author: Johnson, Chief Judge.

text:
    A00A0174.
    In the Interest of S. B., a child.
    (528 SE2d 278)
   Johnson, Chief Judge.

The mother of S. B. appeals from two juvenile court orders: one finding S. B. deprived and one finding reunification inappropriate. We find no error and affirm the decisions of the juvenile court.

On appeal, we view the evidence in a light most favorable to the juvenile court’s order and determine whether a rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights should have been terminated; we do not weigh the evidence and must defer to the trial judge as the factfinder.

The decision to terminate parental rights involves a two-step process. First, the juvenile court must determine whether there is clear and convincing evidence of parental misconduct or inability, as defined in OCGA § 15-11-81 (b). Parental misconduct is found when the child is deprived; the cause of the deprivation is lack of proper parental care or control; the cause of the deprivation is likely to continue or will not likely be remedied and the continued deprivation will cause or is likely to cause serious harm to the child. Second, if the juvenile court finds clear and convincing evidence of parental misconduct or inability, it must consider whether termination of parental rights is in the best interest of the child, considering the child’s physical, mental, emotional, and moral condition and needs, including the need for a secure, stable home.

Viewing the evidence in favor of the juvenile court’s findings, the record shows that the Athens-Clarke County Department of Family & Children Services (the “Department”) received custody of 16-month-old S. B. on June 12, 1998. The Department’s complaint alleged parental abuse resulted in the death of S. B.’s one-month-old sister, K. B., about one day earlier and stated that S. B. was at a high risk of physical harm due to the nature of K. B.’s death.

At the deprivation hearing, several expert medical witnesses testified about the nature, extent and causation of K. B.’s injuries and death. The children’s pediatrician testified that K. B.’s medical condition required the use of an apnea monitor at all times but that the parents failed to use it approximately 80 percent of the time. He also testified that although he had prescribed medication for K. B.’s reflux and aspiration, the mother had failed to have the prescription filled for some time. According to the pediatrician, he began suspecting child abuse after treating K. B. on three separate occasions for a nose injury, for bruises on her back, and for a knee injury. He also treated K. B. for rectal bleeding which he concluded, based on the severity of the bleeding, was caused by trauma.

A neonatologist at St. Mary’s Hospital testified that he examined K. B. on June 10 or 11, 1998, and observed that she was comatose, unresponsive and had swelling on her face and right side of her head. He also noted bleeding from puncture wounds on her lower extremities, a lump in the left side of her collarbone, bruises on her forehead and bruises on her lower extremities. X-rays revealed a fractured skull and broken collarbone. While the parents claimed the father had rolled over and slept on top of K. B., the neonatologist testified that K. B.’s fractured skull and broken collarbone could not have occurred in the manner described by the parents or during attempts to resuscitate the child and that the injuries were the result of possible abuse.

Another pediatrician and associate professor of pediatrics and critical care at the Medical College of Georgia testified that the bruising pattern and injuries he observed on the day of K. B.’s death were consistent with physical trauma inflicted on K. B. and that the physical findings were inconsistent with the explanation given by the child’s parents. According to this witness, the cause of K. B.’s injuries was child abuse. The witness stated that based on his experience, S. B. was also in danger until the perpetrator of K. B.’s injuries could be positively identified and removed.

The deputy chief medical examiner for the Georgia Bureau of Investigation testified that he had conducted 8,000 to 10,000 medical investigations, including 1,904 autopsies. His autopsy on K. B. revealed a forceful grasping and severe shaking of the child. He testified that a one-month-old child could not move or fall on its own and receive 'these types of injuries and could not be rolled on and receive these types of injuries. The doctor opined that K. B.’s injuries occurred due to massive blunt force that could only be nonaccidental. He ruled out the possibility of accidental injury by untrained hands performing cardiopulmonary resuscitation or by someone attempting to revive the child by shaking her. There was further testimony that a deep hematoma in K. B.’s rectal tissues strongly suggested sexual abuse.

Throughout the deprivation hearings, S. B.’s mother was present but refused to testify, citing her Fifth Amendment privilege against self-incrimination. Her ex-husband testified that during their marriage they had two other children, that she did not want custody of those children and failed to appear at the court hearing to contest custody and that she had visited with the children only three or four times in the past two years. The children were seven months old and nineteen months old at the time of the divorce in 1994.

A family friend testified regarding the mother’s sporadic employment history, history of domestic violence and attempt to influence the friend’s testimony. According to the friend, the mother told her that she had been physically abused by her husband, and the friend observed signs of the abuse. Moreover, the mother told her that she was worried about her husband’s behavior toward K. B. According to the mother, the husband would take K. B. into the bedroom and not allow her into the room even though she could hear K. B. crying. Before the hearing, the mother asked the friend not to mention anything about her husband taking K. B. into the bedroom and closing the door.

A police detective testified that she investigated the death of K. B. and that though there was no evidence that the mother was the perpetrator of K. B.’s injuries, her failure and refusal to provide a statement to the police about the facts surrounding K. B.’s death could also make her a suspect. The detective testified that the police had no evidence indicating that the mother did anything to protect K. B. from being injured.

The juvenile court ruled that S. B. was deprived and that reunification services were inappropriate.

1. The mother first contends that the juvenile court erred in finding that S. B. was deprived. OCGA § 15-11-2 (8) (A) defines a deprived child as a child who is “without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health or morals.” The juvenile court found S. B. deprived because the mother (a) was not financially independent; (b) moved in with her former guardian and relied on him for assistance with food, necessities and transportation; (c) told a friend numerous times about instances of family violence and events between her husband and K. B. and (d) failed to keep K. B. hooked up to her apnea monitor as instructed by her doctor. The mother does not dispute these findings but contends that these findings are legally insufficient to find S. B. deprived or to find that the mother is the cause of the deprivation. We find sufficient evidence of deprivation and sufficient evidence that the deprivation resulted from the mother’s conduct.

In addition to the facts noted by the juvenile court, the record shows that the mother refused to testify at the deprivation hearing when called as a witness by the Department. Instead, she invoked her Fifth Amendment privilege against self-incrimination. While the mother asserts that she had no part in K. B.’s death, the Supreme Court has held that the invocation of the privilege against self-incrimination in such cases is

an implied admission that a truthful answer would tend to prove that the witness had committed the act. The administration of justice and the search for truth demand [] that an inference may be drawn that witness’ testimony would be unfavorable to [her] in a civil action in which the privilege is invoked to protect [herself]. This is particularly true in a child custody contest heard by a trial judge with broad discretion when, the inference corroborates other proof of alleged illicit conduct between the parties which affects the welfare and interests of minor children.

Evidence that the explanation provided by the mother and father regarding K. B.’s death is completely inconsistent with the findings of the medical examiner and two other treating physicians, coupled with the mother’s refusal to give the police a statement during the investigation and her refusal to testify at the deprivation hearing, allows the inference that the mother was, in fact, involved in the unexplained, intentional death of S. B.’s sibling.

Moreover, even if the mother did not directly contribute to K. B.’s death, the evidence is clear and convincing that the father was abusing K. B. and that the mother suspected the father was abusing her. In fact, she told her friend about her husband’s actions and then asked her friend not to mention their conversation at the deprivation hearing. The mother’s passivity in response to this tragedy, as well as her attempts to conceal her husband’s conduct, renders her culpable as well. We agree with the trial court’s conclusion that there is clear and convincing evidence that S. B. is deprived and that her deprivation originated in significant part from the mother.

2. Having found that S. B. is deprived and that such deprivation is caused by her mother, the next factor to be considered is whether the deprivation would likely continue in the mother’s care. According to the juvenile court, “ [continuation in the home would be contrary to the welfare of the child, that reasonable efforts have been made to prevent having the child removed from the home and to make it possible for the child to return to [her] home.” The mother contends that this finding is inconsistent with the juvenile court’s statement that S. B. should remain with her mother.

The mother misconstrues the juvenile court’s statement. During the deprivation hearing the juvenile court stated that it wanted a report from the Department before making a decision on whether to place S. B. with the mother’s former guardian, with whom the mother was living. The juvenile court was hoping to place S. B. with the former guardian and, consequently, keep her with her mother. However, the Department’s subsequent home study of the former guardian indicated that he was not an appropriate placement resource. This home study could not be conducted until some time after the deprivation hearing because the mother would not speak or work with Department officials.

It is well established that in addition to present parental misconduct or inability, evidence of past conduct may be considered in determining whether the deprivation would be likely to continue. Here, the evidence strongly supports the juvenile court’s finding that S. B.’s deprivation will likely continue if she is placed in her mother’s care. The mother has a sporadic work history, and while she was employed at the time of the deprivation hearing, there was no evidence of any substantial income or of any plans to sustain a substantial income. She is financially dependent on her former guardian for housing, food, necessities and transportation. Moreover, there is strong evidence that the mother may have contributed to K. B.’s death through her passivity and evidence that she lacked involvement with her two other young children, who have remained in the custody of her ex-husband. This evidence supports a finding that the deprivation is likely to continue if S. B. remains in her mother’s care.

3. In her final enumeration of error the mother contends that the juvenile court erred in finding that reunification efforts were not appropriate in this case. Following the juvenile court’s order finding deprivation, the Department filed a written report concluding that reunification with the mother was not appropriate due to substantial evidence that S. B.’s sibling was injured or killed as a result of the mother’s abuse or neglect. The juvenile court conducted a hearing and entered an order concluding that there was clear and convincing evidence that reunification services were not appropriate in the case. While the mother’s attorney was present, the mother was not present at the hearing.

It is clear from the juvenile court’s order that it relied on evidence presented at the hearing; however, the mother failed to include a transcript of the hearing conducted on this matter in the record on appeal. Accordingly, we must presume that the hearing was conducted in a regular and proper manner and that the evidence supported the trial court’s ruling. The burden was on the mother to produce a transcript of the allegedly erroneous matter, and without a transcript we must conclude that the trial court did not abuse its discretion in finding that reunification services were inappropriate.

Decided January 18, 2000 —

Reconsideration denied February 2, 2000.

Vicki E. Carter, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Garcia & Powell, Tony D. Coy, John C. Shelton, for appellee.

Judgment affirmed.

McMurray, P. J., and Phipps, J., concur.

        In the Interest of D. L. N., 234 Ga. App. 123, 125 (2) (506 SE2d 403) (1998).

       OCGA § 15-11-81 (b) (4) (A).

