, we reverse.

The voir dire was not recorded, but the objection and resulting hearing were. The prosecutor objected to nine of the defendant’s ten strikes, all of which were used to strike nonblack members of the venire. The defendant then provided race-neutral reasons for striking the jurors, which the State argued were pretextual. The trial court agreed that the reasons for striking five of the nine challenged jurors were pretextual and seated four of them on the jury that heard the charges against the defendant. We need only address Ayiteyfio’s challenge to one particular juror to decide this case. Mitchell v. State, 230 Ga. App. 149, 150 (495 SE2d 626) (1998).

We use a three-part test to determine whether a party’s discretionary jury strikes are improperly motivated by race. The burden is first on the party challenging a strike to make a prima facie showing of discrimination. The proponent of the strike must then produce a race-neutral and facially nondiscriminatory explanation for the strike. Finally, the challenging party has the ultimate burden of persuasion to prove that the proffered explanation is merely a pretext for discrimination. Jackson v. State, 265 Ga. 897, 898-899 (2) (463 SE2d 699) (1995).

In this case, the State showed that the defendant, who is black, struck nine white jurors ánd one Hispanic-Asian juror, thus establishing a prima facie case of discriminatory intent. O’Neal v. State, 226 Ga. App. 224-225 (1) (482 SE2d 478) (1997). Defense counsel then explained her reasons for striking each juror.

Defense counsel struck juror no. 11 because her cousin was a police officer and she had civil jury experience, both attributes defense counsel wanted to avoid in a juror. The court asked if counsel had a case saying that prior jury experience is a reason to strike someone, and counsel responded she did not, but that it was one criterion she used in conjunction with others. The State responded that these reasons were pretextual because a black juror with a cousin who was a police officer was seated, and that another black juror with prior jury service was also seated, although no black jurors who were both related to a police officer and had previous jury service were seated. The prosecutor further argued that Ayiteyfio showed racial animus by asking the black juror related to the police officer if he talked to his cousin about his work, but not asking juror no. 11 the same question.

After hearing argument on all the stricken jurors, the court ruled: “All right. The court will find discriminatory intent by showing similar situated members of another race were seated. That is in the police, both of them had cousins on the police department, so whatever number that one was. . . . Anyhow, the ones I have that I think are pretextual [are] 4, 8, 11, 18, 19, and 28.”

The trial court’s findings in determining whether a strike was racially motivated are entitled to great deference and will be affirmed unless clearly erroneous. McKenzie v. State, 227 Ga. App. 778, 779 (1) (490 SE2d 522) (1997). In making these findings, “the court may consider whether similarly-situated members of another race were seated on the jury, or whether the race-neutral explana.tion proffered by the strikes’ proponent is so implausible or fantastic that it renders the explanation pretextual.” (Citations and punctuation omitted.) Hinson v. State, 237 Ga. App. 366, 369 (3) (515 SE2d 203) (1999).

However, we must also keep in mind that the reasonable suspicion of a juror’s impartiality that prompts the exercise of a peremptory challenge need not rise to the level of justifying the removal of a venireman for cause. Turner v. State, 267 Ga. 149, 152 (2) (476 SE2d 252) (1996). A party “may strike from mistake, or from ignorance, or from idiosyncracy,” as long as the reasons do not relate to a juror’s race. Gamble v. State, 257 Ga. 325, 326 (2) (357 SE2d 792) (1987). Therefore, the trial court’s request for authority supporting Ayiteyfio’s use of peremptory strikes placed an unnecessary burden on him.

Decided February 22, 2002.

Stuckey & Manheimer, Stephanie S. Benfield, for appellant.

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

Further, “[w]here there are multiple reasons for striking a juror, white or black, it cannot be presumed that a reason applied to one juror, of one race, but not applied to another juror, of another race, is racially motivated.” (Emphasis omitted.) Lingo v. State, 263 Ga. 664, 667-668 (1) (c) (437 SE2d 463) (1993); Russell v. Parkford Mgmt. Co., 235 Ga. App. 81, 84-85 (2) (508 SE2d 454) (1998). The trial court’s stated reason for finding that Ayiteyfio struck juror no. 11 because of her race was that the defendant did not strike a black juror with a cousin who was a police officer. However, the black juror had not had previous jury experience and therefore was not similarly situated to the white juror whom the judge reseated. “We must also keep in mind that the [defendant’s] multiple rationales for the exercise of [his] strike were facially race-neutral and were supported by facts elicited during voir dire. . . . The [defendant’s] failure to ask questions does not evidence racial animus.” Turner v. State, supra, 267 Ga. at 152-153 (2); Hinson v. State, supra, 237 Ga. App. at 370-371.

Because the trial court clearly erred in finding that Ayiteyfio struck juror no. 11 because of her race, her reinstatement resulted in an illegally constituted jury. Accordingly, the defendant is entitled to a new trial. Chandler v. State, 266 Ga. 509, 510 (2) (467 SE2d 562) (1996).

Judgment reversed.

Smith, P. J., and Phipps, J., concur.

       Juror no. 19 was already seated, and juror no. 28 was not reached.


text:
    A01A2131.
    FLESCHE v. THE STATE.
    (561 SE2d 160)
   Miller, Judge.

Charles Andrew Flesche was convicted of misdemeanor shoplifting and of aggravated assault against the store employee who retrieved the stolen goods. His appeal focuses on his alleged incompetency to stand trial and on the failure of his trial counsel to pursue this issue and an insanity defense. As the evidence of incompetency and insanity appears only in the motion for new trial hearing, which evidence the court did not find credible, we hold that the court did not err in failing to pursue a competency hearing at trial or in denying a new trial on these grounds. Accordingly, we affirm.

