author: Miller, Judge. Eldridge, Judge,

text:
    A01A0033.
    SMITH v. THE STATE.
    (552 SE2d 468)
   Miller, Judge.

A jury found Carl Keith Smith guilty of kidnapping, criminal attempt to commit robbery, burglary, possession of tools for the commission of a crime, and several traffic offenses including driving while license suspended, improper passing, reckless driving, speeding, and improper passing on the left. Due to his extensive criminal record, Smith garnered a recidivist sentence. Following the denial of his motion for new trial, Smith filed this appeal. Smith now claims that the trial court erred by failing to merge the four felony convictions, by admitting certain identification evidence, and by refusing to compel the State to turn over the 911 tape. He also alleges that he was deprived of effective assistance of counsel and that the State failed to prove the element of asportation for the offense of kidnapping. Finally, he contests the sufficiency of evidence as to his conviction for possessing tools for the commission of a crime. Having considered these issues and found them lacking in merit, we affirm.

When viewed in the light most favorable to the verdict, the evidence established that in mid-morning, a man came to the home of Jesse Hugh Jackson and his wife, Edna Jackson, to express interest in certain rental property. Although identifying himself as Tony Walker, he was, in fact, Carl Keith Smith. About two hours later, Smith returned to the Jacksons’ residence, interrupting their lunch. Mrs. Jackson recognized Smith as the “nice young man” with whom she had chatted earlier. Smith told her that he wanted to give her another telephone number. When she left to retrieve a note pad, Smith entered their home without permission. Once inside, Smith said, “I need money, go get your purse.” Smith warned, “don’t make me hurt — don’t make me use my gun.” After overcoming his initial shock at the sudden turn of events, Mr. Jackson, a retired farmer, began “hollering” at Smith “to get out of here,” and started swinging his walking cane, making repeated attempts to strike Smith. While blocking the intended blows with his hands, Smith backed out the door. When Mrs. Jackson went to the bedroom to retrieve her purse, she instead contacted 911. While Mrs. Jackson was communicating with the 911 dispatcher, Mr. Jackson reported that Smith had driven away in a beige or tan-colored Saturn.

After being attacked with the cane, Smith fled. Shortly thereafter, an off-duty sheriff’s deputy spotted a car matching the broadcast description of Smith and his vehicle. After driving erratically and committing multiple traffic violations while attempting to elude capture, Smith was eventually apprehended. Lieutenant Rodney Bennett noted a red, raised bump on Smith’s forehead. Detective Keith Whiteside described seeing “a welt or a knot on the front portion of his head.”

After being transported in separate police vehicles to the site of the traffic stop, Mr. Jackson and Mrs. Jackson each independently identified Smith as the perpetrator. These identifications occurred about 30 to 45 minutes from the time Smith left their home. In court, they also identified Smith as their attacker.

Detective David McNaughton inventoried the car that Smith was driving and found a dent puller, a flat blade screwdriver, and a lock cylinder that had been removed from a car. McNaughton testified that the dent puller is “used for pulling out locks on cars, to use to get in so they can do the ignition, steal cars.” He explained that by removing the lock cylinder, entry to the vehicle can be gained. He demonstrated the process to the jury by using the dent puller and the screwdriver. According to McNaughton, based on the tool marks on it, the lock cylinder found in the trunk had been removed in this way.

1. Smith contends that the trial court erred by failing to merge the counts for kidnapping, criminal attempt to commit robbery, burglary, and possession of tools for the commission of a crime. Smith claims that when the “actual evidence” test is applied, all the evidence is used up and these four counts merged. At the outset, “[t]he key question in determining whether a merger has occurred is whether the different offenses are proven with the same facts. For example, if one crime is complete before the other takes place, the two crimes do not merge. However, if the same facts are used to prove the different offenses, the different crimes merge.” The offenses at issue here did not merge. The crime of burglary was complete when Smith entered the Jacksons’ home without authority and with intent to commit a theft therein, regardless of whether he accomplished his apparent purpose. The offense of criminal attempt to commit robbery was complete when Smith performed an act constituting a substantial step toward the commission of that crime by directing Mrs. Jackson to get her purse and threatening to use a gun to force her compliance. The offense of kidnapping was complete when, without lawful authority, Smith held Mrs. Jackson against her will and forced her to move to the bedroom to retrieve her purse. Nor were the same facts used to prove that Smith was in possession of tools commonly used to commit theft.

2. Smith claims that the trial court erred by admitting the identification testimony because the identification procedure was impermissibly suggestive and resulted in a substantial likelihood of misidentification. He points out that when the Jacksons identified him at the showup, he was the sole person in handcuffs and was surrounded by uniformed officers.

Such on-the-scene showups have been found not to be impermissibly suggestive when they are necessary under the practicalities of the situation. The two separate one-on-one confrontations used here were vital to assisting an expeditious police investigation and in resolving possible doubts as to whether the correct individual was being detained. Both witnesses had ample opportunity to observe Smith during earlier conversations with him, and both identified him at trial. Since there was not a substantial likelihood of misidentification, the trial court properly denied the motion to suppress.

3. Smith contends that the trial court erred by refusing to compel the State to turn over the 911 tape to the defense. He asserts that the State violated the rules of discovery by failing to provide him with that tape which he claims would have been exculpatory within the meaning of Brady v. Maryland.

OCGA § 17-16-4 (a) (3) requires the State to timely allow “the defendant ... to inspect and copy . . . [audiotapes] . . . which are within the possession, custody, or control of the state or prosecution and are intended for use by the prosecuting attorney as evidence in the prosecution’s case-in-chief or rebuttal at the trial. . . .” Prior to trial, defense counsel complained that despite a specific demand for copies of the 911 transmission, the State provided only a copy of the outgoing dispatch that followed the 911 call. The prosecutor responded that he did not have a copy of the 911 tape and explained that he did not intend “to call anyone from 911 or anything of that nature.” The defense did not subsequently object or seek any relief whatsoever. Therefore, this issue was waived by Smith’s failure to elicit a ruling by the trial court.

4. Smith’s assertion that he received ineffective assistance of counsel at trial lacks merit. To establish an ineffectiveness claim, an appellant must show not only that his counsel’s performance was deficient but also that the deficiency prejudiced him. Because the failure to satisfy both requirements is fatal to an ineffectiveness claim, absent a showing of prejudice, no inquiry need be made into counsel’s alleged deficiencies.

(a) Smith claims that his counsel failed to force the State to turn over discoverable material, the 911 tape, and witness statements. But, prior to trial, the court granted a defense motion to exclude the only statement not given to the defense during discovery. As to the 911 tape, at the hearing on the motion for new trial, the court expressed its displeasure at the State’s failure to provide the 911 tape during discovery to the defense. The trial court, however, determined that tape was not a material piece of evidence in light of testimony at trial about the substance of the call and the sequence of events in response to that call. Whether a transcription of the 911 call or the audiotape itself could have assisted the defense is now speculative at best. The defense was provided a copy of the dispatch, a report compiled from the information reported to the 911 operator, and Smith was able to thoroughly cross-examine the Jacksons and the responding officers to probe for any ambiguities or discrepancies. Accordingly, even had the issue been preserved, Smith has not established the requisite deficiency and prejudice needed for reversal.

(b) Smith contends that his trial counsel failed to object to testimony about the contents of the 911 call. But part of the defense strategy was to suggest that Smith had been misidentified as the perpetrator, by focusing on purported deviations or inconsistencies in the initial descriptions provided by the Jacksons in contrast to information they later provided to investigators. Again, Smith has not established the requisite deficiency and prejudice to warrant reversal.

(c) Smith urges that his defense was impeded by his counsel’s failure to call Daryl Williams as an alibi witness. At trial, two alibi witnesses testified, one of whom is Smith’s brother. Both had criminal records. His brother vouched for Smith having been with him in the morning, and the other witness testified about the early afternoon. At the motion hearing, appellate counsel complained that Williams, who had been transported from a correctional facility and had waited to testify, was never called. Counsel claimed that Williams was the only person who could have testified about Smith’s whereabouts for both the morning and the afternoon. However, no testimony from Smith’s trial counsel was offered, and no proffer of Williams’ testimony was made. Therefore, Smith has not overcome the presumption that the decision not to call Williams to testify was a reasonable exercise of professional judgment. Since the trial court’s finding that Smith was not denied effective assistance of counsel was not clearly erroneous, it must be affirmed.

5. Smith contends that there was not sufficient evidence to prove the offense of kidnapping because the State failed to prove asportation, a required element of that crime.

A kidnapping conviction requires proof of an unlawful asportation of a person against his will. Pushing and shoving a victim from one room to another are sufficient. Compelling a victim to move from one room to another in response to a threatening command can constitute the necessary element of asportation. “The determinative factor with regard to the element of asportation is whether appellant even momentarily caused the victims, without lawful authority or warrant, through intimidation and coercion, to engage in actions (including moving from one place to another) against their wills.” Here, there is some evidence that through intimidation, Smith coerced Mrs. Jackson to move from one place to another against her will. Smith threatened her and ordered her to get her purse, saying, “don’t make me use my gun.” When asked whether she left the room of her own free will, Mrs. Jackson denied having done so. On cross-examination, when asked, “[d]id you see yourself as having an opportunity to go get help, and that’s why you went in the room,” she responded, “[h]e said go get your purse, and that’s where my purse was, but when I got to the door, I went to the phone.” When she left the kitchen, Mr. Jackson and Smith were embroiled in a struggle, and she could not be certain that her husband would gain control over the situation. Thus, Smith compelled her movement to the bedroom even though once there she managed to call 911 in lieu of retrieving her purse. The trial court did not err in denying the motion for directed verdict.

6. Smith contends that the evidence was insufficient to prove the count for possession of tools for the commission of a crime. He points out that his girlfriend, Cecile Louise Wood, owned the Saturn in which the tools were found.