       OCGA § 15-11-81 (a); see In the Interest of B. D., 236 Ga. App. 119 (511 SE2d 229) (1999).

       (Citations and punctuation omitted.) Simpson v. Simpson, 233 Ga. 17, 21 (209 SE2d 611) (1974).

       See In the Interest of C. J. V., 236 Ga. App. 770, 776 (513 SE2d 513) (1999).

       Id.

       See Gaskins v. Fowler, 171 Ga. App. 681, 682 (2) (320 SE2d 890) (1984).

       See Edwards v. State, 271 Ga. 3, 4 (2) (514 SE2d 833) (1999); Morris v. State, 220 Ga. App. 633, 635-636 (3) (469 SE2d 848) (1996); In re S. D. S., 166 Ga. App. 344, 346 (4) (304 SE2d 85) (1983).


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A00A0324.
    GARRARD v. THE STATE.
    (528 SE2d 273)
   McMurray, Presiding Judge.

Defendant Joseph R. Garrard was indicted on July 31, 1992, by the Upson County grand jury for two violations of the Georgia Racketeer Influenced & Corrupt Organizations (“RICO”) Act, OCGA § 16-14-1 et seq. The indictment alleged defendant engaged in an enterprise involving a pattern of racketeering activity consisting of theft by taking, false statements, and forgery arising out of the sale of timberland. On August 11, 1993, more than a year later, a Newton County grand jury returned its indictment of the defendant in the case sub judice (the “Newton County indictment”), again indicting defendant for violation of the RICO Act in connection with the timberland sales underlying the Upson County indictment. On June 19, 1995, a jury found defendant guilty of one* of the RICO violations upon which the defendant had been indicted in Upson County. The Upson County trial court granted defendant’s motion for new trial on April 23, 1998, and the retrial is currently pending in Upson County. On pretrial direct appeal, see Patterson v. State, 248 Ga. 875, 877 (287 SE2d 7), defendant contends that the trial court erred in denying his double jeopardy plea in bar, arguing the applicability of OCGA § 16-1-7 (b) (barring successive prosecution) and § 16-1-8 (b) (barring prosecution if the accused was formerly prosecuted), and the denial of his constitutional right to a speedy trial. Held:

Pointing to OCGA § 16-1-7 (b), defendant argues that the Newton County indictment should be dismissed in that it arises from the same conduct upon which the Upson County RICO charges had been based and that the State’s attorney responsible for prosecuting the Upson County indictment knew or should have known of all RICO-related violations alleged against defendant at that time but failed to prosecute them. We disagree.

The procedural aspect of double jeopardy is set forth in OCGA § 16-1-7 (b), which prohibits successive prosecutions if several crimes arising from the same conduct are known to the prosecuting attorney at the time of commencing the prosecution and are within the jurisdiction of a single court. Blackwell v. State, 230 Ga. App. 611, 612 (2) (a) (496 SE2d 922) (1998).

Turner v. State, 238 Ga. App. 438 (518 SE2d 923).

It is undisputed in the record that the predicate acts supporting the RICO violation alleged by the Newton County indictment were not alleged by the Upson County indictment. There is otherwise no evidence that the Newton County RICO prosecution arose from the same conduct supporting the Upson County RICO charges against defendant. In effect, while the complained-of charges are similar, each requires proof of different facts. Consequently, the trial court did not err in failing to dismiss the indictment in the case sub judice under OCGA § 16-1-7 (b). Loden v. State, 199 Ga. App. 683, 688 (4) (406 SE2d 103); see also McCannon v. State, 252 Ga. 515, 518 (315 SE2d 413). In light of the foregoing, we need not analyze defendant’s OCGA § 16-1-7 (b) argument as to actual knowledge by the Upson County prosecutor of other offenses arising from the same conduct. See Turner v. State, 238 Ga. App. at 439, n. 1, supra.

Neither did the trial court err in failing to dismiss the Newton County indictment under OCGA § 16-1-8 (b) as barred by former prosecution in Upson County. The Upson County trial court’s grant of defendant’s motion for new trial set aside defendant’s conviction without adjudging the defendant not guilty or finding that the evidence did not authorize the verdict, foreclosing any such double jeopardy claim. OCGA § 16-1-8 (d) (2) (prosecution not barred under OCGA § 16-1-8 where, among other things, “Subsequent proceedings resulted in the . . . setting aside ... of the conviction, unless the accused was thereby adjudged not guilty or unless there was a finding that the evidence did not authorize the verdict”); see Hooper v. State, 164 Ga. App. 49-50 (1) (296 SE2d 243). Moreover, the pendency of the Upson County indictment provides no basis upon which defendant’s plea in bar may lie as to the Newton County indictment in this case. Hobbs v. State, 229 Ga. 556, 557 (2) (192 SE2d 903) (pendency of former indictment for same offense no ground for plea in bar notwithstanding indictment and plea thereon). Under these circumstances, the prosecution against defendant in the case sub judice is not barred by the prosecution against him in Upson County.

Decided January 18, 2000 —

Reconsideration denied February 2, 2000

Virgil L. Brown & Associates, Virgil L. Brown, Bentley C. Adams III, Larkin M. Lee, for appellant.

Thurbert E. Baker, Attorney General, Michael E. Hobbs, Counsel to Attorney General, Wilson, Morton & Downs, Robert G. Morton, Patrick D. Deering, for appellee.

Further, defendant argues that the instant prosecution is “barred” for denial of his constitutional right to a speedy trial. Because defendant has failed to support this enumeration of error with appropriate argument and citation to the record, it is deemed abandoned. Court of Appeals Rule 27 (c) (2), (3) (i); see Hunter v. State, 201 Ga. App. 9 (2) (410 SE2d 204); see also Herndon v. State, 229 Ga. App. 457 (2) (494 SE2d 262) (“[court will not cull the record on behalf of a party in search of error”).

Judgment affirmed.

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

       The jury did so upon finding the defendant guilty of two predicate acts, theft by taking and false statements and writings.

       Defendant filed a notice of appeal of this ruling on June 2, 1998. However, the record on appeal has not yet been forwarded to this court.


author: Smith, Judge.

text:
    A99A1624.
    MAUK v. THE STATE.
    (529 SE2d 197)
   Smith, Judge.

Having been indicted for the offenses of kidnapping, rape, and two counts of aggravated sodomy, Lynn George Mauk was convicted of the lesser offenses of false imprisonment and sodomy. His motion for new trial was denied, and he appeals. In Mauk’s sole enumeration of error, he contends that his conviction for sodomy must be reversed in light of the decision of the Supreme Court of Georgia in Powell v. State, 270 Ga. 327 (510 SE2d 18) (1998). Because we find that Powell is not applicable to this case, we affirm the judgment below.

In Powell, the Supreme Court found that

OCGA § 16-6-2, insofar as it criminalizes the performance of private, unforced, non-commercial acts of sexual intimacy between persons legally able to consent, manifestly infringes upon a constitutional provision which guarantees to the citizens of Georgia the right of privacy.

(Citation and punctuation omitted.) Id. at 336.

Mauk argues that “the record establishes” that the sodomy in this case was consensual and subject to the right of privacy. In fact, the record “establishes” no such thing. The victim testified clearly that the act was done against her will. She testified that Mauk forced her to leave his truck at knifepoint and tied her hands behind her back before biting her nipples, sodomizing her with a stick, and forcing her to perform oral sex. Powell, supra.

But even if the act was consensual, as urged by Mauk, Powell is inapplicable. The conduct at issue in Powell took place in the privacy of the defendant’s home. Powell, supra. Here, the conduct for which Mauk was convicted took place outdoors in a wooded area adjacent to a public road. The conduct could easily be seen from the road. In fact, the incident came to light when a passerby, who had just dropped his wife off at work, went by in his truck and observed Mauk and the victim struggling. This was not a private place within the contemplation of Powell. A private place is a place “ ‘where one is entitled reasonably to expect to be safe from casual or hostile intrusion or surveillance.’ ” Quintrell v. State, 231 Ga. App. 268, 269-270 (1) (499 SE2d 117) (1998) (full concurrence as to holding cited).

[A]n individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home. This rule is true to the conception of the right to privacy embodied in the Fourth Amendment. Open fields do not provide the setting for those intimate activities that the Amendment is intended to shelter from government interference or surveillance. There is no societal interest in protecting the privacy of those activities . . . that occur in open fields. Oliver [a United States], 466 U. S. [170, 178-179 (104 SC 1735, 80 LE2d 214) (1984)]. Moreover, the Supreme Court observed in Oliver, supra at p. 180, fn. 11: An open field need be neither open nor a field as those terms are used in common speech. For example, a thickly wooded area nonetheless may be an open field as that term is used in construing the Fourth Amendment.

(Citations and punctuation omitted.) Thomas v. State, 203 Ga. App. 529, 533-534 (2) (417 SE2d 353) (1992) (physical precedent only). See also Gravley v. State, 181 Ga. App. 400, 402-403 (352 SE2d 589) (1986).

Even if the jury found by its verdict that the State did not prove that the sodomy was by force and against the victim’s will, the evidence authorized the jury to find that the act of sodomy took place in a public place. The verdict is not inconsistent with such a finding. It is therefore not within the ambit of Powell.

Decided February 2, 2000

Garrett & Gilliard, Michael C. Garrett, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Miller, Judge.

text:
    A99A1637.
    HERNDON v. AJAYI.
    (532 SE2d 108)
   Miller, Judge.

If a physician fails to inform a patient that as a result of a medical procedure a stent was left in him and fails to call the patient when the patient does not keep an after-care appointment to remove the stent, do the physician’s actions fall into the category of professional negligence or the category of ordinary negligence? We conclude that these actions fall into the category of professional negligence, and we hold that plaintiff’s failure to submit appropriate expert testimony to rebut defendant-physician’s expert affidavit justified summary judgment in favor of defendant.

In November 1994, Dr. Rex Ajayi treated Ronald Herndon to remove a large renal stone. The size of the stone required that Dr. Ajayi implant a stent inside Herndon’s left ureter. Herndon then underwent shockwave lithotripsy to crush the stone. The stent remained in place after the procedure. Herndon began experiencing weight loss, blood in his urine, and intense pain. In April 1995, Herndon sought help from another physician, who discovered and removed the stent.

