text:
    A00A1684.
    HARRISON v. DEMING, PARKER, HOFFMAN, GREEN & CAMPBELL, P.C. et al.
    (541 SE2d 407)
   Smith, Presiding Judge.

This appeal requires us to determine whether the meaning of OCGA § 34-9-100 (c) was so “well settled, clear, and widely recognized” within the meaning of Jones, Day, Reavis & Pogue v. American Envirecycle, 217 Ga. App. 80, 83 (2) (456 SE2d 264) (1995) and Littleton v. Stone, 231 Ga. App. 150, 151-152 (1) (497 SE2d 684) (1998), that a failure to comply with the statute will support an action for legal malpractice. We find that the trial court correctly concluded it was not, and we affirm the judgment below.

Brenda Harrison brought this legal malpractice action against the law firm Deming, Parker, Hoffman, Green & Campbell, PC. (“Deming, Parker”) and two of its attorneys, based upon their representation of her in a workers’ compensation case. Harrison alleged that as a result of Deming, Parker’s professional negligence in failing to pursue her workers’ compensation case in a timely manner, she has lost her right to a hearing and consequently has essentially lost her claim.

Deming, Parker answered and moved for summary judgment on the ground that the legal issues leading to the dismissal of Harrison’s workers’ compensation case involved the interpretation of a statute that was not clear or well settled and therefore could not be the basis for allegations of professional negligence. The trial court agreed and granted the motion. Harrison appeals, contending that the statute was clear and unambiguous and that Deming, Parker should not be insulated from liability.

OCGA § 34-9-100 (c) provides: “On or after July 1, 1985, any application for hearing filed with the board pursuant to this Code section for which no hearing is conducted for a period of five years shall automatically stand dismissed.” The record shows that Harrison filed an initial claim/request for hearing pro se, and it was received by the State Board of Workers’ Compensation on February 7, 1991. The employer controverted the claim. Harrison retained an attorney, and he withdrew the request for hearing on March 8, 1991, apparently to allow him to prepare “a complete presentation of the evidence.” The case was removed from the active trial calendar on March 14, 1991. After counsel later requested that another hearing be scheduled, the case was again removed from the trial calendar in October 1991, apparently because of counsel’s withdrawal.

In December 1992, Harrison retained Deming, Parker to represent her. On February 10, 1993, the firm filed a new form requesting a hearing, following which a hearing was scheduled and postponed seven times by agreement of counsel. On March 29, 1997, the firm withdrew from representing Harrison. Her file was returned to her on April 4, 1997.

On April 23, 1997, the employer filed a motion to dismiss the claim. Before Harrison could respond, on April 28, 1997, the claim was dismissed by the administrative law judge on the ground that more than five years had elapsed without a hearing being conducted since the original request for hearing was filed on February 7, 1991. Harrison objected, and the ALJ vacated the April 28, 1997 award, read and considered the motion and the response, and reentered an award dismissing the claim on May 14, 1997. This award was upheld by the appellate division of the board, and Harrison appealed to the Superior Court of Fulton County. The Fulton County Superior Court entered an order reversing the board insofar as the board dismissed Harrison’s underlying claim, but affirming the dismissal of the request for hearing.

The superior court found that this court had distinguished between a “claim” and a “hearing” in the workers’ compensation context in Ogden v. Clark Thread Co., 93 Ga. App. 227, 228 (91 SE2d 191) (1956), holding that when a claim is filed within the statutory period and not withdrawn, the board may entertain it anytime thereafter. The superior court found that the terms “claim” and “hearing” were not used interchangeably in the Act, being separated into two sections in Article Three; that the language and purpose of OCGA § 34-9-100 (c) were “plain and unambiguous”; and that on its face, from its caption, the statute’s scope was limited to “applications for hearing — not the underlying claim.”

The Fulton County Superior Court also found, however, that the five-year period provided for in the statute did not run from the latest request for hearing, as contended by Harrison, but from the earliest request. The court found that the intent of the General Assembly was to promote “finality for litigants, bench and bar,” which is “an important goal of our legal system.” The court reasoned that construing the statute in the manner urged by Harrison would contravene the “express intent” of the General Assembly and “frustrate” the important goal of promoting finality, by allowing claimants to restart the five-year period at will simply by withdrawing one request for hearing and filing another. Following the affirmance of the board’s decision by the Superior Court of Fulton County, Harrison retained new counsel, who filed another request for hearing, which was denied by the ALJ on January 7, 1999. Harrison then filed this legal malpractice action against Deming, Parker in Gwinnett County Superior Court on February 17, 1999.

Harrison contends the Gwinnett County Superior Court erred when it found that OCGA § 34-9-100 (c) was “unclear and not well settled, within the meaning of” Jones, Day &c., supra, and Littleton, supra, and that Deming, Parker was therefore “insulated from liability for the claims asserted” against them. She argues that the ruling of the Gwinnett County court appears on its face to conflict with the Fulton County court’s finding that the statute’s language, as well as its purpose, “[is] plain and unambiguous.” But the Fulton County Superior Court’s finding that the statute’s language was “plain and unambiguous” referred to the clear distinction made in the statute between a “claim” and an “application for hearing,” a distinction recognized in Ogden, supra, almost 30 years before the General Assembly amended the Workers’ Compensation Act in 1985 “to provide for automatic dismissal of certain applications for hearings.” Ga. L. 1985, p. 727.

In contrast, the Gwinnett County court’s ruling addressed the issue raised by Deming, Parker in its motion for summary judgment: the interpretation of the term “any application” in the statute. Deming, Parker argued that a new five-year period specified by the statute began running when each new application for hearing was filed. The Fulton County Superior Court found that the interpretation urged by Deming, Parker would frustrate the purpose of the statute; it found instead that the five-year statutory period began when the first request for hearing was filed and that the filing of subsequent requests for hearing was essentially irrelevant. It did not state, however, that this interpretation of the term “any application” was clear and well settled. The conflict between the two rulings is therefore merely apparent rather than actual.

We are not called upon in this case to interpret the statute, and we do not do so. The relevant issue is not whether Deming, Parker’s interpretation of the statute is correct. It is evident, however, that the statute itself was capable of more than one interpretation. While it clearly and unambiguously differentiates between a “claim” and an “application for hearing,” it was then unclear how the statute should be applied when more than one application for hearing has been made within the context of a single claim.

“Unless the law is so well settled, clear, and widely recognized, an attorney acting in good faith and to the best of his knowledge will be insulated from liability for adverse results.” (Citations and punctuation omitted.) Daugherty v. Jarrett, 239 Ga. App. 466, 467-468 (521 SE2d 406) (1999). “As the legal profession is at best an inexact science, a breach of duty arises only when the relevant, i.e., legal principles or procedures are well settled and their application clearly demanded, and the failure to apply them apparent.” (Punctuation and emphasis omitted.) Jones, Day &c., supra at 83 (2). Given the possibility of more than one interpretation of the statute and the lack of case authority construing it, we cannot say in this case that the meaning of the statute was “clear” or “well settled.” No appellate court had affirmed or approved the interpretation of the Fulton County Superior Court. And no evidence exists in this record that Deming, Parker was ignorant of an accepted legal principle and should have known that the “correct” interpretation of OCGA § 34-9-100 (c) meant that Harrison’s right to a hearing would expire five years after the first, pro se request for hearing was filed.

Decided October 23, 2000

Taylor W. Jones, Jenny E. Jensen, for appellant.

Hawkins & Parnell, T. Ryan Mock, Jr., for appellees.

As in Littleton, we are in sympathy with Harrison’s plight. Id. at 154. But “attorneys are not insurers of the results of their efforts on behalf of clients.” Id. at 151 (1). Harrison has failed to demonstrate legal malpractice on the part of Deming, Parker. The trial court therefore correctly granted summary judgment in its favor. Id. at 154.

Judgment affirmed.

Miller and Phipps, JJ, concur. Johnson, C. J., disqualified.

       Harrison has made at least two previous appearances in this court in cases relating to the underlying subject matter, her claim that she suffered illnesses caused by her employer's move to a new building that she claimed was a “sick building.” In Harrison v. Digital Equip. Co., 219 Ga. App. 464 (465 SE2d 494) (1995), this court affirmed the grant of summary judgment to the employer, architect, and contractor in Harrison’s action against them for damages. In Harrison v. Beckham, 238 Ga. App. 199 (518 SE2d 435) (1999), a legal malpractice action, we affirmed summary judgment in favor of her attorney in the suit against the employer, architect, and contractor. In both actions, summary judgment was granted on the ground that the statute of limitation had expired. Harrison brought this legal malpractice action against the attorney who represented her in her workers’ compensation action arising from the same illnesses.

       The ALJ’s award recites that Harrison’s application for discretionary appeal of the superior court’s ruling was denied, as was her motion for reconsideration, and that the Supreme Court denied her petition for certiorari.


source: Caselaw Access Project

author: Smith, Presiding Judge.

license: Public Domain

text:
    A00A1604.
    CHOAT v. THE STATE.
    (540 SE2d 289)
   Smith, Presiding Judge.

Ronald O. Choat was indicted by a Floyd County grand jury for the offenses of kidnapping, false imprisonment, aggravated assault, and two counts of terroristic threats. The trial court directed a verdict as to one count of terroristic threats, and a jury acquitted Choat of kidnapping but convicted him of the remaining charges. Choat’s motion for new trial was denied, and he appeals, contending the trial court erred in failing to grant his multiple motions for continuance, in failing to grant his motion to dismiss several charges, and in failing to redact sua sponte certain police comments and questions from Choat’s recorded statement. Finding no error, we affirm.