On the day of the crimes, Smith left Wood at her workplace at about 8:00 a.m. then used the car. Several hours later, when Smith was apprehended, he had sole possession of the vehicle. A dent puller, the flat blade screwdriver, and a cylinder were found in the trunk at that time. No evidence suggested that these tools belonged to Wood or that she used them in her employment as a research specialist for a major bank. It is undisputed that Smith had control over the vehicle and had access to the trunk. Thus, Smith had at least joint constructive possession of the tools. From this evidence, a jury could conclude that Smith had the power to exercise dominion and control over the tools. A detective demonstrated how thieves use these tools to gain illegal entry into a vehicle to steal the car or its contents. This evidence was sufficient to establish the crime of possession of tools for commission of a crime.

Judgment affirmed.

Andrews, P. J., Johnson, P. J., Smith, P. J., Ruffin and Ellington, JJ, concur. Eldridge, J., dissents.

Eldridge, Judge,

dissenting.

1. Even if one credits the majority’s position and finds that Mrs. Jackson’s movement to the bedroom was in order to get her purse in response to Smith’s command, such movement was incidental to the armed robbery and in necessary furtherance thereof. If Mrs. Jackson had retrieved her purse and given it to Smith, the armed robbery would have been complete. And evidence of Mrs. Jackson’s movement to get the purse and give it to Smith would have been “used up” in proving the completion of the armed robbery. Simply because the armed robbery was halted and Smith forced to leave before the taking was completed does not transform Mrs. Jackson’s movement into a separate kidnapping. Her movement was not designed to better carry out a separate criminal act, such as rape; nor was it an instance where a victim is forced to a different spot before an assault or robbery is perpetrated.

The majority considers the attempted armed robbery “complete” at the “substantial step” of ordering Mrs. Jackson to get her purse with the accompanying threat of the use of a weapon. But I submit that the attempted armed robbery was not “complete” until it was frustrated by Mr. Jackson. I believe the majority confuses what it takes for the State to prove an essential element of attempted armed robbery pursuant tó OCGA § 16-4-1 with the offense in toto. “An attempt to commit a crime involves three elements: the intent to commit the crime, performance of a substantial step towards its commission, and failure to complete the crime” Thus, the attempted armed robbery was not suddenly “complete” and no longer extant at Smith’s order to Mrs. Jackson to get her purse, making everything thereafter — including Mrs. Jackson’s move to get her purse — fair game for the finding of separate additional offenses.

In this case, Mrs. Jackson’s movement was not in any sense separate from the armed robbery attempted by Smith, but was integrally linked therewith as the method by which Smith was to receive the purse and thus complete the taking. The fact that the armed robbery was ultimately frustrated and thus became “attempted,” as opposed to completed, does not alter the sequence of events interrupted by Mr. Jackson’s cane. The offense of kidnapping (if offense there was) should have merged into the offense of attempted armed robbery as a matter of fact for purposes of sentencing.

2. As a matter of law, a directed verdict should have been entered on the kidnapping charge pursuant to Smith’s motion therefor.

The record shows that defendant Smith was, without resistance and with his hands over his face, backing away from Mr. Jackson’s raised cane and toward the front door at the time Mrs. Jackson made the decision to leave the living room in order to go into the bedroom and use the telephone. Before Smith began cowering and retreating, he had ordered Mrs. Jackson to get her purse, and Mrs. Jackson testified that her purse was in the bedroom. But Smith did not know where her purse was in order to “force” her into the bedroom, and immediately thereafter — at the time Mrs. Jackson decided to leave the living room — Smith did not know where she went, when she went, or why she went because he was not concerned with her or her purse anymore; he was busy trying to keep from getting beaten with Mr. Jackson’s cane and to make it out the front door. As a matter of law, Smith could not have “forced” Mrs. Jackson into the bedroom when he did not know where she was going, did not know when she left, and Mrs. Jackson determined both the time of her going, the place of her going, and what she would do when she got there.

Decided July 9, 2001

Bischoff & White, James E. Bischoff, for appellant.

William T. McBroom III, District Attorney, Daniel A. Hiatt, Assistant District Attorney, for appellee.

While any movement will suffice to prove asportation, the offense of kidnapping, i.e., “abducting or stealing away any person without lawful authority and holding such person against her will,” does not encompass the instant scenario wherein the defendant is attempting to leave the scene at the point the victim makes the decision to move to a location unknown to the defendant and to dial 911, an earlier “threatening command” to get one’s purse notwithstanding.

       See State v. Burgess, 263 Ga. 143, 144-145 (1) (429 SE2d 252) (1993).

       (Citations and punctuation omitted.) Reeves v. State, 233 Ga. App. 802, 805 (2) (505 SE2d 540) (1998).

        Ricks v. State, 178 Ga. App. 98, 101 (4) (341 SE2d 895) (1986).

        Gould v. State, 239 Ga. App. 312, 313 (2) (521 SE2d 365) (1999); see OCGA § 16-4-1.

       See Ellis v. State, 211 Ga. App. 605, 608 (2) (440 SE2d 235) (1994) (forcible movement of victim from her den to her bedroom was sufficient to show asportation).

       See OCGA § 16-7-20.

        Bigsby v. State, 210 Ga. App. 696, 697 (1) (436 SE2d 817) (1993).

        Arnold v. State, 155 Ga. App. 782, 783 (1) (272 SE2d 751) (1980).

        Jones v. State, 258 Ga. 25, 27 (3) (365 SE2d 263) (1988).

       373 U. S. 83 (83 SC 1194,10 LE2d 215) (1963).

       See Rooks v. State, 238 Ga. App. 177, 178 (1) (518 SE2d 179) (1999).

        Harper v. State, 241 Ga. App. 865, 867 (3) (528 SE2d 317) (2000).

        Ortiz v. State, 222 Ga. App. 432, 434 (5) (474 SE2d 300) (1996).

       See id.

        Nelson v. State, 242 Ga. App. 63, 66 (8) (528 SE2d 844) (2000).

        Kelly v. State, 267 Ga. 252, 253 (2) (477 SE2d 110) (1996).

        Gibson v. State, 233 Ga. App. 838, 841 (4) (505 SE2d 63) (1998).

        Robinson v. State, 210 Ga. App. 175, 176 (1) (435 SE2d 466) (1993).

        Woodson v. State, 273 Ga. 557, 558 (544 SE2d 431) (2001).

       (Citations and punctuation omitted.) Gibson, supra, 233 Ga. App. at 841 (4) (a).

       See Williams v. State, 236 Ga. App. 351, 354 (1) (c) (511 SE2d 910) (1999) (holding victims at gunpoint while driving around parking lot sufficient proof).

       See Ellis, 211 Ga. App. at 608 (2).

        Shropshire v. State, 201 Ga. App. 421, 422 (411 SE2d 339) (1991).

       See id.

       See Russell v. State, 243 Ga. App. 378, 381 (2) (532 SE2d 137) (2000).

        Haynes v. State, 249 Ga. 119, 120 (288 SE2d 185) (1982); McClure v. State, 179 Ga. App. 245, 246 (2) (345 SE2d 922) (1986).

        Love v. State, 190 Ga. App. 264, 266 (378 SE2d 893) (1989) (Benham, J., concurring specially).

       (Emphasis supplied.) Perkins v. State, 224 Ga. App. 63, 64 (1) (479 SE2d 471) (1996); Wittschen v. State, 259 Ga. 448 (1) (383 SE2d 885) (1989).

        Jordan v. State, 242 Ga. App. 408, 409 (3) (530 SE2d 42) (2000).

       OCGA § 16-1-6 (1).

       Compare Woodson v. State, 273 Ga. 557, 558 (544 SE2d 431) (2001) (defendant’s order to “go in there” along with brandishing of a knife and defendant’s physical accompaniment of victim into room sufficient to show asportation based on threatening command). See also Woodson v. State, 242 Ga. App. 67, 68 (530 SE2d 2) (2000).


source: Caselaw Access Project

author: Phipps, Judge. SMITH, Presiding Judge,

license: Public Domain

text:
    A01A0056.
    PURCELL et al. v. BREESE et al.
    (552 SE2d 865)
   Phipps, Judge.

As a result of their son Jonathan’s suicide, Janet and John Breese filed a wrongful death action against Kennestone Hospital, Dr. John Purcell and social worker Honey Caplan. They asserted claims for general and professional negligence. Purcell moved for summary judgment, claiming that his alleged negligence was not the proximate cause of Jonathan’s death, that he owed no duty to Jonathan at the time of his death because their doctor-patient relationship had been severed and that he is immune from suit for failing to admit Jonathan involuntarily to Kennestone because there has been no showing of bad faith on his part. The trial court denied Purcell’s motion, finding that there are genuine issues of material fact regarding whether Purcell owed a duty to or had control over Jonathan and whether Jonathan’s release from Kennestone without further treatment was the proximate cause of his death. The trial court certified the matter for immediate review, and we granted Purcell’s application for interlocutory appeal. We affirm.

In 1991, Jonathan and his family moved from Wisconsin to Atlanta. When his parents divorced two years later, he went to live with his father and his father’s new wife. In 1994, Jonathan began to have suicidal thoughts. In May 1995, he expressed an intention to kill himself to his high school counselors at Walton High in Marietta. The counselors met with Jonathan and his parents to discuss Jonathan’s suicidal thoughts.

In July 1995, Jonathan began living with his mother and sister. During that summer, he made more than one suicidal threat.

On August 27, 1995, Jonathan and his mother got into an argument, and he pushed her. She filed a police report, and he was arrested. The police gave Jonathan the option of going either to juvenile detention or to Kennestone Hospital for evaluation and treatment. Jonathan chose to be voluntarily admitted to Kennestone’s psychiatric unit. He was admitted on August 27, 1995. He was 15 years old.

While at Kennestone, Jonathan was treated by Purcell and Caplan. He reported to hospital officials that he had previously attempted suicide by placing a loaded gun into his mouth or to his head and pulling the trigger but that he had survived because the gun had misfired. Jonathan also told hospital officials about his history of drug use, including intravenous heroin, hallucinogenic drugs, marijuana and alcohol. He told them that during the months prior to his admission, he had used acid and marijuana. Jonathan told Caplan that he “hear[d] voices” that told him bad things about himself and that he had occasional visual hallucinations. He also told her that he was not presently suicidal, but that he always thought about it.

On August 30,1995, Caplan called Jonathan’s mother and asked her to come to Kennestone to meet with her and Jonathan. When she arrived, Jonathan was upset and agitated because he believed that Caplan had divulged to other hospital personnel something he had told her in confidence.