Herndon sued Dr. Ajayi for negligence, claiming the physician deviated from the proper standard of medical care by allowing the stent to remain in place for five months. Dr. Ajayi moved for summary judgment, submitting his own affidavit that his treatment of Herndon’s renal stone called for the implant and that he further ordered a follow-up appointment during which he planned to remove the stent. Dr. Ajayi testified that Herndon failed to keep the appointment and failed to reschedule it. Referencing his expertise, Dr. Ajayi concluded that at all times during his treatment of Herndon, he exercised that degree of care, skill, and diligence generally employed by the medical profession in Georgia.

Herndon countered with his own affidavit that he was never informed that there was a stent left in his body which had to be subsequently removed. He testified that he did not know of the follow-up appointment and that no one contacted him to inquire as to why he failed to keep the appointment. Herndon also submitted an affidavit from a physician who opined that Dr. Ajayi had deviated from proper standards of medical care. The trial court found the affidavit of Herndon’s expert insufficient to rebut Dr. Ajayi’s medical testimony and granted summary judgment to Dr. Ajayi.

1. On appeal, Herndon does not argue or enumerate as error that the trial court erred in finding his expert’s affidavit insufficient, and therefore we need not address whether the trial court was correct in this regard. Nevertheless, we note that Herndon’s expert based his opinion on medical records that were not attached to the affidavit nor otherwise made a part of the record. As such, the affidavit was deficient and lacked probative value.

2. Georgia law is clear that in an action for medical malpractice the defendant-physician’s affidavit that his care met the appropriate standard of care entitles him to summary judgment if that opinion is not countered by the opinion of another expert. Seeking to distinguish his case, Herndon argues that he does not complain of the medical procedure or professional services rendered but rather complains that Dr. Ajayi was negligent in not informing him of the significance of keeping the follow-up appointment and in failing to contact him afterwards. Characterizing his claim as ordinary negligence rather than medical malpractice, Herndon contends that his affidavit testimony alone sufficed to oppose summary judgment.

We disagree with Herndon’s characterization of the alleged misconduct. Whether an act or omission sounds in simple negligence or medical malpractice depends on whether the conduct, even if supervisory or administrative, involved a medical judgment. Because determining and providing adequate care following a stent implant and shockwave lithotripsy involve “decisions which normally require the evaluation of the medical condition of a particular patient and, therefore, the application of professional knowledge, skill, and experience,” Herndon’s claim is an action for medical malpractice. As Herndon failed to oppose Dr. Ajayi’s affidavit by appropriate expert testimony, summary judgment was proper.

Decided February 2, 2000.

Farkas & Ledford, Leonard Farkas, for appellant.

Watson, Spence, Lowe & Chambless, Thomas S. Chambless, Dawn G. Benson, for appellee.

3. Herndon mentions in his appellate brief that no expert testimony is required where the professional negligence is clear and palpable, but he does not argue that the negligence here was clear and palpable. In addition to the vagueness of Herndon’s approach, we do not address the merits of this contention because the record, as transmitted to this Court, does not show that this argument was raised in the trial court. “Absent a showing that [Herndon] presented this argument to the trial court, we cannot reach it.”

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

       See State v. Kaylor, 234 Ga. App. 495 (507 SE2d 233) (1998).

       See OCGA § 9-11-56 (e); Hailey v. Blalock, 209 Ga. App. 345, 347 (2) (433 SE2d 337) (1993); Augustine v. Frame, 206 Ga. App. 348, 349 (1) (425 SE2d 296) (1992); Nettles v. Laws, 172 Ga. App. 241, 242 (322 SE2d 546) (1984).

        Payne v. Golden, 245 Ga. 784 (267 SE2d 211) (1980); Augustine, supra, 206 Ga. App. at 350 (1); Hall v. Okehi, 194 Ga. App. 721, 723 (2) (391 SE2d 787) (1990).

        See Dent v. Mem. Hosp. of Adel, 270 Ga. 316, 318 (509 SE2d 908) (1998) (ordinary negligence need not be shown by expert testimony); Hillhaven Rehabilitation &c. v. Patterson, 195 Ga. App. 70, 71-72 (2) (392 SE2d 557) (1990).

        Gen. Hosp. of Humana v. Bentley, 184 Ga. App. 489, 490-491 (361 SE2d 718) (1987).

        Dent, supra, 270 Ga. at 318.

        See Augustine, supra, 206 Ga. App. at 350 (1).

       See Bilt Rite of Augusta v. Gardner, 221 Ga. App. 817 (472 SE2d 709) (1996) (professional negligence that is clear and palpable needs no expert testimony); see also Pope v. Dept. of Human Resources, 209 Ga. App. 835, 839 (2) (434 SE2d 731) (1993); Hailey, supra, 209 Ga. App. at 348 (3).

        See Atlanta Gas Light Co. v. Ga. Pub. Svc. Comm., 212 Ga. App. 575, 577 (1) (442 SE2d 860) (1994).

       (Citations and punctuation omitted.) Peavy v. Goodroe, 237 Ga. App. 36, 37 (1) (514 SE2d 699) (1999).


author: Ruffin, Judge.

text:
    A99A1648.
    BLAYLOCK v. THE STATE.
    (529 SE2d 203)
   Ruffin, Judge.

Jeffrey Blaylock was convicted of selling cocaine. He appeals, contending that the trial court erroneously allowed the State to present evidence that a crack cocaine pipe was found on his person at the time of his arrest. Because such evidence was admissible, we affirm.

Todd Henderson, a narcotics officer with the Cobb County Police Department, testified that he was working undercover with a confidential informant on March 6, 1997, when Blaylock approached his car on a bicycle and asked him what he needed. Henderson said that he needed “a twenty,” and handed Blaylock a $20 bill. Blaylock then gave Henderson a piece of crack cocaine. After Henderson and the informant left the scene, Henderson contacted other officers, who arrested Blaylock. When he was arrested, Blaylock was carrying a metal tube wrapped with duct tape, which Henderson and another officer testified was commonly used to smoke crack cocaine.

Blaylock denied that he was the person who sold the cocaine to Henderson. He claimed that a man came up to him outside a liquor store and said that he had just sold something to an undercover officer. This man asked Blaylock to hold his bike and then went into the store. When he was questioned at trial about the crack pipe, Blaylock stated that “I didn’t realize it was in my pocket. I just put them pants on and it was in my pocket. I borrowed some pants that morning from a guy.” He then admitted that it was his pipe, that he used it to smoke crack, and that it had been found in his jacket pocket.

Blaylock contends that because he was not charged with possession of a crack pipe, evidence regarding the pipe was irrelevant and constituted inadmissible character evidence. This contention is without merit. Our Supreme Court has held that “all the circumstances connected with [a defendant’s] arrest [are considered] proper evidence to be submitted to the jury to be weighed by [it] for what they are worth.” Applying this rule, the Supreme Court held in State v. Luke that in a prosecution for burglary, evidence that a pistol and a bottle of pills were found on the defendant at the time of his arrest was admissible. The Supreme Court recently reaffirmed this rule in Miller v. State, where the police found marijuana in Miller’s pocket when they arrested him for committing a burglary in which the homeowner died of a heart attack. Miller was charged with felony murder, burglary, and misdemeanor possession of marijuana. Applying the rule that “[e]vidence of the circumstances of a defendant’s arrest is admissible in the trial of the charge for which he was arrested,” the Supreme Court held that severance of the felony and misdemeanor marijuana charges was not required because the marijuana would have been admissible in the trial of the felonies.

This Court, in applying the rule, has held that

[a]rticles found in the control of the defendant at the time or near the time of arrest are admissible as circumstances connected with the arrest of the defendant. Surrounding circumstances constituting part of the res gestae may always be shown to the jury along with the principal fact, and their admissibility is within the discretion of the trial court. All circumstances surrounding an arrest are admissible for whatever value the jury desires to place on them.

Apart from the mere fact that it was discovered in connection with Blaylock’s arrest, evidence of the pipe was relevant to the issues involved in the trial. In Kirk v. State, we held that evidence that a crack pipe was found in the defendant’s car was admissible to show the defendant’s motive for committing an armed robbery — “i.e., a need for money to buy crack.” 8In Jones v. State, where the defendant was charged with possession of cocaine with intent to distribute, we held that urinalysis results showing the presence of cocaine in the. defendant’s system were “admissible as part of the res gestae and as circumstantial evidence that he was involved in drug activity.” In so holding, we noted that

[t]he state is entitled to present evidence of the entire res gestae of the crime. Even though a defendant is not charged with every crime committed during a criminal transaction, every aspect of it relevant to the crime charged may be presented at trial. This is true even if the defendant’s character is incidentally placed in issue.

Evidence regarding the crack pipe was relevant to show that Blaylock was involved in drug activity at the time of his arrest and was particularly material in light of his denial that he had anything to do with the drug transaction at issue. Accordingly, the trial court did not err in allowing evidence regarding the pipe.

Decided February 2, 2000.

Frederick M. Scherma, for appellant.

Patrick H. Head, District Attorney, Debra H. Bernes, Irvan A. Pearlberg, Assistant District Attorneys, for appellee.

Judgment affirmed.

Andrews, P. J, and Ellington, J., concur.

       Blaylock filed a motion in limine to exclude such evidence because he was not charged with possession of a crack pipe but did not specifically assert that it improperly placed his character into issue. At one point during his colloquy with the trial court, Blaylock’s attorney appeared to concede that the pipe would be admissible in certain circumstances, although the court did not interpret the attorney’s comment as an abandonment of the motion. Rather, the court ruled that the evidence was admissible as a circumstance surrounding the arrest. Because of our ruling below, we need not consider whether Blaylock’s objection was specific enough to preserve the character issue for appeal or whether the objection was waived.

       (Punctuation omitted.) State v. Luke, 232 Ga. 815, 816 (209 SE2d 165) (1974). See also Bixby v. State, 234 Ga. 812, 813-814 (1) (218 SE2d 609) (1975); Clements v. State, 226 Ga. 66 (1) (172 SE2d 600) (1970).

        State v. Luke, supra.

       270 Ga. 741, 743-744 (3) (512 SE2d 272) (1999).

       Id. at 744 (3).

       (Citations and punctuation omitted.) Kirk v. State, 210 Ga. App. 440, 443 (1) (436 SE2d 553) (1993). See also Fuqua v. State, 183 Ga. App. 414, 419 (1) (c) (359 SE2d 165) (1987).

        Kirk v. State, supra.

       207 Ga. App. 46, 47 (1) (427 SE2d 40) (1993).

       (Citation and punctuation omitted.) Id.