1. Choat moved for a continuance on three different occasions during the trial, asserting that he wanted a new attorney, that two witnesses had not been subpoenaed, and that his attorney was unprepared for trial. His sole argument on this point is that “the combination of these three reasons did necessitate the granting of his motions for continuance.” We disagree.

Motions for continuance based on insufficient time to hire or substitute counsel are addressed to the sound discretion of the trial judge, and the trial judge’s ruling will not be overturned absent an abuse of discretion. In addition, the trial judge may consider the conduct of a party in order to prevent a party from using the discharge and employment of counsel as a dilatory tactic. The party requesting the continuance must show that he exercised due diligence.

(Citations and footnotes omitted.) Bearden v. State, 241 Ga. App. 842, 844 (3) (528 SE2d 275) (2000). When the trial began on August 30, 1999, Choat’s trial counsel had been representing him since May, and the notice of trial had been sent 28 days earlier. On the Friday before trial, at the calendar call, the trial court informed both the State and Choat that the trial would begin on Monday morning. But it was not until court was in session that morning and his counsel had already announced ready that Choat approached the bench pro se and announced that he wanted a continuance “to get another lawyer.” Under these circumstances, we cannot say that the trial court erred in denying a continuance for Choat to obtain new counsel on the morning of trial. Id. at 845.

On the second day of trial, Choat suddenly informed his counsel that his brother Travis Choat and another man, Johnny McLemore, were material witnesses. He asked that they be subpoenaed and requested a continuance for that reason. The trial court ruled, “Okay. I’ll let you get Travis Choat. You can go ahead and send for him.” But the court refused to grant a continuance with respect to McLemore, stating, “I won’t grant a continuance for somebody who we don’t know what he’s going to say.”

Choat did not show that the witnesses had been subpoenaed, that they lived within 100 miles of the court, or that they would be available at the next term of court, as required by OCGA § 17-8-25. We therefore cannot say the trial court abused its discretion in denying the motion for continuance. Redd v. State, 222 Ga. App. 595 (1) (474 SE2d 651) (1996). Moreover, because both witnesses in fact appeared and testified, this ground for a continuance is moot.

Finally, after Choat’s counsel had moved for dismissal of several of the charges and had moved for redaction of portions of Choat’s statement to police, Choat again asked for a continuance on the ground that his attorney was not prepared for trial. The trial court questioned both counsel and Choat individually regarding Choat’s contentions and concluded:

When I talked with you . . . yesterday . . . you made these same motions for a continuance so you can employ a lawyer. You said you want to get the same lawyer that had talked with your brother. I addressed that at the time. Today, you’ve made another motion for a continuance saying that you want another lawyer . . . that Mr. Wyatt’s not properly prepared. I have heard Mr. Wyatt and I’ve heard you, and I believe Mr. Wyatt. He is properly prepared and we’re going forward with your case.

“[T]he grant or denial of a motion for continuance is within the sound discretion of the trial court, OCGA § 17-8-22, and will not be disturbed absent a showing of abuse of that discretion. [Cit.]” Robinson v. State, 202 Ga. App. 576, 577 (2) (a) (415 SE2d 21) (1992). At the time of its ruling, the trial court had had the opportunity to observe Choat’s counsel select a jury and make several motions on his behalf, including a detailed and thorough motion to redact numerous portions of Choat’s statement to the police. Thereafter, counsel vigorously cross-examined the State’s witnesses, including the victim, moved for directed verdict on several specific grounds, and called and examined three witnesses who supported Choat’s account of the incident. Under these circumstances, we cannot say that the trial court abused its discretion in denying Choat’s motion for continuance.

2. Choat asserts that the trial court should have dismissed the aggravated assault and terroristic threats charges in the indictment because, when questioned by police, he was informed only that they were investigating charges of kidnapping and false imprisonment, as demonstrated by his waiver of rights form. Choat relies on Gainer v. State, 144 Ga. App. 703 (242 SE2d 286) (1978); that decision, however, does not deal with the dismissal of an indictment but with an attempt to suppress a confession on the ground that the appellant was not advised of the nature of the offense prior to questioning. This court held:

The fact that the State did not show that the defendant prior to making said statements had been apprised by the interrogating officers of the nature of the investigation and its possible consequences and the full facts and circumstances surrounding the homicide did not affect the admissibility or voluntary character of the statements made by the defendant. These were circumstances to be taken into consideration by the jury in weighing the admissions under the provisions of Code § 38-420 [(OCGA § 24-3-53)].

(Citations and punctuation omitted.) Id. at 706 (2). And nothing in Gainer or similar decisions, see Mungin v. State, 183 Ga. App. 290, 291 (1) (358 SE2d 673) (1987), suggests that dismissal of the indictment is an appropriate remedy in such circumstances.

3. Finally, Choat complains that the trial court erred in failing to redact a police officer’s statement during his interview at the police department: “I know from the past with you, you’ve got a temper and sometimes you can’t control it.” Choat contends this statement impermissibly placed his character in evidence by suggesting a criminal history and that he has a bad temper.

Before trial, Choat’s counsel moved to redact several portions of the interview. The trial court granted his motion in several respects, including part but not all of the exchange that contained the statement of which he now complains. Choat later sought to restore other portions of the interview as to which he successfully obtained redaction. But he did not move to redact, or does not now complain of, numerous other portions of the interview in which both Choat’s temper and his previous acquaintance with the interviewing officer were mentioned. For example, Choat himself originally raised the issue of his temper, denying that he had threatened the victim and stating, “but arguing, you — you’re willing to say anything, really . . . when you’re mad, I mean, if you’re really mad.” He also acknowledged that he had “yanked the telephones out of the wall” and that there was “screaming and hollering,” although he characterized his behavior as “just a regular argument. . . over a little bitty old deal.” As a whole, the burden of Choat’s statement to the police was that his temper, in the course of an argument with the victim, caused him to say things he did not mean. Other unobjected-to discussions of his temper and previous acquaintance with this officer include the officer’s comment earlier in the interview, “Just pitched one of them fits that you used to pitch when you was younger, didn’t you?”

The statement that the officer knew Choat does not, in and of itself, place his character in evidence by raising an inference that Choat is a malefactor or criminal. Maldonado v. State, 240 Ga. App. 497 (2) (523 SE2d 917) (1999) (knew defendant “ Very well’ ”); Childs v. State, 202 Ga. App. 488, 489-490 (2) (414 SE2d 714) (1992) (“had known appellant for a long time”). And, assuming without deciding that a comment on a defendant’s “temper” places his character in evidence, see Willingham v. State, 169 Ga. 142, 143 (6) (149 SE 887) (1929) (“ ‘high temper’ ”), the comment enumerated as error is merely cumulative of other evidence of Choat’s temper that was admitted without objection or is not raised as error on appeal. The admission of cumulative evidence is harmless. See Flowers v. State, 181 Ga. App. 572 (2) (353 SE2d 69) (1987).

Decided October 10, 2000

Reconsideration denied October 24, 2000.

James C. Wyatt, for appellant.

Tambra P. Colston, District Attorney, C. Stephen Cox, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur.

       We note, however, that “|t]he cumulative error doctrine is not recognized in Georgia. [Cit.]” Johnson v. State, 236 Ga. App. 61, 66 (3) (e) (510 SE2d 918) (1999).

       We also note that trial counsel prepared Choat’s brief on appeal.


author: Barnes, Judge.

text:
    A00A1804.
    FLORENCE v. THE STATE.
    (539 SE2d 901)
   Barnes, Judge.

Patrick Florence appeals pro se his convictions for cocaine possession and driving without a license. For the reasons that follow, we affirm.

Construed to support the verdict, the evidence showed that a Mitchell County deputy sheriff saw the car in front of him weave several times across the centerline and right-hand line of the road. He turned on his blue lights and activated a videocamera, and the car pulled off the highway. When Florence got out of the car, he was unsteady and slurring his speech. After fumbling through a small notebook, he told the deputy sheriff he did not have his Maryland driver’s license with him. Florence failed two out of three field sobriety tests. The officer gave his dispatcher Florence’s name and date of birth, and information from Maryland indicated that the license was not valid. Based on his driving and the field sobriety tests, the deputy sheriff arrested him for driving without a license and driving under the influence of alcohol or drugs and then asked permission to search his car for money or cocaine. Florence consented, and the deputy sheriff found two rocks of what a field test revealed to be crack cocaine in the driver’s door pocket and another two rocks on the floorboard. Later forensic testing confirmed that the substance found was cocaine. The State played a videotape to the jury, which showed the stop, arrest, and search from the time the deputy sheriff turned on his blue lights.

1. Florence argues that the trial court erred in denying his motion to suppress evidence of the cocaine, contending first that he was unlawfully stopped. He asserts that he was not weaving, and thus the deputy sheriff had no probable cause to stop him.

In reviewing a motion to suppress,

[t]he evidence is construed most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous. Further, since the trial court sits as the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if there is any evidence to support them.

(Citations omitted.) Morgan v. State, 195 Ga. App. 732, 735 (3) (394 SE2d 639) (1990).

At the hearing on the motion to suppress, the deputy sheriff testified that he stopped Florence after he saw him weave several times across the centerline and the right-hand line of the road. Florence did not testify at the hearing or at trial.