Jonathan demanded to be discharged from Kennestone, and his mother agreed because she did not believe he would be cooperative in any further treatment. Caplan reached Purcell by telephone, and he authorized Jonathan’s discharge that day, without meeting with or talking with Jonathan. Purcell did not see or treat Jonathan after August 30, 1995. In her August 30 notes, Caplan wrote that she believed Jonathan desperately needed treatment but that he had refused to consider obtaining outpatient treatment from other facilities she had suggested. She also noted that Jonathan admitted that he constantly thought about suicide.

When they returned home, Jonathan and his mother discussed the possibility of further counseling, but he never received any. On October 24, 1995, Jonathan’s mother went to Toronto on a business trip and left him home alone. While she was gone, Jonathan committed suicide.

In support of their claims, the Breeses submitted an expert affidavit from Dr. Kenneth Tardiff in which he opined that Purcell failed to meet the standard of care of the medical profession generally in his treatment of Jonathan because he failed to (1) closely monitor him prior to his discharge, (2) communicate properly with Jonathan, his mother and Caplan and (3) maintain custody of Jonathan, who should have been hospitalized and treated for his mental illness and drug abuse. Tardiff further opined that at the time of Jonathan’s discharge from Kennestone, there was evidence that he was at risk for committing suicide. That evidence included the following:

Jonathan Shea Breese was psychotic inasmuch as he had reported hearing voices telling him bad-things about himself; he had suicidal ideations; he was depressed; he had organic brain impairment; he was a heavy drug user; he had previously attempted to commit suicide; he had a history of noncompliance with treatment; and he had a history of violence toward others along with an indifference toward living.

In support of his motion for summary judgment, Purcell submitted an affidavit in which he stated his conclusions that Jonathan “had suicidal thoughts in the past but was not currently experiencing suicidal ideation” and that, at the time of discharge, he was not an immediate threat to himself or others. He also stated that he had tried to convince Jonathan’s mother to allow Jonathan to stay at Kennestone for further treatment but that he could not commit him involuntarily because he did not have present suicidal or homicidal ideations.

1. Purcell argues that the trial court should have granted his motion for summary judgment because there is no evidence that his care of Jonathan led to Jonathan’s suicide.

As a general rule,

“negligence [cases] are susceptible to summary adjudication only in plain, palpable and indisputable cases; the evidence must be construed most favorably to the party opposing the motion, and he must be given the benefit of all favorable inferences and reasonable doubts which may arise from the evidence. Summary judgment may be granted only where, construing all inferences against the movant, it yet appears without dispute that the case can have but one outcome and that outcome must be in the movant’s favor.”

Questions of proximate cause ordinarily are reserved solely for the jury and should not be resolved as a matter of law except in plain and indisputable cases. This is not such a case.

All tests used to determine the issue of proximate cause “ ‘envision some reasonable apprehension of harm.’ ” Construed against Purcell, the evidence and inferences drawn therefrom show that, when he was released, Jonathan was at risk for committing suicide and had no intention of obtaining outpatient treatment. In light of these factors, Purcell’s decision to release him without talking with him, seeing him or reviewing the most recent entries in his record created a reasonable apprehension of harm sufficient to withstand summary judgment.

2. Relying on Matthews v. DeKalb County Hosp. Auth., Purcell argues that he had no duty to protect Jonathan after his discharge because the doctor-patient relationship had been voluntarily terminated by Jonathan’s mother, as Jonathan’s guardian. Matthews, however, was based on a lack of proximate cause between the hospital’s classification of a patient’s condition as nonlife-threatening and her death two days later, after she voluntarily left the hospital without obtaining treatment. As set forth in Division 1, we find summary judgment is inappropriate on the issue of proximate cause.

Purcell does not dispute that a doctor-patient relationship existed at the time the allegedly negligent acts occurred, during Jonathan’s treatment and at the time of his discharge. The fact that the relationship had been severed prior to Jonathan’s death does not entitle Purcell to summary judgment.

3. Purcell claims that he had no duty to prevent harm to Jonathan because Jonathan was not under Purcell’s control at the time of his suicide. He argues that Bradley Center v. Wessner sets forth a test for determining whether a treating physician can be held liable for the acts of a mental patient and that the test requires that the physician have physical control over the patient at the time of the incident.

The issue in Bradley Center v. Wessner was whether a mental health hospital could be held liable for the death of a third party at the hands of one of its patients based on evidence that it had failed to exercise reasonable care in controlling the patient’s conduct while the patient was on a weekend pass from the hospital, where no privity had existed between the decedent and the hospital. Here, privity did exist between Jonathan and Purcell at the time of the allegedly negligent acts. Thus, the Bradley Center theory of liability is not applicable.

4. Purcell argues that, under OCGA § 37-3-4, he is entitled to immunity from suit for Jonathan’s discharge because there is no evidence that he acted in bad faith. That statute provides, in relevant part, that a hospital physician who acts in good faith in compliance with the admission and discharge provisions of this chapter shall be immune from civil or criminal liability for his actions in connection with the admission or discharge of a patient from the hospital.

In Poss v. Ga. Regional Hosp., the district court found this statutory immunity applicable to medical negligence claims against a physician for discharging a mental patient who later committed suicide. Thus, it appears that the statute is applicable to the Breeses’ claims against Purcell.

We now consider whether Purcell is entitled to summary judgment on this issue. Good faith has been defined as “ ‘a state of mind indicating honesty and lawfulness of purpose; belief that one’s conduct is not unconscionable or that known circumstances do not require further investigation.’ ” Ordinarily, good faith is a question for the jury based on a consideration of the facts and circumstances of the case. But summary judgment is appropriate in cases where no evidence supports a finding of lack of good faith.

Jonathan was admitted to Kennestone under OCGA § 37-3-20 (a), which provides that

[t]he chief medical officer of any facility may receive for observation and diagnosis any patient 12 years of age or older making application therefor, any patient under 18 years of age for whom such application is made by his parent or guardian. ... If found to show evidence of mental illness and to be suitable for treatment, such person may be given care and treatment at such facility; and such person may be detained by such facility until discharged pursuant to Code Section 37-3-21. ...

Pursuant to OCGA § 37-3-21 (a), no voluntary patient shall be discharged if, in the judgment of the chief medical officer of the facility, such discharge would be unsafe for the patient or others. If a voluntary patient or his legal guardian requests a discharge in writing at any time after his admission, the patient must be discharged within 72 hours of the written request, unless the chief medical officer finds that the discharge would be unsafe for the patient or others.

The Breeses argue that Purcell violated all of these Code sections by failing to detain Jonathan against his will when he knew or should have known that Jonathan posed a serious threat to himself. As evidence of bad faith, they point to Purcell’s failure to examine or talk with Jonathan prior to his discharge or to review the August 30 notes in Jonathan’s file, which included Caplan’s assessment that Jonathan was in desperate need of treatment, Jonathan’s admission that he constantly thought about suicide and Jonathan’s refusal to consider outpatient treatment at other facilities. They also claim that Purcell failed to return several telephone calls from Jonathan’s mother.

Based on Purcell’s failure to examine Jonathan, speak with him or review the most recent notes in his file prior to authorizing his discharge, we cannot find as a matter of law that he complied in good faith with the applicable Code sections.

Judgment affirmed.

Pope, P. J., Barnes and Mikell, JJ, concur. Blackburn, C. J., Andrews, P. J., and Smith, P. J., dissent.

SMITH, Presiding Judge,

dissenting.

Although the facts of this case are heart wrenching and tragic, I do not believe that the plaintiffs established that Purcell’s actions or inactions proximately caused the suicide of Jonathan Breese.

A plaintiff seeking to impose liability for medical malpractice must show that the defendant breached the duty inherent in the doctor-patient relationship by failing to exercise the requisite degree of skill and care and that this breach was the proximate cause of the injury. Anthony v. Chambless, 231 Ga. App. 657, 659 (1) (500 SE2d 402) (1998). And

[n]egligence alone is insufficient to sustain recovery. It must be proven that the injury complained of proximately resulted from such want of care or skill. A bare possibility of such result is not sufficient. Additionally, there can be no recovery for medical negligence involving an injury to the patient where there is no showing to any reasonable degree of medical certainty that the injury could have been avoided.

(Citations, punctuation and footnote omitted.) Id.

The professional affidavit attached to the complaint in this case does recite that Purcell breached the standard of care of the medical profession generally in his care and treatment of Jonathan Breese. Missing from the affidavit, however, is a showing that Jonathan’s death was proximately caused by any breach of duty by Purcell. And more importantly, the record does not otherwise show to a reasonable degree of medical certainty that the suicide could have been avoided or that Purcell proximately caused the suicide. The suicide occurred two months after Jonathan’s release, during which time he expressed suicidal thoughts to his mother, who had been encouraged to seek psychiatric help for Jonathan. She failed to do this and even left him alone for two nights after he mentioned the prospect of suicide. At best, the plaintiffs established only a possibility that Purcell’s actions were the proximate cause of Jonathan’s death. This was not enough. It is true that we have stated that “the phrase ‘reasonable medical certainty’ ... is neither magic nor particularly helpful.” (Citation omitted.) Abdul-Majeed v. Emory Univ. Hosp., 225 Ga. App. 608, 609 (484 SE2d 257) (1997), overruled on other grounds, Ezor v. Thompson, 241 Ga. App. 275, 279 (526 SE2d 609) (1999). Instead, “[wjhat courts and juries need from medical experts is not a simple recitation of these words, but a realistic assessment of the likelihood that the alleged negligence caused the injury or death.” Abdul-Majeed, supra. Here, the record falls short of showing such a “realistic assessment” of causation, and summary judgment in Purcell’s favor was warranted.

I am authorized to state that Chief Judge Blackburn and Presiding Judge Andrews join in this dissent.

Decided July 9, 2001

Webb, Carlock, Copeland, Sender & Stair, Mary Katherine Greene, Alwyn R. Fredericks, for appellants.

Orlando & Kopelman, Richard Kopelman, Browning & Tanksley, Henry D. Green, Jr., for appellees.

       After Jonathan was discharged, his mother learned that the sensitive information was the fact that Jonathan was “hearing voices.”