Flesche concealed some store goods in his satchel and proceeded to leave the store without paying for them; A store employee chased him into the parking lot and, taking the satchel away, began to return to the store. Flesche threw a knife at the employee, striking him. Flesche returned to the store and demanded the return of his satchel. After removing the stolen goods, the store employees complied. When police found Flesche nearby, he was cooperative and admitted to the shoplifting, but claimed he threw a flashlight, not a knife.

Flesche pled guilty to the offenses of shoplifting and aggravated assault, but maintained his innocence when questioned by the judge. Accordingly, the judge refused to accept the plea. During the subsequent jury trial, Flesche testified and denied the shoplifting, stating that someone wrongfully stole the satchel from him. Following this testimony, the trial judge queried Flesche’s trial counsel as to Flesche’s competence, and trial counsel insisted that his client was lucid and competent and that he did not perceive any indication of incompetence. The jury found Flesche guilty of both offenses.

Flesche moved for a new trial, alleging that the court erred in not sua sponte conducting a competency hearing and that his counsel was ineffective in failing to pursue the competency hearing or an insanity defense. Following a hearing in which Flesche’s trial counsel and a psychologist testified, the court rejected the psychologist’s testimony regarding Flesche’s alleged mental impairments and denied the motion for new trial. Flesche appeals, claiming the trial court erred in (1) failing at trial to sua sponte order a competency hearing and (2) denying his motion for new trial.

1. “A trial court must conduct, sua sponte, a competency hearing when the information known to the trial court at the time of the trial or plea bargain is sufficient to raise a bona fide doubt regarding the defendant’s competence. [Cits.]” (Punctuation omitted.) White v. State, 202 Ga. App. 424, 425 (414 SE2d 328) (1992). The question is: “Did the trial judge receive information which, objectively considered, should reasonably have raised a doubt about defendant’s competency and alerted him to the possibility that the defendant could neither understand the proceedings or appreciate their significance, nor rationally aid his attorney in his defense?” (Citations and punctuation omitted.) Mitchell v. State, 207 Ga. App. 306, 308 (3) (427 SE2d 814) (1993). To answer this question, an appellate court focuses on three factors: (1) evidence of the defendant’s irrational behavior; (2) the defendant’s demeanor at trial; and (3) prior medical opinion regarding the defendant’s competence to stand trial. Johnson v. State, 209 Ga. App. 514, 516 (2) (433 SE2d 717) (1993); see Loggins v. State, 225 Ga. App. 713, 716 (5) (484 SE2d 758) (1997); White, supra, 202 Ga. App. at 425. The defendant bears the burden of proving incompetency by a preponderance of the evidence. Johnson, supra, 209 Ga. App. at 516 (2).

None of these three factors are shown here. Flesche points to no irrational behavior in the record, nor do we find any. To the contrary, throughout the trial Flesche displayed no outbursts or episodes of disorientation, and when testifying he coherently responded to his attorney’s questions. See Mullinax v. State, 211 Ga. App. 831, 833 (1) (440 SE2d 720) (1994). The fact that at times he may have been obstinate or uncooperative with his counsel or may have given different versions of the incident does not show irrational behavior. Loggins, supra, 225 Ga. App. at 716 (5) (hostility toward attorneys does not necessarily indicate irrationality); Singleton v. State, 194 Ga. App. 423, 424 (4) (390 SE2d 648) (1990) (lack of cooperation did not manifest incompetency); Jackson v. State, 180 Ga. App. 774, 776 (1) (350 SE2d 484) (1986) (giving three different versions of event does not show incompetency).

Nor is there evidence that Flesche’s demeanor exhibited incompetency. Contrary to Flesche’s arguments, his demeanor at the plea hearing was not the reason the judge refused to accept the plea, but rather his consistent protestations of innocence. His attorney also affirmed to the court at that hearing that Flesche was “certainly competent for trial.” During Flesche’s somewhat rambling but coherent testimony at trial, the judge did dismiss the jury briefly and instructed Flesche to simply answer his attorney’s questions. After Flesche completed his testimony with some vague answers, the court inquired outside the jury’s presence whether Flesche had been evaluated. Flesche’s trial counsel responded that there was no need to evaluate the defendant since he had always been lucid in his discussions with counsel. Counsel was satisfied based on his interaction with Flesche that he in fact was competent to stand trial. See Mullinax, supra, 211 Ga. App. at 833 (1) (court could consider attorney’s statement that defendant was competent). Based on these responses and the judge’s own observations, the judge proceeded with the trial. As a first-hand observer of Flesche’s demeanor, the court was well positioned to determine the need for a psychiatric evaluation. Lightsey v. State, 188 Ga. App. 801, 803 (1) (374 SE2d 335) (1988); see Mitchell, supra, 207 Ga. App. at 308 (3).

With regard to the third factor, there was certainly no prior medical opinion that Flesche was in any way incompetent or mentally impaired. The opinion offered by the psychologist at the motion for new trial hearing was of little import, for it was based on the psychologist’s evaluation of Flesche some two years after the trial and was rejected by the trial court, which had observed Flesche at trial and which had the opportunity to evaluate the psychologist’s demeanor at the hearing. A court need not accept an expert’s testimony on the defendant’s mental state, but may rely on its own observations and the basic presumptions permitted by law. Butler v. State, 225 Ga. App. 288, 291 (483 SE2d 385) (1997); see Huzzie v. State, 236 Ga. App. 192, 194 (2) (512 SE2d 5) (1999). Nor need the court accept the testimony of relatives on such. Mitchell, supra, 207 Ga. App. at 308 (3).

Decided February 22, 2002

Chandler & Britt, Deborah F. Weiss, for appellant.