       In Chisholm v. State, 231 Ga. App. 835, 841 (7) (500 SE2d 14) (1998), cited by Blaylock, we held that the trial court erred in allowing evidence of a knife found on Chisholm when he was arrested shortly after robbing a convenience store. We noted that Chisholm was not charged with any crime involving use of the knife and held that the knife was not relevant or material to any issue in the trial. Id. However, Chisholm did not discuss the many cases in which the Supreme Court and this Court have held that all circumstances surrounding a defendant’s arrest are admissible. Chisholm appears to be in conflict with these cases, particularly the Supreme Court’s subsequent decision in Miller that marijuana found on the defendant at the time of his arrest would be admissible in the defendant’s trial for felony murder and burglary. Miller, supra. Nevertheless, it is not necessary to overrule Chisholm in this case, as the crack pipe was relevant and admissible apart from the simple fact that it was discovered in connection with Blaylock’s arrest.


author: Andrews, Presiding Judge.

text:
    A99A1688.
    A99A1689.
    PILZER v. JONES et al. SCOTTISH RITE CHILDREN’S MEDICAL CENTER, INC. et al. v. JONES et al.
    (529 SE2d 205)
   Andrews, Presiding Judge.

April Jones and her mother, Betty Einney, sued Edith Pilzer, M.D., Scottish Rite Children’s Medical Center, Inc. (Scottish Rite), and Jill Bolton, R.N., for medical negligence claiming that the defendants negligently failed to monitor Jones’ condition and timely diagnose and treat her for serious complications stemming from a sigmoidoscopy procedure performed on Jones (a minor at the time) by Dr. Pilzer at Scottish Rite, where Bolton was employed as a nurse. On appeal from the judgment entered on a jury verdict in favor of Jones and Kinney, the defendants claim that the expert medical testimony failed to establish that the damages awarded were proximately caused by their negligence and that the plaintiffs’ counsel made improper and prejudicial statements during closing argument. Finding no basis for reversal, we affirm the judgment.

During the sigmoidoscopy, Dr. Pilzer inserted a flexible tube with a small camera at the tip through Jones’ rectum and into her intestine to aid in the continuing diagnosis of Jones’ inflammatory bowel disease. After the outpatient procedure, Jones was taken to a recovery area at Scottish Rite where she was monitored by nurse Bolton. While in the recovery area, Jones complained of severe bowel pain and, on orders from Dr. Pilzer, was given two intravenous doses of morphine to relieve the pain. After four hours in the recovery area, Jones was discharged to Kinney, who took her home at 3:20 p.m. During the night, Jones again began to experience severe bowel pain along with fever and vomiting. At 6:30 a.m. the next day, Kinney took Jones back to Scottish Rite, where Jones was diagnosed as having a perforation in her intestine which was allowing fecal matter to spill into her abdominal cavity.

Because of widespread contamination in Jones’ abdominal cavity caused by the spilled fecal material, Jones developed a near-fatal infection and other serious complications stemming from the infection. Upon her return to Scottish Rite, Jones’ condition required immediate surgery to repair the perforated intestine, and a colostomy was performed on Jones to allow her fecal material to be collected in a bag carried outside her body. As a result of the infection caused by the spilled fecal material, Jones was hospitalized for three months, was placed on a ventilator, and underwent numerous additional surgical procedures necessary to save her life. The various surgeries left Jones’ body permanently scarred and disfigured.

In a medical negligence action against Dr. Pilzer, nurse Bolton, and Scottish Rite (based on the action of its nurse employee), Jones and Kinney presented expert medical testimony that Dr. Pilzer perforated Jones’ intestine with the flexible tube inserted during the sigmoidoscopy procedure. There was no claim and no evidence that the perforation of the intestine during the procedure or the failure to discover the perforation during the procedure was negligent conduct by Dr. Pilzer. Rather, the expert medical testimony was that an undetected perforation of the intestine was a known risk of the procedure and that, because of this known risk, it was necessary to carefully monitor Jones after the procedure for any signs indicating that a perforation had occurred. The medical evidence showed that careful monitoring was necessary to detect any perforation so that immediate action could be taken to repair the perforation to prevent spillage of fecal material into the abdominal cavity and resulting infection.

Jones and Kinney presented expert medical testimony that, during the time Jones was in the recovery area at Scottish Rite after the procedure, she displayed signs — severe abdominal pain and elevated pulse and respiration rates — indicating that a perforation of the intestine had occurred during the procedure. During this time, Dr. Pilzer, by telephone, ordered two administrations of intravenous morphine to relieve the pain without examining Jones and failed to order x-rays or perform other diagnostic tests to discover the perforation, despite signs that one had occurred. Expert medical testimony was presented that these actions and omissions by Dr. Pilzer deviated from the appropriate standard of medical care and resulted in a negligent failure by Dr. Pilzer to timely diagnose that a perforation of the intestine had occurred during the procedure. Expert medical and nursing testimony also showed that, during the time Jones was in the recovery area, nurse Bolton failed to adequately take and chart Jones’ vital signs and communicate this information to Dr. Pilzer and that these omissions were a negligent deviation from the appropriate standards of nursing care.

The expert medical testimony showed that, as a result of negligent acts and omissions by Dr. Pilzer and nurse Bolton, Jones was discharged from Scottish Rite with a perforated intestine which allowed widespread spillage of fecal material into Jones’ abdominal cavity causing a near-fatal infection and the need for extended hospitalization and additional surgical procedures. In conjunction with the expert medical testimony, Jones and Kinney also presented evidence from a nonmedical expert who testified as to monetary sums necessary to formulate a life care plan for Jones as a result of the negligence. This expert gave extensive testimony as to damages resulting from the permanent nature of the colostomy performed on Jones when the intestinal perforation was repaired.

Although Dr. Pilzer and nurse Bolton presented opposing expert medical testimony that they complied with the appropriate standards of care and were not negligent, the jury rendered a special verdict in favor of Jones and Kinney as follows: (1) that Dr. Pilzer, nurse Bolton, and Scottish Rite (through its nurse employee) negligently failed to comply with the standards of care they were obligated to provide in treating Jones; (2) that acts or omissions of these defendants in failing to comply with the standards of care were a proximate cause of injury or damage suffered by Jones; (3) that Jones experienced pain and suffering which she would not have otherwise experienced as the proximate result of those negligent acts or omissions and that Jones be awarded $4,000,000 for pain and suffering experienced as a result of those negligent acts and omissions; (4) that Jones will have future medical expenses as the proximate result of those negligent acts and omissions and that Jones be awarded $346,689 for such expenses; (5) that Jones will be uninsurable in the future as the proximate result of those negligent acts and omissions and that Jones be awarded $150,000 for these damages; (6) that Jones will experience loss of income in the future as the proximate result of those negligent acts and omissions and that Jones be awarded $710,000 for these damages; and (7) that Kinney, who was the parent responsible for medical expenses incurred on behalf of her minor child, Jones, be compensated for past medical expenses incurred as a proximate result of those negligent acts and omissions in the amount of $484,978.08.

After judgment was entered on the verdict in favor of Jones and Kinney, the trial court granted the defendants’ motion for a new trial in which the defendants claimed: (1) that a large part of the damage awards was based on Jones’ claim that the permanent colostomy was caused by the defendants’ negligence, and (2) that the verdict in favor of the plaintiffs must be set aside because there was no expert medical testimony sufficient to establish that the permanent colostomy was the proximate result of the defendants’ negligence. The trial court then reconsidered its ruling, vacated the grant of a new trial, and entered a new order concluding that there was a lack of evidence in the record to support the damages awarded in sections (4), (5), and (6) of the verdict totaling $1,206,698. Based on this conclusion, the trial court denied the defendants’ motion for a new trial, provided that Jones accept a $1,206,698 reduction of the verdict in her favor pursuant to OCGA § 51-12-12 (b). Jones subsequently accepted the reduction of the verdict, and the defendants appealed from the amended judgment entered on the remaining portion of the verdict for $4,000,000 in pain and suffering awarded to Jones and $484,978.08 in past medical expenses awarded to Kinney.

1. Jones and Kinney presented expert medical testimony sufficient to establish that the negligence of Dr. Pfizer and nurse Bolton caused a delay in the diagnosis of the perforated intestine that in turn caused the near-fatal infection suffered by Jones and other damages stemming from the infection. We agree with the defendants’ contention, however, that the evidence failed to establish that the negligence of Dr. Pfizer and nurse Bolton caused Jones to undergo the colostomy or caused the colostomy to be permanent or irreversible.

Whether or not the colostomy (and its permanent nature) was the proximate result of the defendants’ negligent deviation from the appropriate standards of care was a medical question beyond the ken of laypersons. In such cases, causation issues can be resolved only by expert medical testimony, standing alone; in which case the testimony sufficient to establish a causal connection must at least show there was a reasonable probability that the negligence caused the injury. Cherokee County Hosp. Auth. v. Beaver, 179 Ga. App. 200, 204 (345 SE2d 904) (1986); Maurer v. Chyatte, 173 Ga. App. 343, 344-345 (326 SE2d 543) (1985); Nat. Dairy &c. Corp. v. Durham, 115 Ga. App. 420, 422 (154 SE2d 752) (1967); Abdul-Majeed v. Emory Univ. Hosp., 225 Ga. App. 608 (484 SE2d 257) (1997); Lewis v. Smith, 238 Ga. App. 6, 9 (517 SE2d 538) (1999). Testimony showing merely a possibility that the negligence caused the injury is not sufficient to establish the necessary causal connection. Renfroe v. Arrington, 238 Ga. App. 470, 473-475 (519 SE2d 3) (1999); Abdul-Majeed, 225 Ga. App. at 608-609; Lewis, 238 Ga. App. at 9-10.

Although the issue presented a close question, a careful reading of the record shows that expert medical testimony presented by Jones and Kinney established only the possibility that the negligence of Dr. Pilzer and nurse Bolton caused Jones to undergo a colostomy which is now irreversible. On the other hand, other expert medical testimony presented by the defendants and by Jones and Kinney established a reasonable probability that the colostomy was necessary as a result of Jones’ underlying inflammatory bowel disease in conjunction with the nonnegligent perforation of her intestine. The evidence also showed that Jones refused to undergo additional tests necessary to determine if the colostomy could be reversed.