       (Citations omitted.) Sykes v. Colony Regency Partners, 226 Ga. App. 804, 806 (487 SE2d 408) (1997).

        Strickland v. DeKalb Hosp. Auth., 197 Ga. App. 63, 67 (2) (d) (397 SE2d 576) (1990); Atlanta Gas Light Co. v. Mills, 78 Ga. App. 690, 695 (1) (51 SE2d 705) (1949).

        Brandvain v. Ridgeview Institute, 188 Ga. App. 106, 115 (3) (b) (372 SE2d 265) (1988).

       See id. at 116 (3) (b) (if the intervening act of suicide “ ‘is a reasonably foreseeable consequence of the defendant’s negligent conduct, the legal, causal connection between that conduct and injury is not broken.’ [Cit.]”).

       211 Ga. App. 858 (440 SE2d 743) (1994).

       Id. at 859 (1).

       250 Ga. 199 (296 SE2d 693) (1982).

        Ga. Osteopathic Hosp. v. O’Neal, 198 Ga. App. 770, 773 (3) (403 SE2d 235) (1991).

       676 FSupp. 258, 261-262 (S.D. Ga. 1987).

        Anderson v. Little &c. Funeral Home, 242 Ga. 751, 753 (1) (251 SE2d 250) (1978), citing Webster.

        Hodges v. Youmans, 129 Ga. App. 481, 483 (3) (200 SE2d 157) (1973).

        Poss, 676 FSupp. at 262.

       OCGA § 37-3-22 (a).

       They also note that Jonathan’s discharge request was never put in writing.


author: Blackburn, Chief Judge.

text:
    A01A0269.
    THE STATE v. BUTE.
    (552 SE2d 465)
   Blackburn, Chief Judge.

Following the trial court’s grant of Victor Albert Bute’s motion to suppress marijuana found in his automobile, the State appeals, contending that the arresting officer properly stopped Bute’s truck to investigate a violation of OCGA § 40-6-242 (a). For the reasons outlined herein, we reverse.

“When we review a trial court’s decision on a motion to suppress, the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them.” (Citation and punctuation omitted.) Allenbrand v. State. However, where, as in this case, the evidence at the suppression hearing was uncontroverted, and no question of credibility of the witnesses was presented, “[w]e . . . review the trial court’s ruling on the motion to suppress to ensure that there was a substantial basis for it. The trial court’s application of the law to the undisputed facts is subject to de novo review.” (Citations omitted.) State v. Armstrong. See also Vansant v. State.

So viewing the evidence, the following facts were adduced at the suppression hearing: At approximately 3:30 a.m. on July 4, 1999, Officer Cass Mooney witnessed Bute driving his truck from behind a closed shopping center with his radio at a “booming” level. Officer Mooney also noticed four people crowded into the front seat sitting shoulder to shoulder. At that point, Officer Mooney stopped Bute’s vehicle to investigate a violation of the front seat passenger occupancy limitation contained in OCGA § 40-6-242 (a).

. As Officer Mooney approached Bute, he smelled the odor of an alcoholic beverage coming from the vehicle and noticed that Bute’s face was flushed and his eyes were bloodshot and glazed. Officer Mooney learned that all of the occupants of the vehicle were eighteen years old and that one of the passengers had been drinking. Bute, acting nervously and speaking rapidly, denied that he had been drinking and volunteered to take field sobriety tests, which he failed.

After Bute failed the sobriety tests, Officer Mooney asked Bute if he had any alcohol or drugs with him. Bute stated that he did not have any alcohol or drugs and suggested that Officer Mooney conduct a search. Officer Mooney asked Bute to turn his pockets inside out, and Bute complied, producing a plastic bag from his left shirt pocket which contained marijuana. At this time, Officer Mooney arrested Bute for DUI.

An accusation was filed, charging Bute with (1) driving under the influence of alcohol to the extent it was less safe for him to drive; (2) driving under the influence with an alcohol concentration of 0.02 percent or more, while under the age of twenty-one; (3) possession of marijuana; (4) interference with control of a vehicle by driving with more than three passengers in the front seat, in violation of OCGA § 40-6-242 (a); and (5) violation of the sound volume limitation contained in OCGA § 40-6-14, through the use of a stereo.

Bute filed a motion to suppress the evidence, contending that the officer had no articulable suspicion which would authorize the stop and that it was pretextual. At the suppression hearing, Officer Mooney explained that he stopped Bute for a possible violation of OCGA § 40-6-242 (a), which prohibits a driver from driving with more than three persons in the front seat so as to interfere with the driver’s sight or control over the driving mechanism of the vehicle. Bute argues that the mere act of having more than three persons in the front seat does not violate the statute, and therefore, the stop was unlawful. The State contends that Officer Mooney acted upon a reasonable belief that a traffic violation had occurred because there were more than three occupants of the front seat, which authorized the stop and an investigation. The trial court found, however, that Officer Mooney lacked sufficient, articulable suspicion to stop Bute and granted Bute’s motion to suppress the evidence of the DUI and drug possession. We disagree.

“As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.” Whren v. United States. Accordingly, in Whren, the U. S. Supreme Court held that where a police officer has probable cause to believe a motorist committed a traffic violation, a stop is not rendered invalid under the Fourth Amendment by the officer’s subjective intentions. Id. at 813. The Supreme Court reinforced the Whren decision in Ohio v. Robinette, where the Court held that the subjective intentions of a police officer did not make the continued detention of a motorist unlawful where the officer initially had probable cause to stop the motorist for speeding. Robinette, supra at 38.

Similarly, we noted in Hines v. State that “the stop of a vehicle is authorized if an officer observes the commission of a traffic offense.” Id. at 477. There, we found a vehicle stop to be reasonable where the officer observed an apparent equipment violation (i.e., malfunctioning headlight). In Hines, we noted that our conclusion held even if the motorist ultimately was not cited for the violation for which he was stopped. Id. at 478. We reached a similar result in State v. Bowen and Roberson v. State. In both instances, the officers initiating the stops witnessed traffic offenses: in Bowen, weaving, and in Roberson, backing up illegally. Bowen, supra at 96; Roberson, supra at 180-181.

In the case at bar, Officer Mooney had probable cause to believe that Bute violated OCGA § 40-6-242 (a). Officer Mooney testified that he saw four people riding in the front seat of Bute’s vehicle. These four occupants may well have blocked the driver’s view in violation of OCGA § 40-6-242 (a). The officer was clearly authorized to stop the vehicle and investigate this apparent violation of the traffic laws. Although Bute argues that there was no evidence presented to show that he was driving erratically at the time of the stop, such proof is not necessary. We have rejected the notion that the officer must know that each “element” of a crime could be established prior to initiating a stop. See Armstrong, supra at 352.

In analyzing an officer’s conduct, we look to the totality of the circumstances. United States v. Cortez. Here, at 3:30 a.m., the officer observed a vehicle with four passengers in the front seat and sound blaring therefrom in violation of OCGA § 40-6-14, driving from behind the shops in a closed shopping center. The totality of the circumstances confronting the officer raised his suspicions and authorized an investigative stop. The violation of the sound volume limitation, OCGA § 40-6-14, without more, authorized the stop, under Whren, supra, and Robinette, supra.

Decided July 9, 2001.

Gerald N. Blaney, Jr., Solicitor-General, Emilien O. Loiselle, Jr., Gary S. Vey, Assistant Solicitors-General, for appellant.

Robert Greenwald, for appellee.

Where the officer observes the violation of a traffic law, the resulting stop is not pretextual. Whren, supra. Officer Mooney was the only witness to testify at the suppression hearing. His undisputed testimony established that he stopped Bute based upon a founding suspicion that Bute violated at least two traffic offenses in his presence as outlined above. Thus, the stop was legal, and the motion to suppress should have been denied. The trial court erred in granting defendant’s motion to suppress.

Judgment reversed.

Pope, P. J., and Mikell, J., concur.

        Allenbrand v. State, 217 Ga. App. 609 (1) (458 SE2d 382) (1995).

        State v. Armstrong, 223 Ga. App. 350, 351 (1) (477 SE2d 635) (1996).

        Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

       OCGA § 40-6-242 (a) provides: “No person shall drive a vehicle when it is so loaded or when there are in the front seat such a number of persons, exceeding three, as to obstruct the view of the driver to the front or sides of the vehicle or as to interfere with the driver’s control over the driving mechanism of the vehicle.”

        Whren v. United States, 517 U. S. 806, 810 (116 SC 1769, 135 LE2d 89) (1996).

        Ohio v. Robinette, 519 U. S. 33, 38 (117 SC 417, 136 LE2d 347) (1996).

        Hines v. State, 214 Ga. App. 476, 477-478 (448 SE2d 226) (1994).

        State v. Bowen, 231 Ga. App. 95 (498 SE2d 570) (1998).

        Roberson v. State, 230 Ga. App. 179 (495 SE2d 643) (1998).

       We express no opinion as to whether there must be evidence of irregular driving to establish a violation of OCGA § 40-6-242 (a).

        United States v. Cortez, 449 U. S. 411 (101 SC 690, 66 LE2d 621) (1981).


text:
    A01A0363.
    DANIEL v. DANIEL.
    (552 SE2d 479)
   Blackburn, Chief Judge.

In this case involving a modification of Suzanne K. Daniel and Marvin C. Daniel’s joint legal custody over their daughter, Suzanne Daniel appeals the trial court’s order granting decision making authority over educational matters to her husband, arguing that the trial court: (1) improperly employed a “best interest of the child” standard in reaching its decision and (2) improperly allowed Marvin Daniel to counterclaim that he should be given decision making authority regarding his daughter’s education. For the reasons set forth below, we find that Suzanne Daniel has waived her right to challenge the trial court’s standard of review on appeal and the trial court did not err by allowing Marvin Daniel’s counterclaim.

The record reveals that the Daniels were divorced in the Superior Court of Bulloch County on March 29, 1999. The final divorce decree incorporated a settlement agreement between the parties which gave them joint legal custody over their daughter, Harlee. The agreement, however, contained no tie-breaking provisions in case the Daniels could not agree on child rearing matters between themselves. In addition, the agreement awarded primary physical custody of Harlee to her mother.