Absent evidence in the record of defendant’s incompetency, a court need not order such a hearing, as mental competency is otherwise presumed. Strong v. State, 263 Ga. 587, 590 (5) (436 SE2d 213) (1993); Jackson, supra, 180 Ga. App. at 776 (1). Based on the evidence here, the court was authorized (1) to find that it was not required to hold a competency hearing and (2) to deny the motion for new trial on this basis. See Huzzie, supra, 236 Ga. App. at 194 (2).

2. The second ground for the motion for new trial was that Flesche’s trial counsel rendered ineffective assistance by failing to request the competency hearing or to pursue an insanity defense at trial. An ineffective assistance claim requires the defendant to prove that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Grier v. State, 273 Ga. 363, 365 (4) (541 SE2d 369) (2001). Here the court was authorized to and did find the evidence of mental impairment incredible. Moreover, at the motion for new trial hearing, Flesche’s trial counsel testified that during the trial he had no reason to believe Flesche was incompetent or mentally impaired, an opinion he had repeatedly stated to the court at trial. We evaluate counsel’s performance from counsel’s perspective at the time of trial. Grier, supra, 273 Ga. at 365 (4). Accordingly, we cannot say that the court clearly erred in finding that trial counsel’s choice not to pursue these matters was justified. See Slade v. State, 270 Ga. 305, 308 (2) (509 SE2d 618) (1998) (trial court’s findings on effective assistance of counsel are upheld unless clearly erroneous).

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

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


text:
    A01A2252.
    BARKSDALE v. DEKALB COUNTY et al.
    (561 SE2d 163)
   Miller, Judge.

Acting pro se, Richard Barksdale filed a complaint for declaratory judgment against DeKalb County, the DeKalb County Board of Commissioners, four members of the Board of Commissioners, and the DeKalb County Chief Executive Officer. The defendants filed a motion to dismiss and/or for summary judgment. The trial court granted the defendants’ motion, finding that there “is no circumstance under which Plaintiff could prevail in this matter,” and Barks-dale appeals. We affirm.

Barksdale’s complaint sought a judicial declaration that the expenditure of funds for attorney fees for lawsuits between the Board and the CEO is illegal. He complains of two lawsuits in particular and of future lawsuits. One of the lawsuits in question was conclusively decided by the Supreme Court of Georgia (see Bd. of Commrs. v. Levetan, 270 Ga. 544 (512 SE2d 627) (1999)), and the second was dismissed by the Board of Commissioners on January 4, 2001.

The Declaratory Judgment Act “provides a means by which a superior court simply declares the rights of the parties or expresses its opinion on a question of law, without ordering anything to be done.” (Citation and punctuation omitted.) Baker v. City of Marietta, 271 Ga. 210, 213 (1) (518 SE2d 879) (1999); see OCGA § 9-4-2. The purpose is to afford relief from insecurity and uncertainty with respect to rights, status, and other legal relations. OCGA § 9-4-1. If an action for declaratory judgment raises issues that are moot, however, “the Georgia statute is not applicable, and the action must be dismissed as decisively as would be any other action presenting the same non-justiciable issues.” (Citations and punctuation omitted.) Dean v. City of Jesup, 249 Ga. App. 623, 624 (1) (549 SE2d 466) (2001).

Barksdale concedes that this appeal involves an issue that is now moot but argues that this court should consider his appeal because the issue is capable of repetition. However, “[t]he object of the declaratory judgment is to permit determination of a controversy before obligations are repudiated or rights are violated.” (Citation and punctuation omitted.) Dean, supra, 249 Ga. App. at 624 (1). Therefore, as Barksdale complains of attorney fees already paid for lawsuits that have been resolved, there is no justiciable controversy, and a declaratory judgment action cannot lie for a probable future contingency. See Baker, supra, 271 Ga. at 214-215 (1).

Decided February 22, 2002.

Richard D. Barksdale, pro se.

Jeffrey L. Mann, Charles G. Hicks, for appellees.

Judgment affirmed.

Andrews, P. J, and Eldridge, J., concur.


text:
    A01A2258.
    WILLIAMS v. THE STATE.
    (561 SE2d 149)
   Andrews, Presiding Judge.

Christopher Williams, convicted of armed robbery, appeals from the trial court’s denial of his motion for new trial.

1. Williams’ second enumeration challenges the sufficiency of the evidence and is addressed first.

When reviewing a conviction, this Court must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979). Any inconsistencies in the victims’ [and witnesses’] testimony ... go to the weight and credibility of the witnesses’ testimony; such issues are for the jury to weigh. Sherman v. State, 225 Ga. App. 869 (485 SE2d 557) (1997); Jones v. State, 220 Ga. App. 236 (469 SE2d 379) (1996). “This Court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses.” (Citation and punctuation omitted.) Kapua v. State, 228 Ga. App. 193, 195 (491 SE2d 387) (1997).

Taylor v. State, 232 Ga. App. 383, 384-385 (501 SE2d 875) (1998).

Viewed with all inferences in favor of the verdict, the evidence was that, around 9:30 to 10:00 p.m. on September 10, 1999, Ali Noorani, the owner of the S & N Liquor Store on Lawrenceville Highway, was restocking his store since business was slow when he saw a man, later identified as Williams, enter. Williams, wearing blue jeans and a black t-shirt with a Church’s Chicken logo on it, asked for some lottery slips and filled them out, but then left without playing the lottery. Shortly thereafter, a second man, later identified as Calvin Benton, entered wearing a white t-shirt, baggy shorts with his green plaid underwear showing, and a mask partially covering his head. Benton went to Ramos, Noorani’s stock clerk, and brandished a gun. Noorani opened the cash drawer, and Benton reached in and grabbed money, dropping some on the floor. During this time, Noorani realized that Williams had reentered the store and come behind the counter, a restricted area. Both men were trying to get money from the first cash drawer and a second one which Noorani opened upon seeing Williams come back into the store. A customer arrived outside, and the two men ran in different directions, taking over $500. The entire incident was captured on the store’s videocamera.