Nevertheless, we do not agree with the defendants’ contention that the awards to Jones for pain and suffering and to Kinney for past medical expenses must be reversed because an undeterminable portion of these awards consists of colostomy-related damages which were not proximately caused by the defendants’ negligence. To the contrary, the trial court instructed the jury that damages could be awarded only for injuries that were proximately caused by the defendants’ negligence and that proximate cause must be proved by expert medical testimony establishing a reasonable probability that the negligence caused the injury. The jury applied this instruction when it determined in its special verdict that the defendants’ negligence was the proximate cause of Jones’ pain and suffering and the past medical expenses incurred by Kinney. We will presume that the jury also applied this instruction to determine on the evidence before it that the awards would include nothing for colostomy-related damages because the expert medical testimony failed to establish a reasonable probability that the defendants’ negligence caused those damages.

In the absence of clear evidence to the contrary, qualified jurors under oath are presumed to follow the instructions of the trial court. Star Gas &c. v. Robinson, 225 Ga. App. 594, 598 (484 SE2d 266) (1997), rev’d on other grounds, 269 Ga. 102 (498 SE2d 524) (1998). Moreover, “where a verdict has been returned by the jury and approved by the trial judge, the evidence is to be construed in the light most favorable to the prevailing party, and every presumption and inference [are] in favor of sustaining the verdict.” Perfect Image v. M & M Elec. Constructors, 191 Ga. App. 605, 607-608 (3) (382 SE2d 405) (1989). There is no indication that the jury was confused in its application of the trial court’s instructions to the applicable facts. The evidence was sufficient to support the jury’s award to Jones for pain and suffering and to Kinney for past medical expenses.

2. The defendants contend that the trial court erred by denying their motion for a mistrial made when counsel for Jones and Kinney made prejudicial statements to the jury during closing argument.

During closing argument, plaintiffs’ counsel stated:

There is compensation that needs to be done here. There’s compensation and adequate compensation that needs to be made. Well, do you just give her her bills. Do you give her just her bills be — you know, that’s got to be paid to somebody else. Do you just give her her bills and future medical expenses. Well, that has to be given to somebody else.

Defense counsel objected that these statements falsely implied that hundreds of thousands of dollars in medical expenses incurred by the plaintiffs had not been paid and that the plaintiffs were worried about being left destitute if they did not receive a large damage award. Defense counsel argued that these statements were false and highly prejudicial and required an instruction to the jury that the medical bills had in fact been paid by collateral sources. Defense counsel also moved in the alternative for a mistrial.

The trial court denied the motion for a mistrial and refused to instruct the jury that the medical bills had been paid by collateral sources. Instead, the trial court gave the jury the following curative instructions:

Ladies and gentlemen, during Mr. Cook’s closing remarks there was a reference made by him to any potential award you might make in this case with respect to the medical expenses incurred and to be incurred by the plaintiffs. If you understood those remarks to indicate that any such award, that is, for medical expenses would be paid to someone other than the plaintiff, I am instructing you to disregard those comments. Any award you make in this case for any element of the plaintiffs’ damages including medical expenses will be paid to the plaintiffs. It will be their property.

Although the statements made by plaintiffs’ counsel were clearly improper and prejudicial, and the trial court had available to it other appropriate sanctions, Warren v. Ballard, 266 Ga. 408, 410 (467 SE2d 891) (1996), we find no abuse of discretion in the trial court’s decision in this case to instruct the jury to disregard the statements and to give curative instructions without reference to payments made by collateral sources. Id.; Bennett v. Terrell, 224 Ga. App. 596, 597 (481 SE2d 583) (1997). The instructions given by the trial court were sufficient to cure the prejudice and ensure that the jury was not misled into rendering a sympathetic verdict not based on fact. The trial court did not err by denying the motion for a mistrial.

3. Dr. Pfizer claims that the trial court erroneously allowed the plaintiffs’ expert on Jones’ life care plan to testify without proper qualifications that Jones was uninsurable. This claim was rendered moot by the trial court’s reduction of the verdict eliminating damages related to this witness’ testimony.

Decided February 2, 2000

Browning & Tanksley, Henry D. Green, Jr., Hall, Booth, Smith & Slover, Rush S. Smith, Jr., Rebecca T. Christian, for appellant (case no. A99A1688)

Alston & Bird, Dow N. Kirkpatrick II, Elizabeth Bertschi, for appellants (case no. A99A1689).

Cook, Noell, Tolley, Bates & Michael, J. Vincent Cook, Minkin & Snyder, Robert E. Spears, Jr., for appellees.

Judgment affirmed.

Ellington, J., concurs. Ruffin, J., concurs in the judgment only.

       The separate appeals filed by Dr. Pilzer (Case No. A99A1688) and by Scottish Rite and nurse Bolton (Case No. A99A1689) are considered together in this opinion.


text:
    A99A1883.
    REESE v. THE STATE.
    (529 SE2d 196)
   Miller, Judge.

Indicted for burglary, William Reese entered a negotiated guilty plea and was sentenced to serve eight years. He subsequently moved to withdraw his guilty plea because he was taking psychotropic medication for schizophrenia at the time the plea was entered. Reese appeals the trial court’s denial of that motion. We affirm.

After sentence is pronounced, a valid guilty plea cannot thereafter be withdrawn except upon the sound legal discretion of the trial court. A ruling on a motion to withdraw a guilty plea will not be disturbed on appeal absent manifest abuse of that discretion. The question is whether Reese freely and voluntarily entered the plea with an understanding of (1) the charges against him and (2) the consequences of his plea.

Psychological evaluation revealed that Reese was taking Thorazine, Sinequan, and Cogentin for schizophrenia. He claimed that he lost consciousness during his plea hearing. Thorazine and Sinequan can cause hypotension, leading to light-headedness or even fainting. But the psychiatrist explained that if Reese did suffer a loss of consciousness, it would have been apparent to those present, and he concluded that Reese was competent to stand trial. Trial counsel testified that several hours prior to the hearing, Reese’s speech was slurred and “he didn’t seem like he was quite all there.” Reese informed counsel that, although the dosage on one of his medications was “very high[,] it did not affect him.” At the hearing, Reese “seemed to have cleared up quite a bit.”

Decided February 2, 2000.

Patricia F. Angelí, for appellant.

Robert E. Keller, District Attorney, Erman J. Tanjuatco, Clifford A. Sticker, Assistant District Attorneys, for appellee.

When asked at the plea hearing whether he was under the influence of medication, Reese responded affirmatively and further stated that he had been on the medication for eight years. In response to questioning by prosecuting counsel, Reese admitted that he understood what was taking place, that he understood the charges against him, and that he wished to plead guilty.

Because the record affirmatively shows that Reese was not incapacitated by the medications, evidence supported the trial court’s finding that the guilty plea was entered knowingly and voluntarily, and not as the product of a will overborne by the influence of psychotropics. Thus, there was no abuse of discretion in the trial court’s denial of Reese’s motion to withdraw his guilty plea.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

        State v. Germany, 246 Ga. 455, 456 (2) (271 SE2d 851) (1980); compare OCGA § 17-7-93 (b).

        Thornton v. State, 180 Ga. App. 274, 275 (349 SE2d 23) (1986).

        King v. State, 270 Ga. 367, 369 (1) (509 SE2d 32) (1998).

       See Mathis v. State, 199 Ga. App. 538, 539 (405 SE2d 528) (1991).

       Compare Weddington v. State, 191 Ga. App. 738, 740 (7) (382 SE2d 661) (1989) (waiver of constitutional right to remain silent and to presence of attorney not rendered involuntary or unknowing due to influence of cocaine).


text:
    A99A2106.
    BALDWIN v. THE STATE.
    (529 SE2d 201)
   Ruffin, Judge.

George Baldwin pled guilty to armed robbery. He appeals, contending that the trial court erred in conducting the guilty plea hearing and in denying his motion to withdraw the plea. For reasons discussed below, we affirm.

The indictment charged Baldwin with committing an armed robbery on September 17, 1998. At the time, Baldwin was on probation for another offense. On December 30,1998, the trial court held a probation revocation hearing. After hearing evidence regarding the armed robbery, the court revoked the balance of Baldwin’s probation, approximately 13 years.

A jury trial on the armed robbery charge was scheduled for January 13,1999. After the jury was impaneled, Baldwin entered a plea of guilty. The court then orally announced sentence as follows:

I have already revoked thirteen years, one month and six days in the prison system. The sentence of the Court is that you serve six months — six years, ten months and twenty-four days consecutive to the probation revocation, which will give you a twenty year sentence to serve. In addition to that the Court would sentence you to five years probation, which would be also consecutive to the twenty year sentence. And a condition of that probation is that you not come back into Gordon County or Bartow County. So you understand that the basis of this sentence it is a twenty-five year sentence, twenty years inside, with five years on probation. And a condition of your probation, of course, is that you not come back into this county. And a further condition of this probation is that you would have no contact, whatsoever, with . . . the victim in this matter.

On the same day, the court entered a written sentence, stating that Baldwin was sentenced to “11 years, 10 months, 24 days [in confinement]. . . . This is consecutive to his probation revocation hearing which consists of 13 years, 1 month, 6 days revoked.” The written sentence provided that “[u]pon service of 6 years, 10 months, 24 days consecutive to revocation,” the remaining five years of the sentence could be served on probation.

After the trial court entered its written sentence, the attorney general’s office informed the court that it considered the written sentence void because it did not require Baldwin to serve at least ten years in prison as required by OCGA § 17-10-6.1 (b). Apparently, the attorney general’s office interpreted the written sentence as imposing a prison term of six years, ten months, and twenty-four days, to begin running after the conclusion of Baldwin’s thirteen-year, one-month, and six-day probation revocation sentence, instead of interpreting the sentence to impose a twenty-year prison term running concurrently with the probation revocation sentence. Therefore, the attorney general’s office advised the Department of Corrections not to take Baldwin into its custody.

On May 12, 1999, the trial court held a hearing on Baldwin’s motion to withdraw his guilty plea and the State’s motion to resentence. Baldwin presented no evidence in support of his motion to withdraw his guilty plea, and the trial court denied the motion. With respect to the sentencing issue, the court stated that

[t]here’s no question in my mind that everybody in the courtroom understood just exactly what the sentence was going to be. As a matter of fact, I remember asking Mr. Baldwin did he understand that it was a twenty year sentence. ... I don’t agree with the attorney general’s office. . . . There was no question in anybody’s mind as to what the sentence was. And the idea that six years consecutive to a fourteen year probation revocation is not a twenty year sentence astounds me.