Following the divorce, the Daniels began to disagree regarding their daughter’s education. Suzanne Daniel wanted to home school the child, and Marvin Daniel wanted the child to attend public school. Frustrated, Suzanne filed a petition for a change of custody, asking that she be designated the primary decision maker with regard to education, religious training, and health care issues. During the hearing on the matter, Marvin Daniel orally counterclaimed, requesting the trial court to make him primary decision maker regarding his daughter’s education.

After hearing evidence, the trial court found that there was insufficient evidence of a change in condition materially affecting Harlee’s welfare to justify a change of custody. Nevertheless, the trial court modified the Daniels’ joint legal custody over Harlee, granting primary decision making authority over educational matters to Marvin Daniel. Here, the settlement agreement incorporated into the final decree failed to include a procedure for resolving these parental disputes. The trial court sought to fill this parental vacuum by determining the best interest of the child, notwithstanding the fact that there was no predicate showing of a change in condition. In doing so, the trial court relied upon OCGA § 19-9-6 (2). Suzanne Daniel now appeals this ruling, arguing that an improper standard was employed.

1. The record reveals that Suzanne Daniel explicitly agreed with the trial court that the “best interest” standard should be applied to the determination regarding Harlee’s education. As such, Suzanne Daniel cannot challenge that issue now. “ ‘[A] party will not be heard to complain of error induced by [her] own conduct, nor to complain of errors expressly invited by [her] during the trial of the case.’ ” Clark v. Stafford. Accordingly, in this particular case, Suzanne Daniel has waived her right to take issue with the standard of review applied by the trial court.

2. We must point out, however, that the modification of custody requested by the Daniels in this case requires a finding of a material change of condition.

When a court is deciding the merits of a divorce action and making a concomitant determination regarding the custody of children of the marriage, that court may make these original custody decisions based on the best interests of the children. See OCGA § 19-9-1 (a) (1). However, once a divorce decree has been approved and “a permanent child custody award has been entered, the test for use by the trial court in change of custody suits is whether there has been a change of conditions affecting the welfare of the child. Gazaway v. Brackett” (Punctuation omitted.) In the Interest of S. D. J. See also OCGA § 19-9-3 (a); Arp v. Hammonds.

Whether conditions, which affect the welfare of the child, have changed since the rendition of a former final custody judgment depends on the facts of the case. If reasonable evidence exists in the record to support the trial court’s decision to change custody or visitation rights, then the decision of that court will stand. The trial court’s decision will not be overturned absent abuse of discretion. Though the trial judge is given a discretion, he is restricted to the evidence and is unauthorized to change the custody where there is no evidence to show new and material conditions that affect the welfare of the child.

(Citations and punctuation omitted.) Mahan v. McRae.

And, there is no precedent which would allow a trial court, absent a change in conditions affecting the welfare of the child, to modify custody. The best interest of the child should be utilized in deciding the case once a change in condition has been established. Although the trial court cited OCGA § 19-9-6 (2) as a basis for its authority, that Code section does not grant a trial court power to modify joint legal custody arrangements. This Code section merely sets forth definitions of a number of terms. It defines “joint legal custody,” providing:

“Joint legal custody” means both parents have equal rights and responsibilities for major decisions concerning the child, including the child’s education, health care, and religious training; provided, however, that the court may designate one parent to have sole power to make certain decisions while both parents retain equal rights and responsibilities for other decisions.

It does not allow a trial court to circumvent the requirement that a change in condition be proven to support a custody modification under the facts of this case.

While a “best interest of the child” standard applies to an initial determination of custody, see OCGA § 19-9-1, it is applicable in a change of custody action only after there has been a showing of a change in condition materially affecting the child. Here the trial court determined that there had been no showing of such a change of conditions. In cases where the parents have been awarded joint legal custody of their child, the underlying goal is to encourage both parents to continue to play equal parts in raising the child, without court intervention. And, in fact, there is no real difference in parental authority between two parents who remain married and two parents who have divorced but retain joint legal custody except as provided in the decree. The courts are no better equipped to resolve parental decisions for divorced parents with joint legal custody than they are to resolve such issues for married couples. Where a child goes to school is a parental decision. If a married couple is having trouble deciding how their child should be raised, whether in terms of education, religion, or creed, they cannot litigate such issue standing alone, but only in connection with a legal proceeding by which the authority to decide is vested in one of the parties or is otherwise provided for. While it is desirable for both parents to be involved in the lives of their children, a joint legal custody award which fails to provide a method for resolving disputes such as the one involved here ignores the realities of life and guarantees future litigation. It places the court in the position of making decisions that should be made by the parents, jointly or singly if they cannot agree.

Couples entering a divorce, especially where minor children are involved, must do so knowingly and advisedly, aware of their inabilities to agree on fundamental matters of importance, which condition probably contributed to the dissolution of the marriage. It is at the time that the decree is entered that the divorcing parties should work out the very difficulties that form the heart of this case, not afterward. The parties are well advised to adopt a procedure for resolving such disagreements and to include it as a part of the order of the court.

Where a decree of custody has been entered, it has often been negotiated by the parties in a custody agreement, reviewed by the trial court, and modified as the trial court deems necessary. OCGA § 19-9-5. Such agreements, which reflect both the negotiation of the parties and the approval of the trial court, should not be set aside lightly. If they were, then the court would, in essence, become the third parent, thereby violating both the autonomy of the family unit and the independence of the judiciary. Agreements which do not provide a reasonable procedure for resolving disputes in joint custody cases should not be approved by the trial court.

3. Suzanne Daniel also contends that the trial court erred by allowing Marvin Daniel to make a counterclaim at the hearing in which he requested to be appointed the primary decision maker with regard to Harlee’s education. We disagree.

Decided July 9, 2001.

Ashby & Metts, James C. Metis III, for appellant.

Oliver, Maner & Gray, Inman G. Hodges, Patricia T. Paul, for appellee.

OCGA § 9-11-13 (f) provides: “When a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, he may by leave of court set up the counterclaim by amendment.” In this case, the trial court specifically found that justice required that the counterclaim be considered for two reasons: (1) the needs of Harlee could not be satisfied in the absence of the counterclaim and (2) consideration of the counterclaim fostered judicial economy. In light of these reasons, we cannot say that the trial court erred by considering Marvin Daniel’s counterclaim.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

       The Daniels’ physical custody over their daughter is not at issue in this appeal.

        Clark v. Stafford, 239 Ga. App. 69, 72 (2) (522 SE2d 6) (1999).

        Gazaway v. Brackett, 241 Ga. 127, 128 (244 SE2d 238) (1978).

        In the Interest of S. D. J., 215 Ga. App. 779 (452 SE2d 155) (1994).

        Arp v. Hammonds, 200 Ga. App. 715, 716 (409 SE2d 275) (1991).

        Mahan v. McRae, 241 Ga. App. 109, 110 (522 SE2d 772) (1999).


author: Pope, Presiding Judge.

text:
    A01A0416.
    JONES v. SMITH.
    (552 SE2d 112)
   Pope, Presiding Judge.

Kelly Smith, the biological father, filed a petition seeking to legitimate a child born on December 31, 1996, to his girlfriend, Lisa Jones. Following a bench trial the trial court granted Smith’s petition. On August 3, 2000, we granted Jones’ application for discretionary appeal. Jones’ fifth enumeration of error is that the trial court failed to make adequate findings of fact and conclusions of law. We agree.

The law relevant to a legitimation petition presented by the putative biological father has been explained by the Supreme Court in In re Baby Girl Eason, 257 Ga. 292, 296 (358 SE2d 459) (1987). The court must initially determine whether the father has abandoned his opportunity interest to develop a relationship with the child. Id. Then, depending on the nature of the putative father’s relationship with the child and other surrounding circumstances, the standard for evaluating whether legitimation is appropriate is either a test of his fitness as a parent or the best interest of the child. Id. at 296-297. See also LaBrec v. Davis, 243 Ga. App. 307, 312-316 (2) (534 SE2d 84) (2000), aff’d, Davis v. LaBrec, 274 Ga. 5 (549 SE2d 76) (2001). This decision is dependent on a variety of factors as spelled out in Eason and LaBrec.

The primary issues at trial were whether Smith had abandoned his opportunity interest in being the legal father of the child and whether legitimation was proper given Smith’s background as a violent person, a convicted criminal with multiple convictions for aggravated assault, possession of marijuana with intent to distribute, and possession of a firearm by a convicted felon, and as a person with bad judgment who smoked marijuana and carried guns in the presence of the child. Indeed, the court acknowledged that “this fellow is an outlaw.”

On April 10, 2000, in open court immediately following the close of evidence, the trial court announced that it was granting the petition for legitimation. On April 19, Jones moved for findings of fact and conclusions of law by the court pursuant to OCGA § 9-11-52 (c). Jones specifically requested factual findings “as to how the minor child in question in this case will benefit from being legitimated by the Plaintiff, Kelly Vann Smith, and why such legitimation is in the child’s best interest.” On April 25, the court issued its findings, which, not counting typical boilerplate recitations and provisions related to the ramifications of the decision, stated the following:

The Court finds that there is an established parent-child relationship between Plaintiff and the child. There was no question of the child’s paternity. There has been no abandonment or relinquishment of parental rights. The Plaintiff provided support for the mother during her pregnancy and continued to provide support, gift, and in-kind contributions for the child to date. The mother on behalf of the child receives a Social Security check by virtue of the Plaintiff’s disability and Plaintiff has established and funded a C.D. and savings accounts in trust for the child. Therefore, G. M. S. (D.O.B. December 31, 1996) is hereby declared to be the legal and biological child of Plaintiff, Kelly Vann Smith.