Around 10:30 p.m., Cain was in her nearby residence when she heard Benton knock at her door. He was wearing very baggy shorts with green plaid underwear and a white t-shirt and wanted to use her phone. Cain dialed the number which Benton provided her and asked for Nisha, as he had directed. She gave the phone to Benton who spoke to Nisha. Because Benton could not give accurate directions to Cain’s home, Cain gave Nisha directions. After Benton left, Cain heard a police helicopter circling and called a neighbor who told her about the robbery. Cain gave a police officer her information, including the phone number she had called and the name “Nisha.” Later that evening, Officer Gaddis found a white t-shirt in Cain’s neighbor’s yard.

Benisha Price had lived next door to Williams’ child’s mother and had also known Benton several years. She recalled occasions when both Benton and Williams were at her apartment at the same time. On September 10, Price was visited by Ellis around 10:30 p.m. Ellis was driving her mother’s car, a purple Dodge Neon. Price was called by Benton and asked to come and get him. She and Ellis left in the purple Neon and went to Lawrenceville Highway. Although they did not find Benton, Price saw Williams at a gas station near the S & N and they stopped and picked him up.

Numerous DeKalb police officers responded to the robbery report, including K-9 Officer Davis and his dog. Although the dog picked up a track, he lost it. Officer Davis parked across from S & N to do paperwork after becoming aware that someone in a Neon was coming to pick up one of the perpetrators. Officer Davis saw a shadow across Lawrenceville Highway, and a man came from behind some shrubbery and looked up and down the highway and then went back behind a fence. The man was wearing jeans and a t-shirt with writing from a chicken restaurant on it. Within a few minutes, a purple Dodge Neon pulled up, stopped, and the man came out, looked both ways, and ran over to the Neon. Officer Davis stopped the Neon and found Ellis driving, Price in the front passenger seat, and Williams in the back seat. Price told officers that she had been called by Williams to come pick him up, although at trial she testified Benton called her.

Benton, wearing no shirt, was later arrested leaving a taxi off of 1-285 and Lawrenceville Highway. Benton had $546 in cash and Williams had $19, including $7.50 in quarters, when taken into custody.

Williams was taken to the police station, advised of his Miranda rights, and gave three varying statements. Initially, he said a friend dropped him off at Lawrenceville Highway and North Druid Hills Road; he walked to the S & N and bought a drink. He then left to use a pay phone outside. Upon returning inside, he found people running all around, and he picked up some money that had been dropped. Then, Williams acknowledged that he had seen a gunman in the store and had picked up some money. Finally, Williams said he had met Benton across the street from the store and agreed to “watch his back” while Benton robbed the store. He also admitted he had fled after picking up some money.

At trial, Williams testified that, after getting off work at Church’s Chicken, he and a friend drove around a while drinking beer and he had been dropped off, walked to the store, bought a drink, used the pay phone to arrange a ride, and went back inside the store. He saw the robbery in progress, ducked behind the counter, and ran. He then got in the car with Ellis and Price. He denied being involved in the robbery or picking up any money.

The question of which version of events to believe was properly left to the jury. Upon review, we find the evidence legally sufficient to support Williams’ conviction of armed robbery as a party to the crime. Jackson v. Virginia, supra; see Igidi v. State, 251 Ga. App. 581, 586 (4) (554 SE2d 773) (2001).

2. Williams contends, in his first enumeration, that the trial court erred in denying his motion to suppress his statements because the stop of the Neon was unlawful under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).

Although Williams filed a motion for a Jackson v. Denno hearing below, as well as a motion to suppress his statements, he does not challenge the voluntariness of his statements here, only the legality of the stop. Compare Lopez v. State, 252 Ga. App. 681, 686 (2) (557 SE2d 1) (2001).

In determining the validity of a stop or search found valid by the trial court after a suppression hearing, we may also consider the evidence introduced at trial. Johnson v. State, 230 Ga. App. 535, 536 (1) (496 SE2d 785) (1998). “ ‘ “[A] trial court’s order on a motion to suppress will not be disturbed if there is any evidence to support it, and the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous.” (Cit.)’ [Cit.]” Id.

The majority of Williams’ argument here is addressed to Officer Davis’ credibility and hinges on this Court’s reevaluation of it despite the trial court’s finding Davis’ testimony credible. This we cannot do because the finding by the trial court is not clearly erroneous. Compare State v. Alexander, 245 Ga. App. 666 (538 SE2d 550) (2000) (crediting testimony at odds with objective facts shown on videotape was clearly erroneous), with Cunningham v. State, 231 Ga. App. 420 (1) (498 SE2d 590) (1998) (good faith reliance by officer on information later found incorrect sufficient for articulable suspicion).

The facts set out in Division 1 evidence a rapidly evolving investigation, involving numerous officers, of an armed robbery involving two males, one wearing a shirt with a chicken logo on it. Whether Officer Davis received the information regarding the Neon from a sergeant while running his dog after a scent or overheard it in a radio dispatch, or both, such information gave him an articulable suspicion to investigate a Neon he saw stop on a five-lane road to pick up a man acting furtively in the area of the robbery and wearing a shirt matching the description of one of the robbers. Overand v. State, 240 Ga. App. 682, 683 (1) (523 SE2d 610) (1999); Cunningham v. State, supra; Buffington v. State, 228 Ga. App. 810, 811 (492 SE2d 762) (1997) (articulable suspicion may be based on collective knowledge of law enforcement officials).