The deputy sheriff was authorized to stop Florence’s car if Florence committed a traffic offense in his presence. O’Keefe v. State, 189 Ga. App. 519, 522 (1) (376 SE2d 406) (1988). “The evidence was sufficient for a rational trier of fact to find that the appellant committed the offense of improper lane usage beyond a reasonable doubt.” Id. Therefore, the trial court did not err in denying Florence’s motion to suppress for lack of probable cause to stop him.

2. Florence next contends that his consent to search his car was not voluntary because he was under arrest when he gave it. Since Florence was lawfully arrested for driving under the influence, whether he consented to the search has no legal significance. Here, the officer

did not exceed the permissible scope of a search incident to arrest under the Fourth Amendment, the Georgia Constitution or OCGA § 17-5-1. To this extent, we must recognize the broad scope of authority granted to police officers in conducting searches of automobiles pursuant to the search incident to arrest exception. In this situation, the authority to search extends to the entire passenger compartment of the automobile.

(Citations and punctuation omitted.) Vega v. State, 236 Ga. App. 319, 320 (512 SE2d 65) (1999); Grabowski v. State, 234 Ga. App. 222, 225 (4) (507 SE2d 472) (1998). The trial court did not err in denying Florence’s motion to suppress evidence of the cocaine found in his car.

3. Florence asserts that the videotape of his arrest was altered. However, the arresting officer testified that no changes, deletions, or additions had been made to the videotape, and Florence did not object at trial when the State moved to admit the videotape into evidence or after the tape was shown to the jury. “As appellant failed to object to this question, thereby raising the issue in the court below, there is nothing for this court to consider on appeal.” Manbeck v. State, 165 Ga. App. 625, 627 (5) (302 SE2d 361) (1983).

4. Florence contends that the cover pages of his trial and hearing transcripts were altered because the charges differed. The cover page of the transcript of the motion to suppress hearing and a status conference showed that Florence was charged with cocaine possession, DUI, and driving with a suspended or revoked license. However, Florence was properly accused of and tried for cocaine possession and driving without a license. “It is axiomatic that harm as well as error must be shown to authorize a reversal by this court. We cannot perceive how the [documents] in question could possibly have been harmful to the appellant.” (Citation and punctuation omitted.) Anderson v. State, 183 Ga. App. 313 (3) (358 SE2d 888) (1987). We find no error.

5. Florence also contends that various statements made at trial were incorrect, such as the trial court’s indication that his former counsel would sit at the counsel table with him to assist with questions of law should the need arise. Again, Florence has not shown that any misstatement, if there were any, caused harm, and therefore we find no error. Anderson v. State, supra, 183 Ga. App. 313 (3).

6. Florence argues that the State’s opening was unconstitutional because it referred to Florence’s wife’s occupation. The record shows that the State asked during voir dire whether any of the potential jurors knew the defendant’s relatives, noting that his wife, Eloise Florence, taught at Bainbridge High School. However, Florence’s failure to object to the question leaves us nothing to consider on appeal. Manbeck v. State, supra, 165 Ga. App. at 627 (5).

7. Florence claims he was unconstitutionally held without bond, but the record shows he was given a $15,000 bond. This enumeration of error is without merit.

8. Florence claims his former counsel was ineffective because in one paragraph of his motion to suppress he erroneously indicated that Florence was a passenger rather than the sole occupant and driver of the car. We cannot consider this portion of Florence’s claim, however, because he did not raise it below in a motion for new trial. See Seese v. State, 235 Ga. App. 181, 183-184 (3) (509 SE2d 94) (1998) (failure to raise ineffective assistance of counsel claim at earliest opportunity results in a waiver of that claim).

Even if Florence had properly raised this issue before the trial court, the record does not show ineffective assistance of counsel. While previous counsel’s written motion to suppress does refer in one paragraph to Florence as a passenger, the preceding paragraph refers to him as operating the vehicle. Furthermore, counsel argued during the suppression hearing that Florence was operating the vehicle. And in its order denying the motion to suppress, the trial court found that Florence was driving. Therefore, Florence has shown no harm in his previous trial counsel’s misstatement.

Decided October 2, 2000

Reconsideration denied October 24, 2000.

Patrick Florence, pro se.

J. Brown Moseley, District Attorney, Victoria Spear-Darrisaw, Assistant District Attorney, for appellee.

9. Florence alleges he was not allowed access to legal materials to prepare for trial, but has failed to show either that he raised the issue at the trial level or that he suffered resulting harm. We find no error. Anderson v. State, supra, 183 Ga. App. 313.

10. Finally, Florence asserts that insufficient evidence supports his conviction for driving with no license. OCGA § 40-5-20 (a) provides that “[n]o person . . . shall drive any motor vehicle upon a highway in this state unless such person has a valid driver’s license. . . .” When arrested, Florence did not produce a valid driver’s license, and the officer testified that his dispatcher received information indicating that Florence’s Maryland driver’s license was not valid. “Appellant’s failure to produce the license upon demand gave rise to a rebuttable, reasonable inference that he did not have a valid license.” Duckworth v. State, 223 Ga. App. 250, 255 (4) (477 SE2d 336) (1996); Gibson v. State, 187 Ga. App. 769, 771 (4) (371 SE2d 413) (1988). We conclude that the evidence was sufficient for a rational trier of fact to find Florence guilty beyond a reasonable doubt of driving without a valid license. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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


author: Phipps, Judge.

text:
    A00A2556.
    THE STATE v. JONES.
    (540 SE2d 622)
   Phipps, Judge.

A multi-count accusation was preferred against Paul Jones. The State appeals the trial court’s grant of Jones’s special demurrer to Counts 5 and 6, which charged Jones with fleeing or attempting to elude a police officer. Because an accused may commit the offense at issue in more than one manner and because the accusation fails to specify the manner in which the offense was allegedly committed, we affirm the trial court’s grant of the special demurrer.

OCGA § 40-6-395 (a) makes it unlawful for any driver of a vehicle wilfully to fail or refuse to bring his or her vehicle to a stop or otherwise to flee or attempt to elude a pursuing police vehicle or police officer “when given a visual or an audible signal to bring the vehicle to a stop.” OCGA § 40-6-395 (a) states that the signal given by the police officer “may be by hand, voice, emergency light, or siren.”

Count 5 alleged that Jones “did willfully attempt to elude a pursuing police vehicle when given a visual signal to bring the vehicle to a stop.” Count 6 alleged that Jones “did willfully fail to bring his vehicle to a stop when given a visual signal by a pursuing police vehicle.” The trial court granted Jones’s special demurrer to Counts 5 and 6 under the rule that “[w]here a crime may be committed in more than one way, the failure to charge the manner in which the crime was committed subjects the indictment or accusation to a proper special demurrer. [Cits.]” The court was correct in this ruling, because the offense charged could have been committed by Jones’s failure to respond to a visual signal of the officer either by hand or by emergency light, and the accusation does not allege which type of visual signal Jones was given.

The State’s reliance on cases such as Reed v. State and Williams v. State is misplaced. Those cases involved general demurrers or motions to quash, accusations or indictments. An accusation or indictment is not subject to a general demurrer unless there is a defect so extreme that the defendant can admit the charge as made and still be innocent. In contrast, an accusation or indictment is subject to special demurrer if it is not “perfect in form as well as substance.”

By special demurrer an accused claims, not that the charge in an indictment or accusation is fatally defective and incapable of supporting a conviction (as would be asserted by general demurrer), but rather that the charge is imperfect as to form or that the accused is entitled to more information. [Cit.]

Here, the defendant was entitled to the additional information so that he could prepare his defense.

Decided October 6, 2000

Reconsideration denied October 24, 2000

Joseph J. Drolet, Solicitor, Shukura L. Ingram, Assistant Solicitor, for appellant.

Patterson & Patterson, Jackie G. Patterson, Yasma Patterson, for appellee.

Judgment affirmed.

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

        Haska v. State, 240 Ga. App. 527 (1) (523 SE2d 589) (1999).

       205 Ga. App. 209, 210 (1) (422 SE2d 15) (1992).

       165 Ga. App. 69, 70 (4) (299 SE2d 402) (1983).

        Jenkins v. State, 121 Ga. App. 103, 104 (1) (172 SE2d 845) (1970).

         King v. State, 176 Ga. App. 137, 139 (2) (335 SE2d 439) (1985), disapproved on other grounds, Copeland v. White, 178 Ga. App. 644 (344 SE2d 436) (1986).

        Bowen v. State, 242 Ga. App. 37, 38 (528 SE2d 553) (2000).

       See generally State v. Kenney, 233 Ga. App. 298 (503 SE2d 585) (1998).


text:
    A00A0945.
    YASINSAC v. COLONIAL OIL PROPERTIES, INC. et al.
    (541 SE2d 109)
   Phipps, Judge.

Vecie Yasinsac appeals an order of summary judgment on her negligence claims against Colonial Oil Properties, Inc., Enmark, Inc. and Enmark Stations, Inc. We affirm because we find that Yasinsac had knowledge of the alleged hazard equal to that of the defendants.

On March 6, 1997, Yasinsac went to an Enmark gas station in Kingsland. After her car was filled with gasoline, she went to pay at a booth occupied by an attendant. In front of the booth was a landing or step, 6.5 inches’high and 18 inches deep, that spanned the width of the booth. Yasinsac stepped onto the landing and handed the attendant a credit card. The attendant asked her to step aside as he processed the card and served the next customer. When Yasinsac stepped away from the window, she fell off the landing and onto the concrete pavement, breaking her hip.