Pretermitting the question of whether a request for findings made after oral announcement of a ruling but before entry of the written judgment constitutes a timely request for mandatory findings under OCGA § 9-11-52 (a), we conclude that the findings issued by the court in response to Jones’ request are deficient in several ways. They do not state which test will be used for assessing legitimation nor provide the factual support for that decision, and they do not contain findings of fact or conclusions of law to support a decision under either the best interest or parental fitness standard. As a result, we cannot determine the legal basis for the decision and are unable to address any of the substantive enumerations of error on appeal. Zumpano Enterprises v. Ga. Tile Distrib., 200 Ga. App. 563, 564 (408 SE2d 813) (1991). See also Gold Kist v. Wilson, 220 Ga. App. 426, 428 (469 SE2d 504) (1996) (under certain circumstances it is an abuse of discretion for the trial court to fail to issue findings in response to a request under subsection (c)). Accordingly, we remand with direction that the trial judge vacate the judgment, prepare, or cause to be prepared, appropriate findings of fact and conclusions of law, and enter a new judgment thereon, after which the losing party shall be free to pursue another appeal if he or she should wish to do so.

Decided July 9, 2001.

George M. Rountree, for appellant.

Hollé Weiss-Friedman, for appellee.

Case remanded with direction.

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

       Compare Greene County v. North Shore Resort &c., 238 Ga. App. 236, 240 (2) (517 SE2d 553) (1999) (dicta stating that request made prior to judgment or ruling makes findings mandatory) and Williams v. City of LaGrange, 213 Ga. 241, 242 (1) (98 SE2d 617) (1957) (“ ‘What the judge orally declares is no judgment until it has been put in writing and entered as such.’ ”) with language of OCGA § 9-11-52 (a) (“upon request of any party made prior to such ruling. . . .”).


author: Ruffin, Judge.

text:
    A01A0730.
    KRISTIN NATIONAL, INC. v. BOARD OF EDUCATION OF THE CITY OF MARIETTA et al.
    (552 SE2d 475)
   Ruffin, Judge.

Kristin National, Inc. d/b/a Taggart’s Driving School (“Taggart’s”) is a driver education school which, for a fee of $379, teaches students to drive. The Marietta City School District and the Cobb County School District (collectively the “school systems”) offer their own, extracurricular driver education program for a fee of $195. Taggart’s sued the school systems, seeking an injunction and asking the court to declare that their driver education program violates Georgia law. The trial court granted the school systems’ motion for summary judgment, and Taggart’s appeals. For reasons that follow, we affirm.

Summary judgment is appropriate where the evidence of record “show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” On appeal, we review a trial court’s grant of summary judgment de novo.

The relevant facts in this case are undisputed. The school systems conduct their driver education program through the Marietta City School District’s Community School Program (“CSP”). The CSP offers extracurricular classes for a fee on a variety of subjects, including cooking, computers, and driver education. The driver education course is offered to all high school students after regular school hours and on weekends. Because it is not a required subject of the school systems’ regular curriculum, enrolled students receive no credit for the course. The school systems receive no state or federal funding for the course, relying instead on the $195 fee charged to each student taking the class.

The school systems are able to offer their driver education course to students at a substantially lower price than Taggart’s because the CSP does not pay any taxes on goods, such as cars, and services, such as maintenance, that it purchases for the driver education course. In addition, the school systems’ driver education course has the option of buying gas for class vehicles from the school systems’ bus facility for $1 per gallon or in the retail market if the price there is less. Furthermore, the CSP pays the school systems only $20,000 per year to help offset the cost of administering its program. The money generated from student fees for the driver education course is used to pay the $20,000 fee and for course expenses such as salaries, new cars, vehicle maintenance, automobile insurance, and classroom materials. Each year the CSP, as a whole, generates excess revenues of approximately $200,000, which it remits to the school systems to pay for things such as field trips, materials, and equipment.

Taggart’s alleges that the school systems’ driver education program is unlawful for several reasons. Taggart’s asserts that the school systems’ operation of the program is an ultra vires act, that it violates Georgia’s Quality Basic Education Act (“QBE Act” or “Act”), that it constitutes unfair competition, and that it is unconstitutional. In granting summary judgment to the school systems, the trial court concluded that, having satisfied the QBE Act by offering students 180 days of tuition-free education, the school systems, “acting well within their authority to expand and enrich their curricula,. . . may charge a fee for Driver Education when offered as part of [the CSP].” We agree with the trial court.

1. Taggart’s asserts that the school systems’ operation of the driver education course is an ultra vires act “because no express statutory authority permits such acts.” Although Taggart’s does not dispute the school systems are permitted to teach driver education, it contends that they have no authority to offer the class after regular school hours for a fee.

As a general rule,

in the absence of express legislative sanction, [municipalities have] no authority to engage in any independent business enterprise or occupation such as is usually pursued by private individuals. In other words, its legitimate duty is to deal with public affairs, and not those which are purely private and entirely unconnected with a proper administration of its governmental duties.

Teaching children, however, is not a matter which is purely private and entirely unconnected with the school systems’ proper administration of its duties. The Georgia Constitution clearly imposes this duty on the government. Article VIII, Section I, Paragraph I of the Georgia Constitution of 1983 requires that “[t]he provision of an adequate public education for the citizens shall be a primary obligation of the State of Georgia.” To meet this obligation, the Constitution grants local school boards the power “to establish and maintain public schools within their limits” and charges the boards with the “management and control” of the schools. Our Supreme Court has characterized these constitutional provisions as a

complete constitutional vesting of authority to manage and control county schools in the county board of education. It harmonizes perfectly with repeated and consistent rulings of this court. Any challenge of acts of the county board relating to control and operation of schools must be weighed in the light of this sweeping power, which clearly manifests an intent to entrust the schools to the boards of education rather than the courts. Unless the act of a board violates some law, or is such a gross abuse of discretion as amounts to a violation of law, courts should not and can not interfere.

We fail to see how the school systems are violating any laws or abusing their discretion by offering the driver education course after hours and for a fee.

Our General Assembly, in promulgating the QBE Act, recognized the need to prepare Georgia’s youth to be productive citizens. Thus, the QBE Act requires public schools receiving state funding to provide students with “180 school days of education each fiscal year.” During these required school days, schools are compelled to teach students a core curriculum established by the State Board of Education, and because this basic education is funded by the state, “a local school system shall not charge resident students tuition or fees . . . as a condition of enrollment or full participation in any instructional program.”

But the QBE Act does not restrict schools to solely teaching core classes, tuition-free, during the regular school year. Indeed, the QBE Act specifically empowers local school boards to “expand and enrich [the core] curriculum to the extent it deems necessary and appropriate for its students and communities.” Such classes are designated as “enrichment courses,” and local school boards are “responsible for ensuring that [they] are properly planned, implemented, monitored, and evaluated to ensure the highest quality possible.” We believe that these statutes should be read to maximize the educational opportunities provided by the Act.

Likewise, the QBE Act authorizes local school boards to offer nontraditional educational programs. The Act characterizes these programs as “other educational programs not ordinarily coming within the prescribed curricula of the public schools,” and, if the state is not already offering the course, authorizes local boards to “implement such programs locally in accordance with criteria and standards prescribed by the state board.”

Most importantly, the QBE Act expressly encourages local boards to provide educational opportunities beyond the core curriculum offered during the required 180 school days even if they must charge tuition for the classes. Specifically, the QBE Act requires local boards to provide a “ ‘Summer Opportunity Program,’ to extend educational opportunities beyond the normal school year.” Although the Summer Opportunity Program is required to be offered, tuition-free, to students from kindergarten through eighth grade who have been held back or failed academic subjects, the legislature expressly decreed that “[l]ocal boards are encouraged to expand the Summer Opportunity Program through the use of local funds, tuition, grants, scholarships, Chapter I, and all other available funds to provide summer educational opportunities for all other students in the school system.” Such decree is consistent with “the policy of this state that every effort be made to utilize currently available educational facilities and equipment on a year-round basis.”

It is true that, under the State Board of Education Rules, a local school board may offer driver education as an elective course, for credit, during the school day. It also appears that driver education courses are eligible for state funding if the course is offered as part of the school’s curriculum during the school day. However, we are aware of no authority, and Taggart’s has cited none, which requires that this is the exclusive manner in which a local school board may offer driver education.

Rather, given that the school systems in this case receive no state funding and that the QBE Act specifically provides for tuition-based extracurricular courses, it does not appear that the legislature intended to prohibit local school boards from offering a driver education course to students for a fee after regular school hours. And, in light of the tremendous benefit a driver education course provides to students and the community, we can discern no reason why the legislature would have intended to prohibit a board from offering the class during the school year after regular school hours when it could offer the same class during the summer under the Summer Opportunity Program.

Thus, considering the authority provided to local school boards under the Act, in conjunction with the sweeping authority granted to boards under the Constitution, we do not believe that offering such a program violates any laws or constitutes a gross abuse of discretion. Accordingly, we conclude that the school systems’ operation of the course is not an ultra vires act, that the course does not violate the QBE Act, and that the trial court did not err in granting summary judgment to the defendants on this ground.

2. Taggart’s also asserts that because the school systems’ operation of the course is an ultra vires act, it constitutes unfair government competition. Inasmuch as we concluded in Division 1 that offering the course is not an ultra vires act, this assertion is without merit.

3. Taggart’s asserts that the school systems’ driver education course is unconstitutional because students must pay. a course fee. The assertion is based on Article VIII, Section I, Paragraph I of the Georgia Constitution of 1983, which provides that “[p]ublic education for the citizens prior to the college or postsecondary level shall be free and shall be provided for by taxation.” The free education guaranteed here, however, is “limited to the prescribed minimum educational requirements.” And, because the fee charged for the driver education course is “not a condition precedent for attendance during the statutorily provided nine-month term,” it is not unconstitutional. The constitutional guarantee of a free education “has no application to supplementary instruction offered by the school [systems] on a private basis during the summer recess or at special times. [Such classes] are both historically and logically not included in the free public school system required by our Constitution.” Accordingly, we do not find that the school systems are violating the Georgia Constitution by charging a fee for a driver education course which is not a part of the state’s required curriculum.

Judgment affirmed.

Johnson, P. J., concurs. Ellington, J., concurs in the judgment only.

Decided July 9, 2001

Wilson, Morton & Downs, Robert E. Wilson, Debra A. Golymbieski, for appellant.

Brock, Clay, Calhoun, Wilson & Rogers, Danny G. Brock, C. Latain Kell, John K Wells, David J. Larson, Caryl S. Black, for appellees.

       In its complaint, Taggart’s designated the Marietta City School District as the Board of Education of the City of Marietta and also sued Ronald Galloway in his capacity as Superintendent of Marietta City Schools.