There was no error in denial of the motion to suppress and subsequent denial of the motion for new trial based upon it. Hayes v. State, 249 Ga. App. 857, 864 (5) (549 SE2d 813) (2001) (stop of car in area of recent shooting upheld). Neither McSwain v. State, 240 Ga. App. 60 (522 SE2d 553) (1999), nor State v. Burns, 238 Ga. App. 683 (520 SE2d 39) (1999), relied upon by Williams, persuades us otherwise. In McSwain, the only information the officer received was of “possible” drug activity, and in Burns, the lookout involved a purse snatching that had occurred three days prior to the stop.

3. Williams, through appellate counsel, contends that his trial counsel rendered ineffective assistance by failing to advise him of his right to remain silent; failing to call Michael Cooper as a witness; failing to establish the source of the description of the Neon; and failing to request a charge on theft by taking as a lesser included offense.

“In order to prevail on a claim of ineffective assistance of counsel [Williams] must show that his counsel’s performance was deficient and that the deficient performance was prejudicial to his defense. Smith v. Francis, 253 Ga. 782, 783 (325 SE2d 362) (1985) (citing Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984)). To meet the first prong of this test, [Williams] must overcome the strong presumption that counsel’s performance fell within a wide range of reasonable professional conduct and that counsel’s decisions were made in the exercise of reasonable professional judgment. The reasonableness of counsel’s conduct is examined from counsel’s perspective at the time of trial and under the circumstances of the case. The second prong requires [Williams] to show there is a reasonable probability that, absent counsel’s unprofessional errors, the result of the trial would have been different.” (Citations and punctuation omitted.) Brown v. State, 268 Ga. 354, 357 (4) (490 SE2d 75) (1997).

Reynolds v. State, 231 Ga. App. 33, 37 (6) (497 SE2d 580) (1998).

(a) Regarding knowledge of his right to refuse to testify, trial counsel testified that she did discuss this with Williams and that she was concerned about him testifying because he could open the issue of his character. She further testified that she and he made the decision regarding his testifying together. The trial court’s conclusions regarding credibility in this instance and his decision on this issue were not clearly erroneous. Brown v. State, 225 Ga. App. 49, 52 (1) (483 SE2d 318) (1997).

(b) On May 28, 2000, prior to trial in September, Cooper wrote Williams a letter in which he said Benton told him that “he [Benton] had the gun and he took the money. . . .” Williams contends that trial counsel’s failure to find and call Cooper as a witness evidenced ineffective assistance.

Trial counsel had located a Michael Cooper, but was told by Williams he was not the correct one. Additionally, as trial counsel explained, she correctly concluded that the letter “never actually said that Mr. Williams didn’t do it.” Also, this information was cumulative of the videotape which showed Benton with the gun taking the money, and Williams has failed to demonstrate a reasonable probability that the result of the trial would have been different if Cooper testified.

(c) Williams also contends that trial counsel should have proven at the motion to suppress hearing that the only place the purple Neon information could have originated was from Cain; that Cain did not have that information; and, therefore, Officer Davis lied. This issue has been mooted by our conclusion in Division 2.

Decided February 22, 2002

Maria Murcier-Ashley, for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, Daniel M. Hirsh, Assistant District Attorneys, for appellee.

Further, at the motion for new trial hearing, the burden was Williams’ to demonstrate that Cain did not provide the information regarding the Neon. Castell v. State, 252 Ga. 418, 419 (1) (314 SE2d 210) (1984); Baker v. State, 251 Ga. App. 377, 379 (2) (554 SE2d 324) (2001).

(d) Finally, Williams contends trial counsel failed in not requesting a jury charge on theft by taking as a lesser included offense. As trial counsel testified, however, Williams denied any participation in the incident and any such charge would have been inapplicable. Worthy v. State, 237 Ga. App. 565, 567 (2) (515 SE2d 869) (1999). Trial counsel’s decision was a matter of trial strategy and is not an incident of ineffective assistance. McKinney v. State, 251 Ga. App. 896, 900 (2) (555 SE2d 468) (2001).

4. Williams’ argument in his fourth enumeration that the trial court erred in failing to give the jury charge on theft by taking fails. Moore v. State, 246 Ga. App. 163, 168 (8) (b) (539 SE2d 851) (2000).

Judgment affirmed.

Eldridge and Miller, JJ, concur.

       Pursuant to Benton’s motion, his trial was severed from Williams’.

       Denial of the motion to suppress was also a ground for Williams’ motion for new trial and was reconsidered by the trial court at that time.

       Although Williams argues here that the detention after the stop was also illegal, that ground was not included in his motion below and will not be considered here for the first time.

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


text:
    A01A2298.
    KMART CORPORATION et al. v. MERRIWEATHER et al.
    (561 SE2d 181)
   Miller, Judge.

The appellants failed to include in the appellate record a portion of the evidence presented to the jury. Their enumerations of error all focus on the lack of evidence to sustain the jury verdict against them. Since a consideration of these enumerations requires a review of all evidence presented to the jury, we must affirm.

Accusing Robert Merriweather of shoplifting, Kmart Corporation and Willie Turner detained Robert and turned him over to police. Robert was eventually acquitted of the shoplifting charge. He and his wife then sued Kmart and Turner for various torts arising out of the incident, resulting in an aggregate jury verdict of $246,985.46 in favor of the Merriweathers on six of the counts. Kmart and Turner appeal, arguing that the evidence did not sustain a verdict on any of the torts and thus that the trial court should have granted them judgment as a matter of law on their motions for a directed verdict and for judgment notwithstanding the verdict.