Yasinsac sued Colonial Oil, Enmark and Enmark Stations on the theory that the landing constituted a hazardous condition and that they had a duty to take adequate measures to protect their patrons from it. Applying standards set forth in Robinson v. Kroger Co., the trial court granted summary judgment on the basis that no evidence had been presented which showed that the defendants had actual or constructive knowledge of the allegedly dangerous condition. Yasinsac asserts that the defendants did have constructive knowledge of the hazard, that she did not have equal or superior knowledge, that the distraction doctrine applies to this case and that evidence of a building code violation creates a jury question.

1.

[I]n order to recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier.

“[T]he fundamental basis for an owner or occupier’s liability [is] that party’s superior knowledge of the hazard encountered by the plaintiff.” “[I]f [an] invitee knows of the condition or hazard,. . . [she] has as much knowledge as the proprietor does and then by voluntarily acting in view of [her] knowledge [ ] assumes the risks and dangers incident to the known condition.” “In everyday life, persons are required to negotiate . . . floors, steps and doorways. . . .”

There can be no question that the defendants are charged with knowledge of the landing. However, even if we assume that the landing constituted a hazardous condition, the evidence in the record does not demonstrate that defendants had superior knowledge of the condition. Shortly before she fell, Yasinsac had stepped onto the landing without incident. Thus, she also was clearly aware of its existence.

Contrary to Yasinsac’s argument, we find that this case is factually distinguishable from Whitley v. Hulon and Pinkney v. VMS Realty. In those cases, the plaintiffs stated that due to conditions such as poor lighting and lack of warning markers, railings and color contrast, they were unable to appreciate dangers posed by sloped surfaces. There is no similar testimony from Yasinsac in this record.

2. “Stated succinctly, the distraction doctrine holds that ‘one is not bound to the same degree of care in discovering or apprehending danger in moments of stress or excitement or when the attention has been necessarily diverted. . . .’ [Cits.]” In Robinson, the Supreme Court of Georgia explained:

when an invitee explains that he was not looking at the location of the hazard which caused injury because of something in the control of the owner/occupier, which purported distraction is of such a nature that the defendant might have anticipated that it would divert an invitee’s attention, e.g., the conduct of a store employee, the premises construction or configuration, or a merchandise display of such a nature that its presence would not have been anticipated by the invitee, the invitee has presented “some evidence that (the invitee) exercised reasonable care for (the invitee’s) own safety. . . .’ [Cit.]” It will then be for the fact-finder to determine if the injury sustained was proximately caused by the defendant’s negligence and whether the plaintiff failed to exercise reasonable care for personal safety.

Yasinsac asserts that she was distracted when the booth attendant told her to step aside while he processed her credit card transaction. But the distraction doctrine does not apply where the plaintiff had actual knowledge of the hazard before the alleged distraction occurred. Here, the record shows that Yasinsac had actual knowledge of the landing before the alleged distraction because she had stepped onto the landing and stood on it until she was asked to step aside.

3. Yasinsac presented the affidavit of an expert, who asserted that “the landing in front of the payment window was an insufficient depth for safe use as required by the Building Code.” But “[n]egligence per se is not liability per se. [Cit.] ‘Negligence, it should be remembered, is in itself (only) one of the essential elements prerequisite to a cause of action in a given case.’ [Cit.]” Even if Yasinsac could show that maintenance of the landing constituted negligence per se as a violation of the building code, she would be precluded from recovering because of the equal knowledge rule.

Although we disagree with the trial court that there was no evidence that defendants had knowledge of the subject condition, we find that summary judgment was properly granted because Yasinsac had equal knowledge of the condition.

Judgment affirmed.

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

Decided October 24, 2000

Randall C. Sorenson, for appellant.

Whelchel, Brown, Readdick & Bumgartner, J. Thomas Whelchel, for appellees.

       268 Ga. 735, 748-749 (2) (b) (493 SE2d 403) (1997).

       The court’s order does not include a specific finding that Yasinsac had equal or superior knowledge of the hazard allegedly posed by the landing.

       Id.

       Id. at 736 (1); Hardee’s Food Systems v. Green, 232 Ga. App. 864 (502 SE2d 738) (1998).

        Warnke v. Pace Membership Warehouse, 215 Ga. App. 33, 34 (449 SE2d 629) (1994).

        Sullivan v. Quisc, Inc., 207 Ga. App. 114, 115 (427 SE2d 86) (1993).

       See Davis v. GBR Properties, 233 Ga. App. 550, 551-552 (1) (504 SE2d 204) (1998).

       194 Ga. App. 363 (390 SE2d 598) (1989).

       189 Ga. App. 177 (375 SE2d 90) (1988).

       (Emphasis supplied.) Robinson v. Kroger Co., supra at 744 (2) (a).

       Id. at 746.

        Means v. Marshalls of MA, 243 Ga. App. 419, 421 (2) (532 SE2d 740) (2000); see also McCoy v. West Bldg. Materials, 232 Ga. App. 620, 622 (502 SE2d 559) (1998).

        Florence v. Knight, 217 Ga. App. 799, 800 (459 SE2d 436) (1995).

       Id.; Sullivan, supra at 116.

       See Caswell v. Anderson, 241 Ga. App. 703, 706 (527 SE2d 582) (2000) (“A summary judgment ruling that is right for any reason must be affirmed.”).


author: Johnson, Chief Judge.

text:
    A00A0958, A00A1530.
    DeCLUE v. CITY OF CLAYTON (two cases).
    (540 SE2d 675)
   Johnson, Chief Judge.

The City of Clayton fired Jeffrey DeClue from his position as Superintendent of the City’s Department of Water and Wastewater Treatment. DeClue sued the City, alleging that the City violated his due process rights by changing its employment policies without giving him notice and a hearing and also by firing him without providing notice and a hearing. He further alleged that the City unconstitutionally impaired his employment contract rights by adopting and applying the new policies to him.

Both parties moved for summary judgment on the due process claim. The trial court granted the City’s motion and denied DeClue’s motion. DeClue also filed a motion for summary judgment on the impairment of contract claim, which the trial court denied. In Case No. A00A0958, DeClue appeals from these orders.

While the appeal in Case No. A00A0958 was pending, the City moved for summary judgment on DeClue’s impairment of contract claim. The trial court granted the City’s motion. In Case No. A00A1530, DeClue appeals from that order. Because the cases are related, they have been consolidated on appeal.

The following facts are relevant to these appeals. The City hired DeClue in 1987 for an indefinite period of time and with no written contract. At the time he was hired and throughout his employment, the City had written personnel policies in place. Although the parties have not introduced copies of the policies which were in effect in 1987, they both rely upon the City’s 1992 personnel manual as containing the policies in effect from the date of DeClue’s hiring until at least 1997.

The City’s 1992 personnel manual provides that certain specified conduct by employees is cause for disciplinary action. Prohibited conduct includes, for example, negligence or inefficiency in performing job duties, unfitness, insubordination, absenteeism or tardiness, theft of City property, and alcohol or drug use while on duty. The manual sets out five types of progressively severe discipline and requires that employees be given notice prior to the effective date of any adverse action. The policies provide that in certain cases, employees may be disciplined immediately, but that they will still be given notice of the reasons for the disciplinary action within a reasonable time and shall have the appeal and hearing rights set out in the policies. The policies give the employee an opportunity to respond to the notice and to appeal through an administrative hearing process.

In contrast to these provisions, the manual also states that, in establishing the policies and procedures, the City is “not creating a property interest for employees that leads to the expectancy of continued employment at any time,” and that the City is an “at-will” employer. The manual further provides that the policies are subject to periodic revisions throughout the year, additional policies will be incorporated into the manual, and the City will review the policies annually to determine if additional revisions are necessary.

Sometime in 1996, the Mayor told DeClue that the City was considering changing the personnel policies. Then, in July 1996, the City held a meeting with its employees, including DeClue, to discuss the proposed changes. DeClue could not recall if he had a draft of the proposed changes at the time, but he believed he did. DeClue spoke at the meeting, telling city officials “that I didn’t think that it was right to take away the grievance procedures . . . and that they should be protecting the rights of the employees. . . .” He argued that the City should keep the current policy, only amending it as necessary.

In January 1997, the City adopted new personnel policies. The new policies superseded the previous policies and removed all of the provisions regarding grounds for disciplinary action, notice, and grievance procedures. Like the 1992 manual, the new manual provides that the City is not creating a property interest and that employment is “at will.” DeClue received a copy of the revised policies that same month.

In March 1997, after allegedly receiving complaints from City employees about DeClue’s conduct at work, the City Manager asked DeClue to attend a meeting with City Council members. At the meeting, the City Manager told DeClue he was going to be fired and gave him the option of resigning. DeClue replied that he wanted to consult an attorney and then left the meeting. His termination became effective the same day. DeClue did not request a hearing or file a grievance regarding his termination. Instead, he filed this lawsuit.

Case No. A00A0958

1. The due process claim. DeClue contends the trial court erred in denying his motion for summary judgment and granting the City’s motion for summary judgment on the due process claim. DeClue claims he had a property interest in his employment, and he was deprived of that property interest without due process, in violation of the federal and state constitutions. We hold that he was not denied due process.

The Fourteenth Amendment to the U. S. Constitution protects persons from deprivation of liberty or property without due process of law. Property interests are not created by the federal constitution; they are created and defined by rules and understandings stemming from an independent source, such as state law.