       OCGA § 9-11-56 (c).

       See Moore v. ECI Mgmt., 246 Ga. App. 601 (542 SE2d 115) (2000).

       See OCGA § 20-2-130 et seq.

       (Emphasis supplied.) Keen v. Mayor &c. of Waycross, 101 Ga. 588, 590 (29 SE 42) (1897). See also Tift County Hosp. Auth. v. MRS of Tifton, Ga., Inc., 255 Ga. 164 (335 SE2d 546) (1985); Atlanta Metro Associated Plumbing Contractors v. Maloof, 259 Ga. 777 (386 SE2d 338) (1990).

       Ga. Const, of 1983, Art. VIII, Sec. V, Pars. I, II.

        Bedingfield v. Parkerson, 212 Ga. 654, 656 (1) (94 SE2d 714) (1956).

       See generally OCGA § 20-2-131 (stating objectives and purposes of the Act).

       OCGA § 20-2-168 (c) (1).

       See OCGA § 20-2-140.

       OCGA § 20-2-133 (a).

       OCGA § 20-2-140.

       See OCGA § 20-2-160 (defining “enrichment course” as “a course which does not dedicate a major portion of the class time toward the development and enhancement of one or more student competencies as adopted by the state board under Code Section 20-2-140”).

       OCGA § 20-2-242 (2).

       OCGA § 20-2-300.

       OCGA § 20-2-168 (f).

       See id.

       (Emphasis supplied.) Id.

       OCGA § 20-2-168 (e) (1).

       See State Board of Education Rules 160-4-2-.03; 160-4-2-.46.

       See OCGA § 20-2-160 (a), (b) (providing that student enrollment in a driver education course offered during the school day is a part of the calculation used to determine the amount of state funds appropriated to the local school system); see also OCGA § 20-2-257 (Supp. 2000) (providing that driver education programs are eligible for grants from the State Board of Education).

       Cf. OCGA § 20-2-168 (f) (encouraging school boards to charge tuition for educational opportunities offered during summer); Crim v. McWhorter, 242 Ga. 863 (1) (252 SE2d 421) (1979) (holding that summer school courses are not included in the free system of education under Georgia law and that school boards may therefore charge tuition for classes offered during the summer).

       Although it is clear that the school systems benefit from their tax free status and the use of school facilities, Taggart’s has not argued that such benefits constitute funding for the course.

       We offer no opinion as to whether a local school board may charge tuition for a driver education class offered during the school day. See 85-35 Op. Atty. Gen. 81 (1985).

       See generally OCGA § 1-3-1 (a) (stating that “[i]n all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly”).

        See Bedingfield, supra.

        Crim, supra at 865 (1).

       Id. at 866 (1).

        Granger v. Cascade County School Dist., 159 Mont. 516, 528 (499 P2d 780, 786) (1972) (quoted with approval in Crim, supra at 866).

       See Crim, supra.


text:
    A01A0735.
    PAGE v. THE STATE.
    (552 SE2d 99)
   Blackburn, Chief Judge.

A jury convicted Prece Page of theft by shoplifting and possession of tools to commit a crime. Due to his three prior shoplifting convictions, two of which were felonies, Page was sentenced as a recidivist. Following the denial of a motion for new trial, Page sought and obtained permission to file an out-of-time appeal. In this appeal, Page claims that his trial counsel rendered ineffective assistance, his confession should have been excluded, and the trial court should have sua sponte ordered a new trial when a potential juror purportedly saw him enter the courtroom from a holding area. He also contests the sufficiency of the evidence. After review, we affirm for the reasons set forth below.

On appeal the evidence must be viewed in a light most favorable to the verdict, and the appellant no longer enjoys the presumption of innocence. Walters v. State. Nor can the evidence be reweighed or witness credibility be reassessed. Id. at 658. When so viewed, the evidence established that Page drove a Nissan Maxima hatchback with two other individuals to a K-Mart store. While Page entered the store, his companions remained in the vehicle. As Page pushed a shopping cart loaded with household items toward an exit in the garden center, the cart bumped a merchandise display, knocking over several planters. When K-Mart cashier Mary Starnes made eye contact, Page abandoned his cart and while leaving activated the store security system. When the alarm sounded, Starnes yelled for him to stop. As Page ran, he clutched his side as though concealing something. No other person was in the area to activate the sensors. Several employees pursued Page as he raced across a parking lot and disappeared behind a Lowe’s store. Before proceeding behind Lowe’s building, Page had been attired in a dark colored suit and tie with a white dress shirt. After emerging from behind Lowe’s, Page was dressed only in slacks and a t-shirt. His companions picked Page up in the Nissan and then dropped him off at a nearby gasoline station. They were arrested when they returned to the K-Mart. When apprehended a short time later, Page, perspiring heavily, was identified by store employees. Behind Lowe’s, K-Mart employees found Page’s suit jacket, dress shirt, and tie. A Nissan key was in a pocket of the jacket. Five cartons of cigarettes were found and identified as property of K-Mart based on security tags.

After arresting all three men, investigators inventoried their vehicle and found a large plastic bag laden with sealed containers of Motrin, Advil, Tylenol, and other over-the-counter drugs behind the driver’s seat. Police also discovered a “booster bag,” a device commonly used to facilitate the evasion of theft detection sensors in retail stores. While in police custody, Page implicated himself in the theft of the cigarettes. Detective Chris Johnson testified that Page told him that while trying to take a shopping cart out the door of a K-Mart without stopping at the cash register, a store employee confronted him. Page admitted to the detective that he left the store with the cigarettes but denied taking the merchandise in the shopping cart.

1. Page contends that the evidence was not sufficient to sustain a conviction for the offense of possessing tools to commit a crime.

According to Detective Johnson’s uncontradicted testimony, a “booster bag” is a device lined with a substance like aluminum foil and is commonly used to facilitate shoplifting because it foils theft sensors from being set off. This “booster bag” was found in plain sight in the rear hatch area of the vehicle that Page was driving that day. It is undisputed that Page had control over the vehicle and had access to the rear of the vehicle where the “booster bag” was located. Thus, Page had at least joint constructive possession of the “booster bag.” Coleman v. State. Moreover, the car was positioned just outside the premises of a store from which Page admitted shoplifting several cartons of cigarettes. This same vehicle also contained a large plastic bag filled with numerous name-brand drugs from another retailer. From this evidence, a jury could conclude that Page had access to the “booster bag,” an article used to enable thieves to evade theft detection devices while shoplifting, and that Page had the power to exercise dominion and control over that booster bag. Shropshire v. State. Accordingly, the conviction must be affirmed under the standard of Jackson v. Virginia. See Coleman, supra.

2. Page contends that the evidence was insufficient to sustain the verdict of conviction for theft by shoplifting. We disagree. Page was seen approaching a store exit with a cart loaded with merchandise. When spotted by an employee, Page abruptly left, concealing underneath his suit coat several cartons of cigarettes which activated the security system. Page’s inexplicable conduct, his flight, his confession, the “booster bag” inside the vehicle he had been driving that day, and the discovery of the stolen cartons of cigarettes behind a nearby store that Page had darted behind, all constituted evidence of his guilt. Allen v. State.

3. Page asserts that the trial court erred in admitting a custodial statement that was taken in violation of his constitutional rights. He claims that the State failed to prove the existence of a valid waiver of his rights.

Unless clearly erroneous, a trial court’s findings as to factual determinations and credibility relating to the admissibility of a confession will be upheld. Gidden v. State. When a ruling on a suppression motion is being reviewed, the evidence must be construed most favorably toward the trial court’s findings and judgment unless they are clearly erroneous. Anderson v. State. During the Jackson-Denno hearing, Officer Kyle P. Honea testified that before the interview began, he had advised Page of the rights set forth in Miranda, using a card that he keeps with him for that purpose. Officer Honea testified that both he and Detective Johnson then asked questions but he had to leave before the completion of the interview. Honea expressed his certainty that he had read the card to Page, and he recalled that Johnson had been in the room at the time. Johnson, however, was unable to remember being present in the room while the warnings were read.

Although Page argues that the inconsistent recollections of the two officers points to “blatant testi-lying,” the trial court found otherwise. Notwithstanding a detailed recitation by defense counsel that focused on inconsistencies and omissions in a police report and that emphasized conflicts in the testimony of the two interrogating officers, the trial court noted:

Well, certainly it would be nice if you didn’t have these conflicts but these officers do a lot of cases. Apparently, they haven’t reviewed their notes prior to testifying, nor has the D.A. But in any event, the evidence is undisputed that he was properly advised of his Miranda rights and it was voluntary. He hasn’t contradicted it himself, so I’m going to find the statement is admissible.

Decided July 9, 2001.

Lee W. Fitzpatrick, for appellant.

During the Jackson-Denno hearing, the trial court was the trier of fact and was in the best position to judge the credibility of witnesses. No evidence was offered to controvert the officer’s testimony that Page was, in fact, advised of his constitutional rights and freely waived those rights. We cannot say that the trial court clearly erred in finding the statement admissible. See Gidden v. State, supra.

4. Page claims that the trial court erred by refusing to order a new trial when a potential juror saw him enter the courtroom from a holding area.

After being sentenced, Page informed the trial court that he felt his case was “tainted” because “one of the jurors in the back may have seen me come from the back with my attorney.” The trial court pointed out that the person had been a prospective juror and that Page had not been in “jail clothes” or in handcuffs. The court noted for the record that while Page may have been seen coming from the holding area, “it’s a wooden, brown door and there’s nothing about it that identifies it as a holding area.” Page admitted that neither he nor his lawyer had requested that anyone be questioned about the issue prior to the conclusion of voir dire. Page cannot now complain about what he failed to timely raise to the trial court. See Gann v. State.

5. Page contends that his trial counsel rendered ineffective assistance by failing to preserve the preceding issues.

To establish an ineffective assistance of counsel claim, an appellant must show not only that his trial counsel’s performance was deficient but also that the deficient performance prejudiced his defense. Rucker v. State. Failure to satisfy either requirement is fatal to an ineffectiveness claim. Brewer v. State. But here, the sole issue not properly preserved was the alleged juror incident discussed above. Even had the issue not been waived, it plainly lacks merit. In any event, Page’s failure to establish how the incident prejudiced him is fatal to this claim. Id. at 658.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

Garry T Moss, District Attorney, Scott T. Poole, Assistant District Attorney, for appellee.