Kmart and Turner correctly cite the standard of review for the denial of a motion for directed verdict. They are required to show from the record that there was no conflict in the evidence as to any material issue and that the evidence introduced, with all reasonable deductions therefrom as construed in favor of the Merriweathers, demanded a defense verdict. Our review necessarily would require a consideration of all the evidence presented to the jury.

Here Kmart and Turner failed to include in the record two key portions of the Merriweathers’ evidence. The Merriweathers read to the jury the testimony of Jeantoria Howard from the criminal shoplifting trial. The court reporter at the civil trial did not report that testimony, and it is not found in the appellate record. The Mer-riweathers then read in other portions of the criminal trial transcript, none of which — as per the agreement of the parties — was taken down by the civil reporter. Nor is this testimony found elsewhere in the record. Thus, the appellate record contains only a portion of the evidence presented to the jury.

The burden is on the appellant to show error by the record. “Where a determination of the merits of an enumeration of error requires a review of the entire transcript, and only a portion of the evidence at trial was forwarded on appeal, this court must affirm.” “In such case, we must assume the judgment below was correct and affirm.”

Examples of affirmances resulting from such deficient records include (1) not fully reporting a portion of the evidentiary hearing that served as the basis for the court’s ruling, which ruling was challenged by the appellant as not supported by the evidence, (2) leaving out portions of the evidentiary transcript in an appeal challenging the sufficiency of the evidence, (3) transmitting only one witness’s testimony to the appellate court in an appeal challenging as unsupported by the evidence the giving of a jury charge, and (4) failing to include in the appellate record physical evidence (or a photograph thereof) that may have made completely incredible the only testimony that could have served as the basis for the denied jury charge. If Kmart and Turner desired to challenge the sufficiency of the evidence, they should have taken steps to ensure that all evidence was included in the appellate record.

Decided February 22, 2002.

Alston & Bird, James C. Grant, Nowell D. Berreth, Jeffrey J. Swart, for appellants.

Weinstock & Scavo, Michael Weinstock, John B. Levy, for appel-lees.

Since only a portion of the trial evidence was transmitted to this Court, we cannot consider the enumerations, all of which challenge the sufficiency of the evidence. We must affirm.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

       See OCGA § 9-11-50 (a); Willis v. Love, 232 Ga. App. 543, 544 (1) (502 SE2d 487) (1998).

       See Willis Mining v. Noggle, 235 Ga. App. 747, 751 (4) (509 SE2d 731) (1998).

        Gary v. Weiner, 233 Ga. App. 284, 285 (2) (503 SE2d 898) (1998).

       (Citation omitted.) Prater v. Bertrand, 197 Ga. App. 169, 170 (3) (397 SE2d 562) (1990); see Carson v. Carson, 226 Ga. App. 659, 660 (2) (487 SE2d 447) (1997).

       (Citations omitted.) Spivey v. State, 237 Ga. App. 626, 627 (1) (516 SE2d 332) (1999).

        Goodman v. Lake Buckhorn Estates &c., 224 Ga. App. 765, 767 (3) (481 SE2d 882) (1997).

        Campbell v. Crumpton, 173 Ga. App. 488, 489 (2) (326 SE2d 845) (1985); see Turner v. Watson, 139 Ga. App. 648, 649 (229 SE2d 126) (1976).

        Prater, supra, 197 Ga. App. at 170 (3).

        Law v. State, 121 Ga. App. 106, 108 (2) (173 SE2d 98) (1970).

       See Bluain v. State, 242 Ga. App. 125, 131 (4) (529 SE2d 155) (2000).


author: Smith, Presiding Judge.

text:
    A01A2340.
    WALKER v. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA.
    (561 SE2d 178)
   Smith, Presiding Judge.

Melvin E. Walker, Jr., Ph.D., brought this action against his employer, the Board of Regents of the University System of Georgia d/b/a Fort Valley State University. He appeals from the trial court’s grant of summary judgment to Fort Valley and the denial of his cross-motion for summary judgment. Walker contends that Fort Valley breached a written or oral employment contract when he was not reappointed to the position as Director of the Agricultural Research Station and was offered only a nine-month academic year contract instead of a twelve-month fiscal year contract as in the past. Because we find the trial court correctly concluded that the university breached no contract, we affirm the judgment.

Walker’s employment at the university’s College of Agriculture began in 1973. From 1973 to 1998, he was employed under yearly 12-month fiscal year contracts. Under those contracts, Walker was classified as having both teaching and administrative or research responsibilities. He also served for a time as Dean of the College of Agriculture, as Director of the Agricultural Research Station, and as Acting President of the college.

In 1994, a female professor in the College of Agriculture informed the university’s president, Dr. Oscar Prater, that she and other faculty members were being treated unfairly and sexually harassed by Walker. She subsequently filed suit in federal court against the Board of Regents, the university, and Walker, alleging gender discrimination and sexual harassment. Walker was dismissed from the suit as an improper party, and the suit was later settled, with the board paying the plaintiff $50,000. Dr. Stephen Portch, the Chancellor of the Board of Regents, notified President Prater of the settlement, instructing him that under other terms of the settlement, Walker was “to have no supervisory authority over [the plaintiff] for the duration of her employment at the institution, and that he [was] to refrain from making disparaging remarks about” her. Chancellor Portch also requested that President Prater “investigate the facts of this case thoroughly and take appropriate management actions, including those that insure that there is no further liability to the institution from actions or comments by Dr. Walker,” and that he report to him the actions taken.