Under Georgia law, generally, one in public employment has no vested right to such employment. However, a public employee has a property interest in his job if his employment allows dismissal only for cause. An explicit contractual provision, rules, or common understandings may determine whether an employee is terminable at will or only for cause. The issue is not dependent upon the presence of the specific words “for cause” in the employer’s written personnel policies, as long as whatever provisions apply are meant to be analogous to allowing termination only for cause. The expectations of the parties involved are also relevant to this issue.

There is some evidence supporting DeClue’s argument that he had a property interest under the 1992 policy manual. As discussed above, the 1992 manual allows disciplinary action against employees only for certain reasons, requires notice before disciplinary action is taken in most cases, provides for progressive discipline, and provides employees with an opportunity to respond to charges and pursue administrative appeals. In fact, the manual lists as grounds for disciplinary action “violation of any other provision of these policies or any other reason which is just cause for discipline.” (Emphasis supplied.) And, there is some evidence that the parties expected that termination would be only for cause, given a council member’s testimony that he believed the City needed a reason to fire employees and DeClue’s testimony that he believed an employee had a right to a grievance hearing before being fired. Thus, there is evidence that the 1992 manual allows termination only for cause.

At the same time, however, the 1992 manual expressly provides that the City is not creating a property interest, that employment is at will, and that the policies are subject to periodic revision and annual review by the City. This indicates that termination can be without cause. Therefore, DeClue has not shown as a matter of law that the 1992 policies gave him a property interest in his continued employment with the City. Thus, he was not entitled to summary judgment on this issue.

Although the evidence conflicts regarding the existence of a property interest, the City was entitled to summary judgment on the due process issue. This is because even if we assume DeClue had a property interest under the 1992 policy, two material due process questions remain: Was the City authorized to change the rules in 1997 and apply those rules to DeClue? Did DeClue receive due process? We answer both questions in the affirmative.

An employer may affect, revoke, or terminate even vested property rights so long as it does so in accordance with constitutional standards of due process. The constitutionally guaranteed right to due process is, at its core, the right of notice and the opportunity to be heard. The due process right does not guarantee a particular form or method of procedure, but is satisfied if a party has reasonable notice and opportunity to be heard and to present its claim or defense.

DeClue complains that the City deprived him of his property interest in continued employment by changing the personnel policies without first giving him notice and an opportunity to be heard. Specifically, he complains that the City did not emphasize the fact that employees would lose their “for cause” rights if the proposed changes were made, held only one meeting to discuss the proposed changes, and did not provide employees with a draft of proposed changes.

Despite these arguments, DeClue admitted on deposition that the Mayor notified him in advance that the City was considering changing the personnel policies. Then, before the policies were changed, the City met with employees, including DeClue, about the changes. DeClue voiced his opposition to the changes, specifically addressing the repeal of the grievance procedures. DeClue told city officials that he wanted to keep the old policies. It is clear that DeClue was aware of the proposed changes, that he had notice of the proposed changes, and that he exercised his opportunity to be heard regarding the changes. Therefore, his argument that the City changed the policies without first giving him the requisite notice and opportunity to be heard is without merit. We do not agree that the City was required to emphasize certain revisions at the meeting, particularly when DeClue clearly knew about them, or that the City was required to hold more than one meeting to satisfy the basic requirements of procedural due process.

And, because DeClue no longer had any property interest in his employment after the new policies became effective in 1997, the City did not violate his due process rights by terminating his employment without notice and a hearing.

2. The impairment of contract claim. DeClue argues that the trial court erred in denying his motion for summary judgment based on his impairment of contract claim. In that claim, DeClue asserts that the City violated the state constitution when it passed an ordinance adopting the new policies, thereby impairing the contract under which he was hired. We agree with the trial court that DeClue was not entitled to summary judgment on this issue.

A governing authority has the power to amend or adopt reasonable ordinances, resolutions, or regulations relating to its property affairs and local government which are not inconsistent with the constitution. The Georgia Constitution prohibits a legislative body from passing laws that impair the obligation of a contract. A constitutional act of the legislature has been found to be the equivalent of a contract, and the rights created thereby cannot be impaired by subsequent legislation.

In this case, the City created the equivalent of a contract when it passed the ordinance adopting the 1992 personnel policies. Yet, it did not impair DeClue’s contract rights in 1997 when it passed the ordinance adopting the new policies. The 1992 policies expressly provide that they are subject to periodic revision by the City and that the policies will be reviewed annually to determine if additional revisions are necessary. Where the contract terms themselves provide for subsequent amendment, modification, or termination, no “vested” right under the contract is created. Thus, the later legislation did not impair DeClue’s contract rights as prohibited by Georgia’s Constitution.

The case of Clark v. State Personnel Bd. does not require a contrary result. In Clark, the legislature had amended OCGA § 45-20-2 (15) (Y) so as to remove the position of “Major” in the Department of Public Safety from state merit system classification. Employees currently holding that position sued, alleging the new legislation unconstitutionally impaired the obligation of contracts. The Supreme Court found that the state merit system employees had contract rights which could not be impaired by subsequent legislation and that the merit system was obligated to comply with the rules as they existed when the employees assumed their positions as Majors.

This case is different. In Clark, the Court based its decision on the fact that the Merit System Act has as its stated purpose that of building a career service in government which would attract, select, and retain the best employees based on merit, without coercive political influences. The Court reasoned that the purposes of the Merit System Act would be achieved by affording reasonable job security for competent employees. The Supreme Court stated that “(t)o say that the Merit System Act does not create a constitutionally protected contract between the merit system members and the state would overlook the obvious purpose of the Act itself.”

The policies in the instant case contain no purpose such as that discussed in Clark. Indeed, in this case, the City makes it clear in its 1992 policies that it has “no intention of establishing a civil service system with these policies,” that it is an “at-will employer,” and that it “is not creating a property interest for employees that leads to the expectation of continued employment at any time, in any positions.” This intent is further borne out by the City’s reserving the right to regularly review and unilaterally revise its policies. The trial court did not err in denying DeClue’s motion for summary judgment on this issue.

3. Because the trial court correctly granted summary judgment to the City on the due process and impairment issues and because the grant of summary judgment must be affirmed if it is right for any reason, we need not consider DeClue’s argument regarding whether he exhausted his administrative remedies prior to filing suit.

4. DeClue argues that the trial court violated Uniform Superior Court Rule 6.6 by moving the trial from the November 1999 calendar to the February 2000 calendar, which allowed the City time to move for summary judgment. The trial court gives no reason in its order for rescheduling the trial. In fact, the City urges that the trial was rescheduled only after DeClue informed the court that he was going to appeal its orders regarding summary judgment. Nothing in the record indicates that the trial was reset so that the City could move for summary judgment on the impairment claim. The trial court has broad discretion in regulating its business and in scheduling trials. And we will not presume error from a silent record. This enumeration presents no grounds for reversal.

Decided October 24, 2000

Orr & Orr, E. Wycliff Orr, Kristine E. Orr, for appellant.

Goldner, Sommers, Scrudder & Bass, Glenn S. Bass, Aaron J. Aberson, William B. Barker, for appellee.

Case No. A00A1530

5. DeClue contends the trial court erred in granting the City’s motion for summary judgment on the impairment claim. For the reasons discussed in Division 2, the City would be entitled to summary judgment on this issue.

However, DeClue correctly points out that the trial court was without jurisdiction to consider the City’s summary judgment motion on the impairment of contract claim while the case was being considered in this Court. The filing of the notice of appeal operates as a supersedeas and deprives the trial court of the power to affect the judgment appealed, so that subsequent proceedings purporting to supplement, amend, alter, or modify the judgment are without effect. The trial court’s order purporting to supplement the judgment as to the impairment claim, which issue was being considered in this Court, is a nullity and must be vacated. On remand, the trial court is directed to enter an order on the City’s summary judgment motion consistent with this opinion.

Judgment affirmed in Case No. A00A0958.

Judgment vacated and case remanded with direction in Case No. A00A1530.

Pope, P. J, and Phipps, J., concur.

        Brown v. Ga. Dept. of Revenue, 881 F2d 1018, 1024 (11th Cir. 1989).

       Id.

        Dixon v. MARTA, 242 Ga. App. 262, 264 (1) (529 SE2d 398) (2000).

        Maxwell v. Mayor &c. of Savannah, 226 Ga. App. 705, 707 (1) (487 SE2d 478) (1997); see Dixon, supra.

        Brown, supra at 1025.

        Maxwell, supra.

       Id.

       See Brown, supra at 1027.

        Peterson v. Atlanta Housing Auth., 998 F2d 904, 914-915 (11th Cir. 1993).

        Cobb County School Dist. v. Barker, 271 Ga. 35, 37 (2) (518 SE2d 126) (1999).

       Id.

       See generally City of Atlanta v. Mahony, 162 Ga. App. 5, 6 (289 SE2d 250) (1982).

       See generally Camden County v. Haddock, 271 Ga. 664, 665 (1) (523 SE2d 291) (1999).

       OCGA § 36-35-3 (a), (b).

       Art. I, Sec. I, Par. X; Fulton v. Baker, 261 Ga. 710, 711 (410 SE2d 735) (1991).

        Enger v. Erwin, 245 Ga. 753, 754 (267 SE2d 25) (1980).

        Murray County v. Adams, 218 Ga. App. 220, 222 (1) (461 SE2d 228) (1995).

       See generally Pulliam v. Ga. Firemen’s Pension Fund, 262 Ga. 411, 413 (1) (419 SE2d 918) (1992).

       252 Ga. 548 (314 SE2d 658) (1984).

       Id. at 549.

       OCGA § 45-20-1 (b); Clark, supra.