The court stated that it was going to resentence Baldwin to “a twenty year straight sentence,” to run concurrently with his probation revocation, with no additional probation. After the hearing, the trial court entered a written sentence providing that Baldwin was to serve 20 years in prison, to run concurrently with the probation revocation.

On appeal, Baldwin does not challenge the terms or validity of the amended sentence. Instead, he contends that the trial court committed errors in the initial guilty plea hearing and that he had an absolute right to withdraw his guilty plea.

Baldwin’s guilty plea was accepted and sentence originally entered on January 13,1999. He did not file a direct appeal within 30 days of his conviction and did not move to withdraw the guilty plea until May 12, 1999, after the term of court had expired. It is well established that, after the expiration of the term of court in which a guilty plea is entered and of the time for filing an appeal from the conviction, the only remedy available to a defendant for withdrawing the guilty plea is through habeas corpus proceedings. In Jarrett v. State, we held that this rule applies even if the original sentence is held to be void. In such a case, we held that “the trial court is only authorized ... to impose new and valid sentences,” and not to allow the defendant to withdraw his plea. In so holding, we relied upon Sherman v. State, which held that “a judgment of conviction will not be reversed and a new trial granted because of an error or irregularity in the manner of sentencing; the remedy is for the court to recall the defendant and sentence him as provided by law.”

Decided February 2, 2000.

Ledbetter, Little & Smith, Jesse L. Vaughn, for appellant.

T. Joseph Campbell, District Attorney, Lance T. McCoy, Assistant District Attorney, for appellee.

Because Baldwin failed to file a direct appeal or seek to withdraw his guilty plea until after the expiration of the term of court in which his plea was accepted, his challenge to the trial court’s acceptance of the plea and refusal to allow withdrawal of the plea must be raised through habeas corpus proceedings.

Judgment affirmed.

Andrews, P. J., and Ellington, J., concur.

       See Bryant v. State, 229 Ga. App. 534, 536 (1) (494 SE2d 353) (1997) (sentence void if it violates OCGA § 17-10-6.1 (b)).

       No written motions had been filed by Baldwin or the State, although they had apparently advised the trial court of their intentions.

       See OCGA § 15-6-3 (9) (B).

        Lewis v. State, 229 Ga. App. 827, 829 (1) (494 SE2d 678) (1997); Foskey v. State, 232 Ga. App. 303 (501 SE2d 856) (1998); Jarrett v. State, 217 Ga. App. 627, 628 (1) (458 SE2d 414) (1995).

       Id.; see also Lewis v. State, supra (“even a void sentence is subject to the same jurisdictional restraints”).

        Jarrett, supra.

       142 Ga. App. 691 (237 SE2d 5) (1977).

       (Punctuation omitted.) Id. at 692.

       See Caine v. State, 266 Ga. 421, 422 (467 SE2d 570) (1996).


text:
    A99A2165.
    MOORE v. THE STATE.
    (529 SE2d 210)
   Johnson, Chief Judge.

A jury found James Moore guilty of burglary and theft by taking a motor vehicle. He appeals from the convictions, raising eight enumerations of error. Because none of the enumerations has merit, we affirm his convictions.

1. Moore was charged with taking his co-worker’s truck without authority and burglarizing an office. He challenges the sufficiency of the evidence, claiming that it was wholly circumstantial and did not exclude every reasonable theory except that of his guilt.

On appeal, we view the evidence in a light most favorable to the verdict, and an appellant no longer enjoys a presumption of innocence. Boxer v. State, 237 Ga. App. 526, 527 (515 SE2d 668) (1999). This court determines the sufficiency of the evidence and does not weigh the evidence or determine witness credibility. Id. Conflicts in the evidence are for the jury to resolve. Id.

Viewed in a light most favorable to the verdict, the evidence shows that Moore worked at a car tune-up shop with David Buzbee. Buzbee’s car was not working, so his mother loaned him a truck to use. He had been driving the truck about two months, and he sometimes permitted his co-workers to use the truck to run work-related errands during work hours.

Moore quit his job at the car shop on Saturday, June 10. Buzbee gave Moore permission to use the truck that day to transport Moore’s 300-pound toolbox from the shop to Buzbee’s home, where Moore was staying temporarily. Buzbee told Moore to drive the truck straight to the house, which was about three miles away. After using the truck to move his toolbox, Moore parked the truck in Buzbee’s driveway. Moore left the keys in the truck, but Buzbee took the keys and put them inside the house.

Buzbee testified that he had not given Moore permission to drive the truck that night and, when he and his wife went to bed at 9:30 p.m., the truck was in the driveway. At about 10:00 that evening, two of Moore’s friends came by Buzbee’s home to take Moore out for drinks. Buzbee’s daughter testified that the truck was in the driveway at 11:00 or 11:30 p.m., when she left the house.

Moore’s friends returned to the Buzbee house around 2:00 a.m. to drop Moore off. The friends noticed that Buzbee’s truck was in the driveway. Moore had no keys to the house, and no one at Buzbee’s house would open the door for him. His friends left him outside and drove away.

At about 2:50 a.m., a police officer was dispatched to investigate a car accident. He arrived to find Buzbee’s truck, which Moore had been driving, on its side and Moore lying on the ground unconscious. The officer detected the smell of alcohol. The officer’s investigation and the statements of eyewitnesses revealed that the truck had been traveling at a high rate of speed when it changed lanes, struck a curb and crashed. No one else was in the truck when the accident occurred. The officer found inside the truck a briefcase with business cards bearing the name “Frank Woods,” a cash box, and a telephone. On the ground he found a .38 caliber revolver. The front of the truck had yellow paint on it, which Buzbee testified was not there before Moore took the truck that night. The officer charged Moore with driving while under the influence of alcohol, driving with a suspended license, making an improper lane change, and driving without proof of insurance.

Later that morning, police received a call that a dental laboratory owned by Frank Woods had been burglarized. The lab was located in the building behind the car shop where Moore worked and was about one and one-half miles from the scene of the accident. The door frame to the laboratory was bent, and there was a skid mark in front of the business’ yellow door. The door frame sustained damage at about two to three feet above the ground, which was the height of the truck’s bumper. Though the door was damaged, it had not been opened. A window to the laboratory had been broken out, and near it police found an object covered with “a greasy lube substance.” The same greasy substance was found on the broken window and inside the business. Among the items reported stolen from the business were Woods’ briefcase and business cards, a .38 caliber handgun, a telephone, and a cash box. At trial, Woods identified the items recovered by police at the accident scene as those stolen from his business.

Woods testified that Moore, whom he did not know, had come into the lab on Friday, June 9, and struck up a conversation, inviting Woods to bring his car to the repair shop for work. Woods locked up and left the lab at 8:30 p.m. The burglary occurred sometime between Friday night and Sunday morning.

The dental lab, the accident scene, the tune-up shop, and Buzbee’s home were all within 4.5 miles of each other. Moore had once told Buzbee that he heard that gold was stored in the dental lab. After the accident, Moore admitted to Buzbee’s wife that he took the truck that night, that he was sorry and that he wanted to pay for the damage to the truck.

Moore argues that this circumstantial evidence was insufficient to support the convictions. He says that since other people were allowed to use the truck, perhaps one of them took the truck and committed the burglary between 11:00 p.m. and 2:00 a.m., then placed the stolen property in the truck before Moore drove the truck. He also says the evidence does not show that he lacked permission to use the truck, since Buzbee was not its true owner and because Buzbee had previously given him and others permission to drive it. The evidence was sufficient to support the convictions.

To warrant a conviction based on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt but must exclude every other reasonable hypothesis save that of the guilt of the accused. Savage v. State, 229 Ga. App. 560, 563 (494 SE2d 359) (1997). The circumstantial evidence need not exclude every hypothesis of his guilt but only reasonable ones. Id. If the evidence meets this test, circumstantial evidence is as probative as direct evidence. Questions as to the reasonableness of hypotheses are generally to be decided by the jury which heard the evidence, and where the jury is authorized to find that the evidence was sufficient to exclude every reasonable hypothesis except that of guilt, this court will not disturb that finding unless the verdict of guilty is insupportable as a matter of law. Robbins v. State, 269 Ga. 500, 501 (1) (499 SE2d 323) (1998). The verdicts in this case were not insupportable as a matter of law.

A jury was authorized to reject Moore’s theory that someone else took the truck sometime after 11:00 p.m., used it to burglarize the dental lab, left the fruits of the burglary in the truck, and left the truck in Buzbee’s driveway. The jury may have found his hypothesis unreasonable, particularly in light of evidence that Moore was the person driving the truck shortly after 2:00 a.m., he was in the dental lab soliciting business for the car shop the day before he quit his job there, and he believed gold was stored in the lab.

The jury might also have reasonably rejected Moore’s hypothesis that he had permission to drive the truck, given testimony that Buzbee took the keys back earlier that day, people always asked permission before borrowing the truck, and Buzbee’s mother lived out of state. We note that Moore is not permitted to raise any question concerning ownership of the vehicle. See McIlhenny v. State, 172 Ga. App. 419, 420 (1) (323 SE2d 280) (1984). There was ample evidence from which any rational trier of fact could have found Moore guilty beyond a reasonable doubt of burglary and theft by taking a motor vehicle. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Belton v. State, 270 Ga. 671, 672 (1) (512 SE2d 614) (1999); Robbins, supra.

2. The standard for reviewing a denial of a motion for a directed verdict of acquittal is whether under the rule of Jackson v. Virginia, supra, the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense. Because the evidence was sufficient under the standard set forth in Jackson v. Virginia, Moore’s contention that the trial court erred in denying his motion for directed verdicts of acquittal as to the burglary and theft by taking a motor vehicle charges is without merit. See generally Miller v. State, 270 Ga. 741, 742 (1) (512 SE2d 272) (1999).

And inasmuch as Moore was acquitted on the theft by receiving charge, the issue of whether the trial court erred in denying his motion for directed verdict of acquittal as to that charge is moot. See Jones v. State, 233 Ga. App. 291, 292 (2) (503 SE2d 902) (1998).

3. Moore contends the trial court erred in allowing the state to question a police officer about traffic charges filed against Moore following the accident. He argues that the testimony impermissibly placed his character in issue. We disagree.

At trial, a police officer testified as to the circumstances existing at the time he arrived on the scene of the accident. The officer described what he observed upon his arrival, including the condition of the truck, the objects found in and around the truck, skid marks in the road, and Moore’s condition. He added that he charged Moore with driving under the influence of alcohol, driving with a suspended license, making an improper lane change, and driving without proof of insurance.