President Prater forwarded Chancellor Portch’s letter to Dr. Josephine Davis, the college’s Vice President for Academic Affairs, for investigation. With President Prater’s approval, Dr. Davis then informed Walker that he was being removed from his positions as Dean and as Director of the Research Station. Instead of a twelvemonth fiscal year contract, he was offered a nine-month academic year contract. Although the pay rate was the same, because he was paid for only nine months his total salary was $78,324, whereas in the previous year his contract called for a salary of $100,811.

Walker tried several times to have the Board of Regents review this action, but the board refused. Walker eventually signed the contract presented to him, reserving any appeal rights. After giving the board ante litem notice, Walker filed this action.

1. Walker contends the trial court erred in granting summary judgment to the defendants because genuine issues of material fact exist as to whether the board breached its own policies and bylaws, which were incorporated into the employment contract. One such policy is Section 803.1402 (c) of the board’s policy manual, which states:

When a fiscal year administrative employee returns to an academic appointment as a faculty member, the salary shall be determined on the same basis as other faculty members with the similar rank and experience within the department to which he/she returns or in other similar positions within the institution.

Each year’s contract has provided that it is made expressly subject to applicable law “and to the statutes and regulations of this institution and to the bylaws and policies of the Board of Regents.”

Although Walker argues that no other members of his department have nine-month contracts, we agree with the trial court that the defendants did not breach Walker’s employment contract by offering him a nine-month contract, because the board was not required to base his salary on that of other faculty members within his department, but could, and did, base it on similar positions within the institution. Moreover, the institutional policy regarding employment of tenured faculty provides that such faculty must be provided “continued employment on a 100 percent workload basis for two out of every three consecutive academic semesters until retirement, dismissal for cause, or release because of financial exigency or program modification as determined by the board.” The university’s faculty handbook states that tenured faculty “will automatically be issued a contract, respectively, for the ensuing academic or fiscal year. However, fiscal faculty should remain cognizant of the fact that tenure at the University is only guaranteed for a nine-month period only [sic].” Walker was offered a contract that complied with these provisions. He has been guaranteed continued employment for two out of three semesters. Walker has presented no evidence of entitlement to any more, and he has not shown any breach by the defendants of their own written policies or his employment contract.

2. Walker also argues that an implied contract existed guaranteeing him continued employment under a 12-month contract, based upon the university’s “repeated course of conduct in assigning fiscal year contracts to members of the agricultural science department.” He argues that he had always had fiscal year contracts and it was his understanding

that I would continue to receive one. ... It was my understanding at the time that I was appointed that I would receive fiscal year contracts because those were the kinds of contracts that were offered in Agricultural Sciences, and there were no others. So there was no reason for me to assume that I would get anything different from that.

Citing Gray v. Bd. of Regents &c. of Ga., 150 F3d 1347 (11th Cir. 1998), Walker argues that under Perry v. Sindermann, 408 U. S. 593 (92 SC 2694, 33 LE2d 570) (1972), “ ‘explicit contractual provisions may be supplemented by other agreements implied from the prom-isor’s words and conduct in the light of the surrounding circumstances,’ ” whereby the meaning of the promisor’s words and acts is determined using past actions and customs. Gray, supra at 1352; see also Perry, supra at 602.

Decided February 22, 2002

It is clear, however, that Walker’s duties have changed, since he now has no administrative or research duties. “It is a recognized rule fthat where something is used in comparison with another to illustrate a condition or point that it is necessary that such conditions be substantially similar. [Cit.]” Doster v. Central of Ga. R. Co., 177 Ga. App. 393, 398 (5) (339 SE2d 619) (1985) (physical precedent only). The university’s past offers of 12-month contracts were therefore not based upon similar “surrounding circumstances,” and they cannot serve as a basis for implying an entitlement to continued 12-month contracts.

3. As best we can understand Walker’s argument, he maintains that he has a property interest in his former position as Director of the Agricultural Research Station, which is “classified,” and in his salary being based upon a comparison of other faculty members with similar rank and experience within his department, because no other university positions are similar. The board takes the position that the position of Director of the Agricultural Research Station is not a “classified” position. The record does not include documents supporting either position, and we therefore cannot agree with either party. We note, however, that Walker, as appellant, bears the burden of showing error affirmatively by the record. He cannot discharge this responsibility with statements in his brief. Stagl v. Assurance Co. of America, 245 Ga. App. 8, 11 (3) (539 SE2d 173) (2000). But even if Walker’s assertion is correct, he did not pursue or exhaust the administrative remedies necessary to such a claim. He was required, under the policies of the board, to request a hearing within 15 days of the final decision removing him from his position. The letter informing Walker of the decision is dated April 30,1998. Walker did not request a hearing until June 22, 1998, and even that challenged only his receipt of a nine-month rather than a twelve-month contract, not his removal from the so-called “classified” position. This court cannot preempt administrative remedies except as a matter of equity, to prevent irreparable injury. We will not interfere unless administrative remedies have been exhausted. Bacon v. Brewer, 196 Ga. App. 130, 131 (395 SE2d 383) (1990).

Judgment affirmed.

Barnes and Phipps, JJ, concur.

Ruffin & Dell, Charles L. Ruffin, Joel V. Sherlock, for appellant.

Carlock, Copeland, Sender & Stair, Adam L. Appel, Kimberly N Royal, for appellee.

       Although Doster is physical precedent only, it has been cited extensively. See, e.g., Dept. of Transp. v. Brown, 218 Ga. App. 178, 183 (4) (460 SE2d 812) (1995); Tahamtan v. Tahamtan, 204 Ga. App. 680, 682 (4) (420 SE2d 363) (1992).


text:
    A01A2342.
    BAKER v. THE STATE.
    (561 SE2d 185)
   Miller, Judge.