       See Nairon v. Land, 242 Ga. App. 259 (529 SE2d 390) (2000).

       USCR 6.6 provides that motions for summary judgment shall be filed sufficiently early so as not to delay trial and that no trial is to be continued by reason of the delayed filing of a summary judgment motion.

       See generally Stubbs v. Carpenter, 271 Ga. 327, 328 (519 SE2d 451) (1999).

       See Bonner v. Smith, 226 Ga. App. 3, 4 (2) (485 SE2d 214) (1997).

       See Bryan v. Brown Childs Realty Co., 236 Ga. App. 739, 742 (2) (513 SE2d 271) (1999).


text:
    A00A1134.
    JONES v. THE STATE.
    (540 SE2d 693)
   Phipps, Judge.

Andez Jones appeals his conviction for armed robbery, contending that the evidence was insufficient to support the conviction and that his trial counsel was ineffective in failing to request a lesser included offense instruction on theft by taking. We find that the evidence was sufficient to support a conviction for armed robbery and did not warrant an instruction on theft by taking. Therefore, we affirm.

The evidence showed the following. On July 21, 1994, Jones and two other men entered the Midtown Pharmacy in Columbus, brandishing firearms and yelling, “This is a stickup.” Jones went to the center aisle of the store and yelled directions. Another gunman went to the lone customer in the store, ordered her to get on the floor and held her there at gunpoint. The third gunman attempted to open a cash register. When he could not, he forced a store employee to another cash register. The employee was unable to open the register because he did not know how.

Jones then placed his gun to the head of a different employee who he apparently believed could open a cash register. As Jones walked that employee, a delivery man, toward a cash register, the employee yelled the name “Maurice” repeatedly. He did not know how to open a cash register but knew that there was another employee named Maurice hiding in the store who did know how to open a cash register. The gunmen abruptly fled the store, apparently because one of them was named “Maurice” and they believed he had been recognized.

The gunman holding the customer took her purse from the pharmacy counter before fleeing. The purse was the only property taken in the robbery.

Jones later confessed that he had participated in planning and perpetrating the robbery and that he put a gun to the head of one of the employees. He was indicted for armed robbery based upon the taking of the purse.

1. Jones contends that the evidence was insufficient to support his conviction for several reasons.

(a) First, he asserts that he and his co-defendants had intended to rob only the store and not any of the patrons and that because the armed robbery of the pharmacy was unsuccessful, a charge of armed robbery could not be based on a co-defendant’s taking of a customer’s purse off a counter as they fled. However,

[a]ll of the participants in a plan to rob are criminally responsible for the acts of each, committed in the execution of the plan, and which may be said to be a probable consequence of the unlawful design, even though the particular act may not have actually been a part of the plan. [Cits.]

The jury was authorized to find that taking property from a patron was “a probable and foreseeable consequence” of the underlying conspiracy to rob the store.

(b) Next, Jones argues that he was a not a party to the taking of the purse because he had fled the store and thereby abandoned the criminal enterprise before the last gunman grabbed the purse. The evidence belies that contention. A still photograph from a surveillance videotape shows all three robbers exiting the store at roughly the same time. Moreover, abandonment is an affirmative defense which depends upon a voluntary and complete renunciation of criminal purpose.

A renunciation of criminal purpose is not voluntary and complete if it results from ... [a] belief that circumstances exist which [will] increase the probability of detection or apprehension of the person or which render more difficult the accomplishment of the criminal purpose. . . .

The evidence shows that Jones fled the store to avoid apprehension.

(c) Finally, Jones argues that the taking of the purse constituted theft by taking rather than armed robbery because the customer was unaware that her purse had been taken until after the gunmen had left the store. Jones argues that, therefore, the element of force is lacking. Jones cites McNearney v. State and Grant v. State in support of his argument.

We find that those cases are factually distinguishable and that this case instead is controlled by Culver v. State. There, an intruder entered the victim’s bedroom in the early morning hours, put a knife to her throat, threatened to kill her and raped her. As the intruder left, he took approximately $600 from the victim’s purse. The victim did not witness the taking because her face was covered with a pillow or blanket, and the intruder had told her not to move or he would kill her. This court found that there was sufficient evidence of force to support an armed robbery conviction because “a jury could find that the victim was aware that her life and personal property were at risk while [the intruder] terrorized her and remained in her home.”

Here, the element of force is also readily apparent. Before the robbery, the customer had rested her purse on the pharmacy counter while she spoke to a pharmacy technician. When the gunmen entered, she heard them yell, “This is a holdup.” One of them forced her to the floor with a gun to her head and stood over her the entire time. When she looked up once, he told her that if she moved, he would kill her. Thereafter, she remained on the floor with her head down, shaking and crying.

Although the victim may not have seen the gunman snatch her purse from the counter and run away with it, the evidence showed indisputably that she had been forced at gunpoint to relinquish possession and control of the purse and assume a submissive position. She was clearly aware that her life and her property were at risk.

For these reasons, we find that the evidence was sufficient to support Jones’s conviction for armed robbery.

2. Jones asserts that his trial counsel was ineffective in failing to request a lesser included instruction on theft by taking because there was at least a jury question whether the victim’s awareness of the taking was sufficient to prove armed robbery.

To establish ineffective assistance of counsel, the defendant must show both that his trial counsel’s performance was deficient and that he was prejudiced to the extent that “ ‘there exists a reasonable probability that, but for his counsel’s errors, . . . the result of the proceeding would have been different. . . . [Cit.]” A trial court’s determination that a defendant has been afforded effective assistance of counsel must be upheld unless clearly erroneous.

The complete rule with regard to giving a defendant’s requested charge on a lesser included offense is: where the state’s evidence establishes all of the elements of an offense and there is no evidence raising the lesser offense, there is no error in failing to give a charge on the lesser offense. [But] [w]here a case contains some evidence, no matter how slight, that shows that the defendant committed a lesser offense, then the court should charge the jury on that offense.

Decided October 24, 2000.

William J. Mason, for appellant.

J. Gray Conger, District Attorney, E. Wayne Jernigan, Jr., Assistant District Attorney, for appellee.

There was no evidence that the gunmen committed theft by taking rather than armed robbery. It is indisputable that the use of force enabled the gunmen to take possession of the victim’s purse. Thus, the evidence did not warrant an instruction on theft by taking, and Jones’s trial counsel did not err in failing to request one. We agree with the trial court’s determination that Jones received effective assistance of counsel.

Judgment affirmed.

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

        Lobdell v. State, 256 Ga. 769, 773 (7) (353 SE2d 799) (1987).

        Huffman v. State, 257 Ga. 390, 392 (2) (359 SE2d 910) (1987).

       OCGA § 16-4-5 (a); see also Lobdell, supra at 771-772 (1); Cunningham v. State, 240 Ga. App. 92, 99 (4) (c) (522 SE2d 684) (1999).

       OCGA § 16-4-5 (b) (1).

       See Hayes v. State, 193 Ga. App. 33, 36 (7) (387 SE2d 139) (1989).

       The customer testified that she lay on the floor with her head down during the robbery. It can be inferred that she did not see her purse as it was taken and was unaware of the taking until after the robbery concluded.

       See State v. Epps, 267 Ga. 175, 176 (476 SE2d 579) (1996) (“A taking accomplished by force or intimidation is the ‘distinguishing characteristic’ of robbery — the ‘gist’ of the offense. [Cit.]”).

       210 Ga. App. 582 (436 SE2d 585) (1993).

       226 Ga. App. 506 (486 SE2d 717) (1997).

       230 Ga. App. 224 (496 SE2d 292) (1998).

       Id. at 231 (6).

       Id.

       See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Ross v. State, 231 Ga. App. 793, 795-796 (1) (499 SE2d 642) (1998).

       Id.

       (Emphasis in original.) Smith v. State, 244 Ga. App. 667 (1) (536 SE2d 561) (2000).

       See OCGA § 16-8-41 (a); Epps, supra; Wilson v. State, 264 Ga. 455, 456 (448 SE2d 184) (1994).


author: Blackburn, Presiding Judge.

text:
    A00A1188.
    A00A1189.
    KROPP v. ROBERTS et al. CANDLER HOSPITAL, INC. v. ROBERTS et al.
    (540 SE2d 680)
   Blackburn, Presiding Judge.

This case involves the adequacy of an expert’s affidavit filed in support of a medical malpractice action. Gwendolyn Roberts, acting in a representative capacity, brought a medical malpractice claim against William Kropp, M.D., and Candler Hospital, Inc. She filed the affidavit of R. A. Janho, M.D., with the complaint. The affidavit alleged professional negligence on the part of the defendants. However, the affidavit showed that Dr. Janho signed it on May 31, 1998, while the notary’s signature and seal were dated June 3, 1998. Arguing that the affidavit was invalid, defendants made separate motions to dismiss. Roberts subsequently filed an additional affidavit of Dr. Janho which affirmed that Dr. Janho had signed the earlier affidavit in the presence of the notary.

Because the trial court found Roberts had entered evidence outside the pleadings, it converted defendants’ motions to dismiss into motions for summary judgment. On October 27, 1999, the trial court issued its order denying defendants’ motions to dismiss/ motions for summary judgment. Dr. Kropp filed this appeal following our grant of his application for interlocutory appeal. Candler Hospital cross-appeals.