Acts and circumstances forming a part or continuation of the main transaction are admissible as res gestae, and all circumstances surrounding an arrest are admissible for whatever value the jury desires to place on them. See Humphrey v. State, 232 Ga. App. 97, 98 (501 SE2d 284) (1998); Stirrat v. State, 226 Ga. App. 350, 353 (2) (b) (486 SE2d 640) (1997); see also DeCastro v. State, 221 Ga. App. 83, 85 (1) (470 SE2d 748) (1996) (physical precedent only). Every aspect of the criminal transaction relevant to the crime charged may be presented at trial, even if the defendant’s character is incidentally placed in issue. Johnson v. State, 264 Ga. 456, 457 (1) (448 SE2d 177)

(1994) . That Moore was charged with having committed traffic offenses while driving the truck was part of the circumstances surrounding his arrest for burglary and theft by taking a motor vehicle; property taken in the burglary was recovered at the scene of the accident, and the accident involved the truck which was the subject of the theft by taking charge. There was no error. See generally Shields v. State, 203 Ga. App. 538, 539 (1) (417 SE2d 168) (1992); Barnes v. State, 163 Ga. App. 61 (1) (293 SE2d 717) (1982).

4. Moore complains that the trial court erroneously allowed an investigator with the police department to testify that the burglary and the accident were related. He asserts that the officer’s opinion regarding whether the burglary and accident were related went to the ultimate issues in the case and invaded the province of the jury. Moore failed to preserve this argument for appeal.

At trial, Moore made no objection when the officer gave detailed testimony about how, while investigating the burglary, he realized that the property stolen seemed to be the same property found at the scene of the accident he was investigating. Nor did Moore object when the investigator testified about the specific items found at the accident scene, how he initially thought they belonged to Moore, and how he discovered that they belonged to Woods, the burglary victim. Moore did not object until the state specifically asked the witness when he realized the burglary and the accident were related, which information the witness had already given without objection. Moore’s failure to object when the testimony was first introduced amounts to a waiver. See Grier v. State, 217 Ga. App. 409, 411 (2) (458 SE2d 139) (1995) ; Mable v. State, 197 Ga. App. 751, 752 (1) (399 SE2d 509) (1990). Moreover, whether the cases were related does not go to the ultimate issues in this case. The ultimate issues were whether Moore committed the burglary and whether he drove the truck without authority. There was no error. See generally Ludden v. State, 176 Ga. App. 109, 110-111 (2) (335 SE2d 428) (1985).

5. After Moore presented his defense, the prosecutor called Buzbee in rebuttal and asked him if his mother ever gave Moore permission to drive the truck. Moore objected on the ground that the testimony would be hearsay. The trial court ruled that the question called for hearsay and permitted the state to rephrase the question. After the state made several unsuccessful attempts to ask the question in an acceptable manner, the trial court remarked that she could ask the witness what his understanding with his mother was regarding the truck. The prosecutor then asked the question in a form similar to that posed by the trial court. Moore did not object at trial to the trial court’s suggestion. His failure to do so amounts to a waiver. See Porche v. State, 217 Ga. App. 325, 326 (2) (457 SE2d 578) (1995).

Decided February 2, 2000.

Roderick H. Martin, for appellant.

Patrick H. Head, District Attorney, Debra H. Bernes, Maria B. Golick, Assistant District Attorneys, for appellee.

In any event, it is the trial court’s right, and sometimes its duty, to question a witness in order to develop the truth of a case. Johnson v. State, 270 Ga. 234, 239 (6) (507 SE2d 737) (1998). The trial court did not abuse its discretion by suggesting an acceptable way to phrase a question so as to develop the truth in this case.

6. Moore argues that the trial court erred in allowing rebuttal witnesses for the state to testify regarding whether the dental laboratory’s owner authorized Moore to enter the business when it was closed and whether Buzbee’s mother authorized Moore to use the truck, when the defense did not raise these issues in its case-in-chief. Moore does not claim that the testimony was inadmissible, just that it was not proper rebuttal testimony.

Regardless of technical niceties as to what evidence should be offered in chief and what may be offered in rebuttal, this court will not reverse a trial court for admitting in evidence at any stage of the trial any testimony that is both relevant and competent.

(Punctuation omitted.) Sheffield v. State, 107 Ga. App. 610, 613 (9) (131 SE2d 76) (1963). Testimony regarding whether Woods authorized Moore to enter the dental lab and whether the mother authorized others to use the truck was competent and relevant to the burglary and theft by taking charges. Even if the testimony was not strictly in rebuttal, the trial court did not abuse its discretion in allowing the testimony. See Goodwin v. State, 222 Ga. App. 285, 287 (3) (474 SE2d 84) (1996). This enumeration presents no grounds for reversal.

Judgment affirmed.

McMurray, P. J, and Phipps, J., concur.


text:
    A00A0143.
    A00A0144.
    ACCOLADES APARTMENTS, L.P. v. FULTON COUNTY et al. INTERNAL REVENUE SERVICE v. FULTON COUNTY et al.
    (528 SE2d 268)
   McMurray, Presiding Judge.

Condemnor-appellee Fulton County brought its petition for condemnation against condemnee-appellant Accolades Apartments, L.P. (“Accolades”) in connection with certain real property Accolades owned located in Fulton County (“the Property”) which was necessary to a road construction project. During the course of the condemnation proceedings, appellees the Internal Revenue Service (“IRS”), the Georgia Department of Revenue (“Department of Revenue”), and Coyote Portfolio, LLC (“Coyote”), among others, filed claims and motions seeking disbursement of the proceeds of the condemnation upon a judgment and tax liens filed against the Property while it was owned by Accolades Apartments Joint Venture (“Accolades Joint Venture” or “the joint venture”), a predecessor in title to Accolades. Accolades responded to these motions, asserting that it was entitled to all the condemnation proceeds, such liens not having attached to the Property when in the hands of the joint venture. The liens against the Property arose from debts owed by Consolidated Equities Corporation (“CEC”), a joint venturer in Accolades Joint Venture and the entity from which the joint venture acquired the Property. On May 14, 1999, following a status conference at which all pending motions for disbursal were considered, the trial court ordered condemnation proceeds disbursed to the Department of Revenue and Coyote. In issuing its order, the trial court found that the “IRS waived its claim to any of the condemnation proceeds by failing to appear at a hearing for which it received proper notice.” On May 24, 1999, the trial court issued its final order and judgment entering judgment in the amount of $200,000 as just and adequate compensation for the Property and ordering the case closed upon payment of such sum to the Department of Revenue and Coyote. Accolades now appeals the trial court’s orders excluding it from the disbursal of the condemnation proceeds. In the companion appeal, the IRS appeals the trial court’s order finding that it waived its claim seeking disbursement of funds for its failure to appear at the trial court’s hearing on the disbursal claims. Inasmuch as these appeals arise out of the facts of a single case below, we have consolidated them for disposition on appeal. Held:

Case No. A00A0143

1. Accolades enumerates that the trial court erred in not ordering all the condemnation proceeds disbursed to it as the successor in title to the joint venture, as a partnership or joint venture whose property was protected from the creditors of its individual members. However, whether Accolades Joint Venture may be deemed a partnership or joint venture to which the law of partnership applies is here not the deep issue. Assuming, arguendo, the applicability of partnership law, the question is whether the deed by which CEC conveyed the Property to the joint venture was titled in a way denoting the presence of a partnership interest in accordance with such law. OCGA § 14-8-8 (d) (real property not in partnership name not deemied partnership property to the prejudice of nonpartner lacking actual knowledge to the contrary). “When title to real property is placed in the name of the partnership, the question of individuals shielding assets in secret partnerships is eliminated.” Morgan Guaranty Trust Co. &c. v. Alexander Equities, 246 Ga. 60, 61 (268 SE2d 660).

[F]or a partnership to protect its real property from judgment creditors of the individual partners, title to that property must be taken in the partnership name. . . . Deeds conveying land . . . without designating any partnership interest, subject each owner’s interest to levy and sale and [OCGA § 14-8-25 (b) (3)] is not applicable.

Id.; see also All Fla. Sand Unincorporated v. Lawler Constr. Co., 209 Ga. 720 (75 SE2d 559) (purchase of partnership property in the partnership name essential to protect interest of a partner in a partnership from levy and sale).

It is undisputed that CEC conveyed the Property to the joint venture by its name alone: Accolades Apartments Joint Venture. Wé conclude that this was insufficient to give notice of a partnership interest therein. “In Georgia, ‘a joint venture (is) not a distinct legal entity separate and apart from the parties composing it. . . .’ Boatman v. George Hyman Constr. Co., 157 Ga. App. 120, 123 (276 SE2d 272).” Watson/Winter Joint Venture v. Milledge, 224 Ga. App. 395, 397 (480 SE2d 389); accord Kissun v. Humana, Inc., 267 Ga. 419, 420 (479 SE2d 751):

The theory of joint venturers arises where two or more parties combine their property or labor, or both, in a joint undertaking for profit, with rights of mutual control (provided the arrangement does not establish a partnership), so as to render all joint venturers liable for the negligence of the other. [Cit.]

Id.; see also Bowman v. Fuller, 84 Ga. App. 421, 426 (1) (66 SE2d 249) (status as joint venture is generally a jury question). In light of the foregoing, this enumeration of error is without merit.

2. We need not address Accolades’ remaining enumeration of error in light of our disposition in Division 1.

Case No. A00A0144

3. In this case the IRS contends that the trial court abused its discretion in finding that the IRS “waived” its claim to the proceeds of the instant condemnation for the failure of the IRS’ counsel to appear at a pretrial status conference. The IRS argues that the trial court’s ruling was unduly harsh as tantamount to dismissal without prejudice under Uniform Superior Court Rule (“USCR”) 14. Alternatively, the IRS argues that the trial court’s ruling was impermissible as amounting to dismissal with prejudice contrary to OCGA § 9-11-41 (lack of prosecution) and USCR 14 (failure to appear). We disagree.