Evidence showed that Stanley Baker beat a male victim, forced him at gunpoint to give his car keys to an accomplice, and coerced him and a female victim to leave with Baker and two cohorts in that vehicle. The questions on appeal are (1) whether this evidence sufficed to sustain robbery and kidnapping convictions, and (2) whether the court erred in refusing to allow Baker to present detailed evidence that Baker had participated in a legal investigation that caused the loss of the female victim’s father’s job. Discerning no error, we affirm.

The evidence showed that Baker, upset at his girlfriend’s infidelity, went to look for her and eventually found her at a local hotel. Baker kicked in the hotel door of a room where she and a male were staying. Pointing a gun at the male who was on the floor, Baker kicked him repeatedly in the face and throat. A cohort accompanying Baker demanded the male’s car keys, which he gave to the cohort while Baker continued to point the gun at him. The cohort retrieved the vehicle, and Baker forced his girlfriend and the male into the car (using his gun and physical strength). Hotel security officers witnessed the abduction of the girlfriend and Baker’s possession of a gun. Baker threw the gun out the car window when police thereafter stopped the vehicle and rescued the victims. The gun was never found. A jury found Baker guilty of kidnapping (two counts), robbery, and assault and battery.

1. Citing insufficiency of the evidence, Baker challenges his robbery and kidnapping convictions. On appeal from a criminal conviction, we construe the evidence in favor of the verdict in assessing whether a rational trier of fact could have found the defendant guilty of the charged crimes beyond a reasonable doubt.

OCGA § 16-8-40 defines robbery as when a person, with intent to commit theft, takes property of another from the person or immediate presence of another by use of force, by intimidation, by use of threat or coercion, or by placing that person in fear of immediate serious bodily injury. Here the evidence showed that by use of the gun, Baker coerced the male victim into giving the car keys to Baker’s cohort and that Baker and the cohort then used the vehicle for their own purposes. This evidence sufficed to sustain the robbery conviction.

OCGA § 16-5-40 defines kidnapping as when a person abducts or steals away any person without lawful authority and holds such person against his will. Here the evidence showed that by use of the gun and physical force, Baker coerced his girlfriend and the male victim to leave the hotel room and to travel away with Baker in the car. This evidence sufficed to sustain the two kidnapping convictions.

Baker contends that the decision of the jury to find him guilty of robbery rather than armed robbery (and of assault and battery rather than aggravated assault) meant that the jury must have believed his evidence that there was no gun. Thus, he contends, the jury could not also find him guilty of kidnapping, which count relied on the gun as the means of force. This argument fails, as it is nothing more than a remake of the “inconsistent verdict rule,” which rule the Supreme Court of Georgia abolished some 16 years ago. Moreover, Baker kicked the male victim viciously and dragged his girlfriend to the car, thus supplying the force, intimidation, or threat of serious bodily injury even if no gun were present.

2. Baker argues that the court erred in excluding his proffered evidence that he had offended his girlfriend’s father by participating in a legal investigation that caused the father to lose his job. Baker wanted to show that the father’s anger motivated the girlfriend to lie about the kidnapping incident as a matter of revenge. When the State announced it was not calling the father as a witness, the court excluded the evidence on the ground that its connection to the girlfriend was tenuous and therefore was irrelevant and prejudicial. During the girlfriend’s testimony, she nevertheless briefly testified that Baker and her father were at odds and that Baker had had her father fired. Baker’s counsel did not ask her about any ill feelings toward Baker or about any motivation she would have to lie.

OCGA § 24-9-68 provides that a party may prove the state of a witness’s feelings toward that party. Nevertheless, the trial court has broad discretion to exclude evidence on grounds of relevancy, which decision we will not disturb absent manifest abuse. Thus, if the proffered evidence is too tenuous to prove the desired matter and is possibly more prejudicial than probative, the trial court does not abuse its discretion in excluding the evidence.

Decided February 22, 2002.

Elaine T. McGruder, for appellant.

Paul L. Howard, Jr., District Attorney, Amira S. AbuBakr, Assistant District Attorney, for appellee.

Here Baker failed to even ask the girlfriend what her feelings were toward Baker, let alone whether those feelings were affected by his actions that resulted in her father’s loss of his job. We find no abuse of discretion where Baker had an opportunity to develop this testimony and failed to do so. In light of the brief testimony coming in that Baker caused the job loss, and in light of the tenuous link between this circumstance and the girlfriend’s possible but unexplored bias against Baker, we cannot say that the trial court manifestly abused its discretion in excluding the details regarding Baker’s involvement in the legal investigation leading to that job loss.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

       See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Kelley v. State, 233 Ga. App. 244 (503 SE2d 881) (1998).

       See Leeks v. State, 226 Ga. App. 227 (1) (483 SE2d 691) (1997); cf. OCGA § 16-2-20 (parties to a crime).

       See Lockett v. State, 217 Ga. App. 328, 331 (4) (457 SE2d 579) (1995).

        Milam v. State, 255 Ga. 560, 562 (2) (341 SE2d 216) (1986); see Metts v. State, 270 Ga. 481, 483 (2) (511 SE2d 508) (1999).

       See Hayes v. State, 211 Ga. App. 801, 804 (2) (440 SE2d 539) (1994).

        Houston v. State, 242 Ga. App. 114, 116 (2) (527 SE2d 619) (2000).

       See Knapp v. State, 229 Ga. App. 175, 177 (2) (493 SE2d 583) (1997); cf. Shaw v. State, 241 Ga. 308, 311 (7) (245 SE2d 262) (1978).

       See Johnson v. State, 270 Ga. 234, 235 (2) (507 SE2d 737) (1998); see also Farley v. State, 225 Ga. App. 687, 693 (484 SE2d 711) (1997) (physical precedent only).