Case No. A00A1188

Our review of the record is de novo. See Pyle v. City of Cedar-town. “ ‘In order to make an affidavit, there must be present the officer, the affiant, and the paper, and there must be something done which amounts to the administration of an oath.’ ” Harris v. Murray. The signatures of the affiant and the officer in Dr. Janho’s affidavit appear to be made on different days, bringing into question whether the two were together at the same time and place. Dr. Kropp maintains that the affidavit was therefore a nullity and not subject to amendment. However, it has been clearly established that where the date of the affiant’s signature and the date of the notary’s attestation differ, “such error is an amendable defect and does not render the affidavit void ab initio.” Weekes v. Nationwide Gen. Ins. Co.

Plaintiffs filed a second affidavit affirming that Dr. Janho had taken the oath on June 3,1998, and not May 31,1998, as indicated in his initial affidavit. However, the subsequent affidavit was filed 34 days after Dr. Kropp had filed his motion to dismiss. Dr. Kropp argues that the defect in the initial affidavit was not timely cured because it was not filed within the 30-day time period established by OCGA § 9-11-9.1 (d). Weekes, supra. OCGA § 9-11-9.1 (d) provides:

If a plaintiff files an affidavit which is allegedly defective, and the defendant to whom it pertains alleges, with specificity, by motion to dismiss filed contemporaneously with its initial responsive pleading, that said affidavit is defective, the plaintiff’s complaint is subject to dismissal for failure to state a claim, except that the plaintiff may cure the alleged defect by amendment pursuant to Code Section 9-11-15 within 30 days of service of the motion alleging that the affidavit is defective. The trial court may, in the exercise of its discretion, extend the time for filing said amendment or response to the motion, or both, as it shall determine justice requires.

Decided October 24, 2000.

Oliver, Maner & Gray, William P. Franklin, Jr., Patricia T. Paul, for appellant (case no. A00A1188).

Trial courts may consider affidavits which are not filed or served within the time limits contemplated by the statutes, and it is not necessary to note the exercise of discretion on the record. Liberty Nat. Life Ins. Co. v. Houk; see also Washington v. Ga. Baptist Med. Center, rev’d on other grounds, Porquez v. Washington. OCGA § 9-11-9.1 (d) expressly allows the trial court, in its discretion, to extend the time for filing amendments to defective affidavits. In its order on defendants’ motions to dismiss/motions for summary judgment, the trial court expressly considered Dr. Janho’s subsequent affidavit in finding the initial affidavit sufficient for purposes of OCGA § 9-11-9.1. The timeliness of the filing of the subsequent affidavit was not addressed in its order, but the trial court was nevertheless authorized to consider an untimely filed affidavit. We have previously noted that “the intent behind OCGA § 9-11-9.1 [is] to thwart the filing of frivolous lawsuits.” Harris, supra at 666-667. The trial court’s decision to consider the subsequent affidavit did not rim counter to this intent and was within the trial court’s traditional and statutorily expressed powers, and there is no basis here to question the exercise of its discretion. The order upholding the sufficiency of the affidavit is affirmed.

Case No. A00A1189

In its cross-appeal, Candler Hospital challenges the court order denying its motion to dismiss. This is the same order considered above, and Candler Hospital raises the same issues with regard to the adequacy of Dr. Janho’s affidavit that are raised by Dr. Kropp. Accordingly, and for the reasons stated above with respect to Case No. A00A1188, we affirm the denial of Candler Hospital’s motion to dismiss.

Judgments affirmed.

Eldridge and Barnes, JJ, concur.

Brennan & Wasden, Wiley A. Wasden III, Elizabeth A. White, for appellant (case no. A00A1189).

Savage & Turner, Brent J. Savage, Ivanna M. Livingstone, C. Dorian Britt, Harris ODell, Jr., for appellees.

       Vanessa Brown, as next friend and natural mother of Elicia Brown and Elijah Brown, was added later as a party plaintiff.

        Pyle v. City of Cedartown, 240 Ga. App. 445, 446 (524 SE2d 7) (1999).

        Harris v. Murray, 233 Ga. App. 661, 664 (3) (504 SE2d 736) (1998).

        Weekes v. Nationwide Gen. Ins. Co., 232 Ga. App. 144, 146 (1) (500 SE2d 620) (1998).

       The record indicates that Dr. Kropp served his motion to dismiss by mail. However, even adding an additional three days to Roberts’ time to respond, as allowed by OCGA § 9-11-6 (e), the subsequent affidavit was not filed within the 30-day statutory cure period.

        Liberty Nat. Life Ins. Co. v. Houk, 248 Ga. 111, 112 (1) (281 SE2d 583) (1981).

        Washington v. Ga. Baptist Med. Center, 223 Ga. App. 762, 764 (1) (478 SE2d 892) (1996).

        Porquez v. Washington, 268 Ga. 649 (492 SE2d 665) (1997).


text:
    A00A1533.
    In the Interest of K. D. J., a child.
    (540 SE2d 682)
   Phipps, Judge.

The State filed a delinquency petition alleging that K. D. J., age fourteen, had engaged in eight delinquent acts. After an adjudicatory hearing, the juvenile court found K. D. J. delinquent for carrying a concealed weapon, carrying a pistol without a license, possessing a firearm, aggravated assault, and burglary. The court entered detailed findings, noting a multitude of other delinquent acts that K. D. J. had committed previously, including: drug violations, fleeing or attempting to elude police, criminal damage to property in the second degree, driving without a license, reckless driving, and carrying a concealed weapon. K. D. J. contests the admission of certain evidence and challenges the sufficiency of the evidence relating only to the aggravated assault and the burglary. After review of these issues, we affirm.

On appeal, we view all the evidence in the light most favorable to support the findings and judgment of the juvenile court. When so viewed, the evidence established that while ten-year-old T. C. was riding his bicycle on New Year’s Day 1999, he encountered K. D. J. sitting on a car. When T. C. stopped, K. D. J. revealed a gun and threatened to shoot T. C. unless T. C. took him home and showed him the location of his mother’s “stuff.” Later, K. D. J. threatened to shoot T. C. and his whole family. When threatened yet another time, T. C. let K. D. J. into his house. T. C. testified that once inside, K. D. J. warned him that he would “shoot me in my kneecap if I didn’t show him where my mama’s stuff [was].” T. C.’s mother testified that on January 1, after discovering that two pellet guns, one .32 caliber derringer, and certain coins were missing from her home, she contacted police. She voiced her certainty that the guns had been taken on that day.

In response to her 911 call, Officer Scott Priestly began an investigation. The following day, January 2, T. C.’s mother again contacted police after her son told her that K. D. J. had again threatened to shoot him, this time for calling the police the previous day. Priestly searched the general area for K. D. J., without success. But after T. C.’s mother called again on January 2 to report that K. D. J. was firing a pistol in the vicinity of her apartment, Priestly returned with another police officer. As K. D. J. attempted to flee down a back stairwell, the other officer intercepted him. Priestly confiscated a .38 caliber revolver concealed inside K. D. J.’s coat pocket.

1. K. D. J. contends that the trial court erred in relying upon the testimony of T. C., an incompetent minor, whose testimony he claims was rife with inconsistencies, incoherent, and lacked any independent corroborating evidence.

Objections to evidence must be made at the time the evidence is offered; otherwise, any issue as to admissibility is waived. At the hearing, K. D. J. posed no objection to T. C.’s testifying. “Objections not raised at trial cannot be raised for the first time on appeal.” Therefore, any issue as to T. C.’s competency is not properly before this court.

2. K. D. J. asserts that the trial court improperly allowed T. C.’s mother to express conclusions about facts for which she lacked an independent basis. He argues that since she had no personal knowledge as to who may have entered her home during her absence, her testimony had no probative value.

While on direct examination, T. C.’s mother was asked, “[h]ow do you know that [K. D. J. came to your home]?” As she began responding, “[b]ecause he came and told us that K. D. J. had just showed him a gun in his coat pocket and told him to —” defense counsel interposed a hearsay objection. No ruling was elicited from the court, and the prosecutor immediately pursued a different line of questioning. Later, however, on cross-examination, this exchange transpired:

DEFENSE COUNSEL: You’re saying no one was in your home except for [K. D. J.]?
MOTHER: Yes.
DEFENSE COUNSEL: How did [K. D. J.] get in the house?
MOTHER: Because he showed up with the gun.
DEFENSE COUNSEL: How do you know that?
MOTHER: That’s when he came and told me.
DEFENSE COUNSEL: So your son told you. So you weren’t home, is that what you’re saying?
MOTHER: No. I was down the street.

Regardless of whether the mother’s response on direct was inadmissible hearsay, the comments now challenged were remarks elicited by questions propounded during cross-examination. A defendant cannot induce a purported error by his own conduct, “ ‘sit silently hoping for a favorable verdict and obtain a new trial when that tactic fails.’ ” Induced error does not furnish a basis for reversal.

3. K. D. J. asserts that the trial court erred in allowing the testimony of Officer Priestly which he claims was inadmissible hearsay. We disagree. The testimony of an arresting officer about the legal investigation and the circumstances surrounding an arrest is authorized as original evidence under OCGA § 24-3-2. When an investigating officer’s statement explains the events leading up to and surrounding an arrest, such evidence is being offered for a permissible purpose and is admissible.

While testifying, Priestly chronicled the specific events immediately preceding the apprehension and arrest of K. D. J. including the fact he had confiscated a .38 revolver from K. D. J. after the youth had attempted to elude capture. Priestly described his own investigation and unsuccessful search for K. D. J. No error occurred in the admission of this testimony.