Though the trial court cited USCR 14 in finding that the IRS had waived any claim to the condemnation proceeds for the nonappearance of the IRS’ counsel at its status conference, the trial court took no action to dismiss the IRS’ claim with or without prejudice. Rather, upon finding that the IRS “receive [d] notice of the hearing and, as a result, was spurred to file its claim [,]” alluding to supporting facts of record, Chamlee v. Dept. of Transp., 182 Ga. App. 120, 122 (2) (354 SE2d 701) (“ ‘ “Findings of fact” ’ are insufficient when they merely state the court’s answers to the material issues in the case, and when they contain no facts based on the evidence supporting those answers. [Cit.]”), the trial court heard the motions to disburse the condemnation proceeds before it in accordance with notice to such effect given in its order setting status conference. In finding waiver with respect to the IRS’ claim, the trial court, in effect, entered default judgment against the IRS for its failure to prosecute. However, in any event, we conclude that the trial court was at liberty to proceed as it did.

OCGA § 9-11-41 (b) and [USCR] 14 both contain permissive language. Under either provision the Court may dismiss an action without prejudice if the plaintiff fails to appear at the call of the case. Neither provision, however, exhausts the options available to the trial court under its authority to control its own docket and regulate the business of the court. Scocca v. Wilt, 243 Ga. 2 (252 SE2d 401) (1979). The rule and the statute simply allow the court to dismiss the action and restrict [ ] the dismissal to one without prejudice. It goes without saying that the trial court may elect to continue the case and set it for trial on another date. Alternatively, the court may go forward with the trial of the case. . . . The judgment that is entered following such a trial is not a dismissal. It is a judgment like any other judgment that is subject to appeal, motion for new trial, or a motion to set aside under OCGA § 9-11-60.

Decided January 18, 2000 —

Reconsideration denied February 3, 2000

Paul, Hastings, Janofsky & Walker, John G. Parker, Joseph C. Sharp, for Accolades Apartments, L.R

Richard H. Deane, Jr., United States Attorney, James R. Schulz, Assistant United States Attorney, for the Internal Revenue Service.

Thurbert E. Baker, Attorney General, Daniel M. Formby, Deputy Attorney General, Warren R. Calvert, Senior Assistant Attorney General, Smith, Gambrell & Russell, Marcia M. Ernst, William R. Turner, for Fulton County et al.

(Emphasis in original and supplied.) Kraft, Inc. v. Abad, 262 Ga. 336-337 (417 SE2d 317). Further, whether the IRS’ counsel’s claim that he had not received notice of the trial court’s status conference was in the nature of post hoc rationalization or otherwise, we cannot say that the trial court’s finding as to notice of its hearing, to the contrary was clearly erroneous. Fuss v. State, 271 Ga. 319, 321 (2) (519 SE2d 446). Under these circumstances, we find that the trial court did not abuse its discretion in entering its judgment against the IRS in Case No. A00A0144.

Judgments affirmed.

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

       The trial court ordered disbursements in the amount of $99,795.53 and $20,414.07 in satisfaction of tax liens asserted by the Department of Revenue and a disbursement of $79,790.40 upon the judgment lien asserted by Coyote.

       The federal tax lien was $398,521.95. At the hearing of the trial court, all parties concurred such lien stood first in priority.


author: Ellington, Judge.

text:
    A98A1178.
    BURLESON v. THE STATE.
    (529 SE2d 228)
   Ellington, Judge.

Michael D. Burleson was convicted of armed robbery and possession of a hoax device and was sentenced under the first offender act to fifteen years to serve five for armed robbery and five years on probation to run concurrently for possession of a hoax device. The trial court thereafter voided its sentence for the armed robbery count and imposed a sentence of twenty years to serve ten. Burleson appealed to this Court, and we affirmed the convictions and sentences in Burleson v. State, 233 Ga. App. 769 (505 SE2d 515) (1998).

Decided February 3, 2000.

Robert J. Pinnero, for appellant.

John R. Parks, District Attorney, for appellee.

The Supreme Court granted certiorari and reversed our finding that a defendant convicted of one of the serious violent felonies contained in OCGA § 17-10-6.1 was not eligible for first offender treatment under OCGA § 42-8-60. Instead, the Supreme Court held, prior to the 1998 amendments to OCGA §§ 17-10-6.1 and 42-8-60 et seq., a defendant found guilty of a serious violent felony under OCGA § 17-10-6.1 was not precluded from requesting and obtaining first offender treatment. Fleming v. State, 271 Ga. 587 (523 SE2d 315) (1999). Accordingly, our ruling is vacated, and the judgment of the Supreme Court is made the judgment of this Court. The case is remanded to the trial court for a new sentencing hearing.

Sentence vacated and case remanded for resentencing.

Pope, P. J., and Ruffin, J., concur.


text:
    A99A1771.
    HUDSON v. THE STATE.
    (529 SE2d 218)
   Ruffin, Judge.

Roderick Hudson was convicted of one count of armed robbery, five counts of aggravated assault, and one count of possession of a firearm during the commission of a crime. He appeals, contesting the sufficiency of the evidence. He also contends that the trial court improperly questioned a witness and communicated with the jury in counsel’s absence. Because each of his contentions is without merit, we affirm.

1. On appeal of a criminal conviction, we construe the evidence in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. We do not weigh the evidence or determine the credibility of witnesses but only determine whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

On May 16, 1997, a man entered Old South Restaurant in Brunswick with a pistol. A customer, Charles Harris, started to say something to him, but the gunman pointed his pistol at Harris and told him to sit down. The gunman then pointed the pistol at two employees, Catherine Jones and Cathy Perra, and demanded all the money in the cash register. Jones handed the man approximately $140 in cash. Jones’ husband, Calford Jones, who owned the restaurant, approached the gunman, who pointed the gun at him and told him to back up. At some point during the robbery, the gunman pointed his pistol at another customer, Tonnie Shadron, and told him to sit still. After taking the money, the gunman fled from the restaurant, and Mr. Jones chased after him.

During the chase, the gunman ran into an alley. He then emerged from the alley, pointed his gun at Mr. Jones, and started to get into the passenger side of a red Buick convertible. At this point, Sylvia Willis pulled up in her car and asked Mr. Jones if she could help. Mr. Jones asked Willis to follow the Buick. The gunman then ran off, and the Buick drove away. Willis followed the gunman and saw him run through the woods behind a car wash and into an alley behind a liquor store. She saw the red Buick behind the liquor store and followed it to a house on Ross Road, where two individuals got out of the car and entered the house. Willis gave this information to the police on her cellular phone and remained at the house until the police arrived.

Officer Jim Kelly arrived at the scene along with other officers. Hudson’s brother, Rashawn Hudson, was standing in the yard. He told Kelly there was no one else in the house and gave him permission to search the house. Kelly entered the house with another officer and asked if anyone was there. After receiving no response, the officers began checking the rooms in the house. While searching, they heard noises coming from the attic. After a few minutes, the sheet rock in the ceiling began falling. The officers called for whoever was in the attic to come down, and after a few more minutes Hudson climbed down from the attic.

Officer Kelly and another officer then entered the attic to see if anyone else was hiding there. There was no one else in the attic, but Kelly found a Glock .40 caliber pistol and $144 in cash. The cash consisted of nine loose $1 bills, seventeen $5 bills, and fifty $1 bills bound with a wrapper. Hudson’s palm print was found on the wrapper.

After he was arrested, Hudson gave a tape-recorded statement to police in which he admitted that he robbed the restaurant. Several witnesses from the restaurant identified Hudson as the robber at trial. This evidence was more than sufficient to allow a rational trier of fact to conclude beyond a reasonable doubt that Hudson was guilty of the crimes charged.

2. Hudson contends that the trial judge’s questioning of a prosecution witness violated OCGA § 17-8-57 because it suggested the judge’s opinion of the case. However, because Hudson did not object to the judge’s questioning or move for a mistrial, he has not preserved this issue for appeal.

3. During a brief recess after the jury returned its verdict and was discharged, members of the jury apparently spoke with the judge about Hudson’s co-defendant, Rashawn Hudson, whom they had acquitted of armed robbery. After the recess and before the start of Hudson’s sentencing hearing, the judge told Rashawn Hudson that

the jury has found you not guilty in the case, but they wanted me to pass along a message to you. They are very concerned of the turn in which your life has taken. And had it been for a little bit more evidence, you would have been facing life in prison. And they wanted me to make sure that if you ever come back up here before me on another offense, that I remember this trial.

On appeal, Hudson contends that it was improper for the judge to have contact with the jurors in the absence of Hudson and his counsel. It is true that trial judges should not communicate with jurors during trial about matters relevant to the case except in the presence of the defendant and his counsel. But the purpose of this rule is clearly to prevent the jury from being prejudiced against the defendant. In this case, the jury had already found Hudson guilty and been discharged from service. Moreover, the jury’s communication with the judge did not concern Hudson, but his acquitted co-defendant. There is no indication that the communication in any way influenced the trial court’s sentencing of Hudson. “There is a presumption that a trial judge, acting as a public official, faithfully and lawfully performs the duties devolving upon him.” In the absence of any evidence to the contrary, we must presume that the trial judge acted properly in sentencing Hudson. Accordingly, this enumeration presents no basis for reversal.

Decided February 3, 2000.

Ronald E. Harrison II, for appellant.

Stephen D. Kelley, District Attorney, Margaret L. Knight, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews, P. J., and Ellington, J., concur.

       The jury found Hudson guilty of a second count of armed robbery, but the trial court, merged this with the first count. Hudson’s brother and co-defendant, Rashawn Hudson, was also charged with two counts of armed robbery but was acquitted on both counts.

        Taylor v. State, 235 Ga. App. 323, 324 (1) (509 SE2d 388) (1998).

       See Sims v. State, 266 Ga. 417, 418, n. 2 (467 SE2d 574) (1996) (objection based on violation of OCGA § 17-8-57 “is not reached on appeal unless a timely objection and/or motion for mistrial is made”); Driggers v. State, 244 Ga. 160, 162 (2) (259 SE2d 133) (1979). In this section of his brief, Hudson also mentions the trial court’s refusal to accept his offer to plead guilty during the middle of trial. To the extent Hudson is contending that the trial court erred in refusing to accept the plea offer, this contention is outside the scope of the enumeration and cannot be considered as a basis for reversal. See Scott v. State, 238 Ga. App. 258, 262 (4) (518 SE2d 468) (1999).

       See Collins v. State, 191 Ga. App. 289, 290 (381 SE2d 430) (1989).

       (Punctuation omitted.) Kelly v. State, 238 Ga. App. 691, 693 (1) (520 SE2d 32) (1999).

       See id.; Head v. State, 233 Ga. App. 655, 658 (3) (b) (504 SE2d 499) (1998).