4. K. D. J. contends that the evidence was insufficient to support an adjudication of delinquency as to the aggravated assault. He claims that the State failed to prove the commission of an act of aggravated assault and that, at most, T. C. was merely shown an unloaded gun.

In considering a challenge to the sufficiency of the evidence supporting an adjudication of delinquency, we construe the evidence and every inference from the evidence in favor of the juvenile court’s adjudication. Here, the delinquency petition alleged that on or about January 2, 1999, K. D. J. made “an assault upon the person of [T. C.] with [a] .38 caliber pistol, a deadly weapon, by threatening to shoot the said victim.”

The victim, T. C., identified K. D. J. as his assailant. T. C. testified that K. D. J. had repeatedly threatened to shoot him, on New Year’s Day and again on January 2. T. C. testified that he saw the gun in K. D. J.’s coat pocket and heard the click of its trigger. T. C. described the gun brandished by K. D. J. as being “all black and had a brown handle.” On January 2, the day K. D. J. had threatened to kill T. C. because of police involvement, K. D. J. was apprehended outside of T. C.’s apartment. When arrested, K. D. J. was armed with a .38 pistol, a deadly weapon. Priestly described the gun that he removed from K. D. J.’s coat pocket as “a black .38 caliber 2 inch revolver with a brown wooden handle,” a description corresponding to the victim’s. This evidence was sufficient to support an adjudication of delinquency for aggravated assault.

K. D. J. also claims that no evidence proved that T. C. was ever in reasonable apprehension of immediately receiving a violent injury. The state of mind of the victim of an assault is a question of fact, which may be established by indirect or circumstantial evidence. Whether this element of the crime of aggravated assault has been properly proven is a matter for determination by the factfinder, here, the juvenile court. Although T. C. never explicitly recited the phrase that he was “in reasonable fear of receiving an immediate bodily injury,” the juvenile court could have so found based upon T. C.’s testimony that K. D. J. had threatened to kill or maim him, the repeated 911 calls from T. C.’s worried mother, T. C.’s demeanor while testifying about the threats, and the other evidence adduced at the hearing, including the fact that officers apprehended K. D. J. armed with a .38 caliber handgun shortly after shots had been fired outside T. C.’s home.

5. K. D. J. also claims that the evidence was insufficient to support an adjudication of delinquency as to the burglary charge. We disagree.

T. C.’s mother denied giving permission for K. D. J. to enter her apartment or to take her property. She testified that the missing items had disappeared on January 1, the same day that she learned that K. D. J. had forced his way inside. T. C. testified that K. D. J. had threatened to shoot him unless he let him inside the apartment and showed him the whereabouts of his mother’s “stuff.” This evidence was sufficient, within the meaning of Jackson v. Virginia, to show that K. D. J. entered the dwelling house of another with the intent to commit a theft therein.

Decided October 24, 2000.

Ann N. Garner, for appellant.

Paul L. Howard, Jr., District Attorney, Lynn K. Armstrong, David E. Langford, Bettieanne C. Hart, Elizabeth A. Baker, Assistant District Attorneys, for appellee.

Judgment affirmed.

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

       The juvenile court dismissed the counts of terroristic threats, obstruction, and possession of a firearm during the commission of a crime. The court later conducted the required hearing for a disposition under the designated felony act, formerly OCGA § 15-11-37 (a) (2) (B) (ii).

        In the Interest ofD. T. C., 226 Ga. App. 364, 368 (4) (487 SE2d 21) (1997) (statutory definitions differentiate between “crimes” and “delinquent acts”).

        In the Interest of C. T., 197 Ga. App. 300, 301 (2) (398 SE2d 286) (1990).

        Anthony v. State, 236 Ga. App. 257, 259 (2) (511 SE2d 612) (1999); Brewer v. State, 219 Ga. App. 16, 18 (3) (463 SE2d 906) (1995).

       (Punctuation omitted.) Jacobson v. State, 201 Ga. App. 749, 751 (2) (b) (412 SE2d 859) (1991); Fields v. State, 194 Ga. App. 149, 150 (2) (390 SE2d 71) (1990).

        Keasler v. State, 165 Ga. App. 561 (1) (301 SE2d 915) (1983).

        Price v. State, 222 Ga. App. 655, 656 (1) (475 SE2d 692) (1996); see Sams v. State, 239 Ga. App. 715, 717 (3) (521 SE2d 848) (1999).

       See White v. State, 180 Ga. App. 185, 186 (3) (348 SE2d 728) (1986).

        Aaron v. State, 203 Ga. App. 658, 659 (1) (418 SE2d 66) (1992).

        Ward v. State, 193 Ga. App. 137, 138-139 (2) (387 SE2d 150) (1989).

        In the Interest of R. L. W., 225 Ga. App. 253, 254 (2) (483 SE2d 361) (1997).

       The applicable essential elements of aggravated assault are: (1) the commission of an assault as defined in OCGA § 16-5-20 and (2) that it was aggravated by use of a deadly weapon.

       See King v. State, 213 Ga. App. 268, 270 (444 SE2d 381) (1994); see also In the Interest of J. K. R., 211 Ga. App. 776, 778 (2) (440 SE2d 524) (1994).

        Williams v. State, 208 Ga. App. 12, 13 (430 SE2d 157) (1993); McGee v. State, 165 Ga. App. 423, 425 (3) (299 SE2d 573) (1983).

       See McKinney v. State, 218 Ga. App. 633, 635 (2) (463 SE2d 136) (1995).

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Igle v. State, 223 Ga. App. 498, 500 (3) (478 SE2d 622) (1996); see OCGA § 16-7-1 (a).


text:
    A00A1567.
    WEAVER v. THE STATE.
    (540 SE2d 687)
   Blackburn, Presiding Judge.

Following a jury trial, Damon Lee Weaver appeals his conviction for two counts of armed robbery, contending that the State improperly placed his character in issue by submitting inappropriate similar transaction evidence. Specifically, Weaver argues that: (1) the trial court improperly admitted similar transaction evidence in violation of Uniform Superior Court Rule 31.3, and (2) his attorney rendered ineffective assistance of counsel by failing to object to the similar transaction evidence or to ask for a limiting instruction once it was placed in evidence. For the reasons set forth below, we affirm.

1. In the light most favorable to the verdict, the record shows that Weaver and a compatriot, Courtney Dubose, entered an Amoco station and robbed both the store and its attendant. Dubose, who was wearing a ski mask, brandished a gun during the robbery, and Weaver, who was wearing a stocking cap and a red scarf to conceal his face, emptied the cash register and removed change from some plastic rolls of quarters. Weaver discarded the plastic tube on the floor of the Amoco, and, after it was retrieved by the police, a fingerprint analysis uncovered Weaver’s thumbprint on the wrapper. After initially denying any involvement, Weaver admitted that he participated in the robbery, but he contended that Dubose forced him to do so.

Shortly after his arrest, Weaver was interviewed by Detective McEntyre. Portions of this audiotaped interview were played for the jury during the trial. Specifically, Weaver takes issue with the following statement made by Detective McEntyre during the interview:

Well, let me tell you why I charged you with this robbery. We had a robbery [at the Amoco station], and this was one of a number of robberies that we had, by the way, that looked like was probably the same dudes. And we had a robbery there, and one of [the] robbers went around the counter and was taking — you know them little . . . tubes they put money in to put down in drop safes. . . . On that tube we found a fingerprint, and that fingerprint. . . came up a match to one of your thumbs.

(Emphasis supplied.) Weaver contends that Detective McEntyre’s comment regarding a “number of robberies” constituted similar transaction evidence which impermissibly placed his character in evidence. We disagree.

A review of the entire audiotaped interview shows that Detective McEntyre was referring to Dubose, not Weaver, as the perpetrator of the “number of robberies.” At a later point in the interview, after Weaver implicated Dubose in the Amoco robbery, Detective McEntyre explained: ‘Well, [Dubose] did a bunch of robberies. He did a bunch of robberies, I believe.” To the contrary, however, Detective McEntyre made no statements that Weaver was involved in these other robberies. Accordingly, Detective McEntyre’s testimony, taken as a whole, shows that the statement which Weaver complains about was not, in fact, similar transaction evidence. Therefore, Weaver’s arguments on appeal are meritless.

Moreover, even if we were to find that Detective McEntyre’s statement constituted similar transaction evidence, the outcome herein would remain the same. “[T]he erroneous admission of similar transaction evidence may be harmless if there is such overwhelming evidence of the defendant’s guilt that it is highly probable that the error did not contribute to the guilty verdict.” Moore v. State. In this case, the evidence against Weaver was indeed overwhelming. Weaver admitted that he took part in the robbery, the Amoco attendant testified that Weaver actively participated without duress or coercion, and Weaver’s fingerprints were found on discarded coin wrappers at the scene of the crime. Weaver’s convictions must stand.

2. Weaver also contends that his trial counsel rendered ineffective assistance of counsel by (1) failing to object to the audiotaped statement described above as inappropriate similar transaction evidence and, in the alternative, (2) not asking for a limiting instruction once this alleged similar transaction evidence was admitted. As we have found in the prior Division that the audiotaped statement did not constitute similar transaction evidence, Weaver’s contentions with regard to his counsel’s performance are moot.

Decided October 24, 2000.

David C. Butler, for appellant.

Patrick H. Head, District Attorney, David M. Hilts, Maria B. Golick, Assistant District Attorneys, for appellee.

Judgment affirmed.

Eldridge and Barnes, JJ., concur.

        Moore v. State, 242 Ga. App. 249, 250 (1) (a) (529 SE2d 381) (2000).