        Walters v. State, 244 Ga. App. 657 (538 SE2d 451) (2000).

        Coleman v. State, 229 Ga. App. 642, 643 (494 SE2d 549) (1997).

        Shropshire v. State, 201 Ga. App. 421, 422 (411 SE2d 339) (1991).

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

        Allen v. State, 197 Ga. App. 3, 4 (1) (397 SE2d 472) (1990).

        Gidden v. State, 234 Ga. App. 268 (506 SE2d 448) (1998).

        Anderson v. State, 224 Ga. App. 608, 610 (1) (481 SE2d 595) (1997).

        Gann v. State, 245 Ga. App. 448 (1) (538 SE2d 97) (2000).

        Rucker v. State, 268 Ga. 406, 407 (2) (489 SE2d 844) (1997).

        Brewer v. State, 224 Ga. App. 656, 657-658 (2) (481 SE2d 608) (1997).


author: Mikell, Judge.

text:
    A01A1488.
    PATTEN v. THE STATE.
    (552 SE2d 110)
   Mikell, Judge.

Matthew Patten appeals the trial court’s denial of his motion for discharge and acquittal. For the reasons that follow, we affirm.

Patten was indicted on April 3, 2000, for two counts of felony obstruction of a law enforcement officer. One week later, Patten mailed a pro se demand for speedy trial addressed to “Superior Court o/ DeKalb, DeKalb County Court Clerk.” The demand was misdirected to the court administrator’s office, where it was received on April 14. Next, on May 18, Patten mailed a demand for a speedy indictment in an envelope addressed to the superior court and to the “solicitor.” A second demand for a speedy trial was enclosed. The envelope was stamped “received” on May 19 by the “Front Desk.” Patten was arraigned on July 6, 2000, and was released on bond. On August 16, he filed a motion seeking a discharge and acquittal pursuant to OCGA § 17-7-170 because he was not tried within the term of court succeeding his speedy trial demand. He has yet to be tried.

At the hearing held on the motion, defense counsel conceded that Patten’s speedy trial demand was never stamped filed by the superior court clerk’s office but argued that Patten should not be penalized for failure to ensure that the document he mailed was filed in the correct office. The prosecutor admitted that the district attorney’s office had received the demand. In denying Patten’s motion, the trial court ruled that the prosecutor’s receipt of the demand did not excuse Patten’s failure to file. We agree.

OCGA § 17-7-170 (a) states a demand for trial “shall be served on the prosecutor and shall be binding only in the court in which the demand is filed.” The proper method of filing a pleading in a criminal case is outlined in OCGA § 17-1-1 (d), which directs that “[t]he filing of pleadings and other papers with the court shall be made by filing them with the clerk of the court.” In the civil context we have held: “A paper is said to be filed when it is delivered to the proper officer, and by him received to be kept on file, and a certificate of the clerk, entered upon the paper at the time it is filed, is the best evidence of such filing.” (Citations and punctuation omitted.) Brown v. Webb, 224 Ga. App. 856, 857 (482 SE2d 382) (1997). However, “where a pleading has been delivered for filing to the clerk, it will be deemed filed even though that officer fails to make the proper entry of filing thereon.” (Citations and punctuation omitted.) Lavan v. Philips, 184 Ga. App. 573, 574 (362 SE2d 138) (1987).

Decided July 9, 2001.

Corinne Mull-Milsteen, for appellant.

J. Tom Morgan, District Attorney, Jennifer M. Daniels, Assistant District Attorney, for appellee. -

In this case, the demand for trial was not “delivered for filing to the clerk.” Rather, the trial court found that the demand was delivered to the court administrator’s office. Moreover, there is no evidence that the demand was ever received in the clerk’s office. A trial court’s findings of fact will not be disturbed unless they are clearly erroneous. Johnson v. State, 203 Ga. App. 896, 897 (3) (418 SE2d 155) (1992). The evidence supports the trial court’s finding that the demand for trial was not filed in the clerk’s office. Accordingly, we must affirm the denial of the defendant’s motion to acquit him of the offenses for which he was charged.

Defense counsel argues that Patten took all reasonable measures to assure receipt by the clerk’s office. However, substantial compliance with OCGA § 17-7-170 is insufficient to trigger a discharge and acquittal. “The dismissal of a criminal case pursuant to OCGA § 17-7-170 is an extreme sanction which can be invoked only if there has been a strict compliance with the statute.” Carter v. State, 226 Ga. App. 198 (486 SE2d 79) (1997); accord Maddox v. State, 218 Ga. App. 320, 322 (1) (461 SE2d 286) (1995).

Judgment affirmed.

Blackburn, C. J., and Pope, P. J., concur.

       The record shows that one of the officers has undergone two shoulder surgeries.

       The prosecutor has attached an affidavit to her brief stating that she was unaware of the demand until the arraignment; however, attachments that were not included in the record below cannot be considered on appeal. Jones v. State, 224 Ga. App. 340, 341 (2) (480 SE2d 618) (1997).

       The trial court also found that the demand for a speedy indictment was a nullity as Patten had already been indicted. No ruling was made as to the validity of the second demand for trial; it is not challenged on appeal; and we express no opinion thereon.


text:
    A01A1570.
    MATHIS v. THE STATE.
    (552 SE2d 97)
   Mikell, Judge.

After a jury trial, Amelia Mathis was convicted of misdemeanor obstruction of a law enforcement officer. On appeal, Mathis argues that the trial court’s denial of her motion for directed verdict constitutes error. We affirm.

“On appeal, the standard of review for denial of a motion for directed verdict is the same as that for determining the sufficiency of the evidence to support a conviction. The issue is whether, based on the evidence presented, a rational finder of fact could have found the accused guilty of the charged offenses beyond a reasonable doubt.”

The state’s evidence showed that on March 26, 2000, Richmond County Sheriff’s Office Investigator Darrell Hamilton was working as an off-duty security officer at the Millennium Night Club. Officer Hamilton’s duties included maintaining order, checking identification, checking for weapons at the door, and helping to close the club. Though he was paid by the owner of the club, he wore his police uniform while working at the club.

At approximately 1:30 a.m., the disc jockey announced that the club was closing and the lights were turned on. Officer Hammond testified that he advised everyone three times that the club was closed and that they should exit through the front door before he approached the table at which Mathis sat. After advising Mathis and her friends two more times to exit the building, he told them that they might be arrested if they did not leave. Officer Hamilton testified that Mathis said that “she didn’t mind going to jail.” Officer Hamilton then advised Mathis that she was under arrest. He testified that because Mathis refused to leave, he planned to charge her with a violation of the county ordinance that prohibited disorderly conduct.

As Officer Hamilton attempted to arrest Mathis, she snatched her hand away and slapped him. A struggle ensued as Officer Hamilton tried to handcuff Mathis. Because she struck him, Officer Hamilton charged Mathis with obstruction of a law enforcement officer.

On appeal, Mathis argues that her motion for directed verdict should have been granted because the state could not prove the elements of obstruction of a law enforcement officer without admitting a certified copy of the county ordinance concerning disorderly conduct. We disagree.

“It is not necessary for the State to prove the underlying offense that causes the officers to act; it is only necessary to prove the elements of the obstruction statute, i.e., that the act constituting obstruction was knowing and wilful, and that the officer was lawfully discharging his official duties.” In this case, Mathis slapped the officer while he attempted to arrest her for refusing to leave the premises. Thus, there is no question that her conduct was knowing and wilful. We note that Mathis testified that she did not refuse to leave the club or slap the officer. However, we are required to “view the evidence in the light most favorable to the jury’s verdict and . . . [can]not weigh the evidence or determine witness credibility.”

As to the remaining element of obstruction, that the officer was engaged in the lawful discharge of his official duties, the evidence showed that one of Officer Hamilton’s duties was to assist in the club’s closing. We have previously held that when an officer, who worked as a bouncer at a bar, escorted out and physically ejected a patron who refused to leave the bar at closing time, he was lawfully discharging his official duty to maintain peace and order. This case does not warrant a different result. Here, Officer Hamilton repeatedly asked Mathis to exit the club, but she refused to comply. “An act directly tending to interfere with, interpose obstacles or impediments, hinder, impede, interrupt in any manner, or prevent or pervert the public administration of justice constitutes obstruction of the police in performing their lawful duty.” Accordingly, the evidence in this case was sufficient to support the jury’s verdict.

Mathis relies on Woodward v. State in support of her argument that the state did not prove the latter element of obstruction. In Woodward, also an obstruction case, the defendant was arrested while writing a note to the sheriff as she stood at the clerk’s window in a public building. Earlier that day, the defendant had exhibited belligerent conduct during a telephone conversation with a deputy. We found that the deputy’s arrest of the defendant was unlawful for several reasons: (1) she was in a public building; (2) she did not present a security threat; (3) her presence in the building was lawful; (4) she had not been told not to enter this particular area; and (5) the deputy had no authority to demand that she leave the premises. Woodward is distinguishable from this case. Unlike the defendant in Woodward, Mathis was in a private establishment, she had been instructed to leave the building several times to no avail, and Officer Hamilton was authorized to demand that she leave the building.

Decided July 9, 2001.

Charles H. S. Lyons III, Paul W. David, for appellant.

Sheryl B. Jolly, Solicitor-General, Elizabeth K. Brooks, Assistant Solicitor-General, for appellee.

Mathis argues that we should apply to the instant case our finding in Woodward that the state was required to provide a certified copy of the ordinance so that the jury could determine whether the defendant’s arrest for disorderly conduct was lawful. Mathis’ argument is incorrect. In Woodward, in the absence of the ordinance, there was no evidence that the officer was lawfully discharging his duties when he arrested the defendant. In this case, however, there was sufficient evidence that Mathis was interfering with Officer Hamilton’s duty to clear the club of its patrons, which led to her arrest.

Finally, we note that the admission of the ordinance is not the only means by which the state can prove that an officer lawfully discharged his duties in an obstruction case. We have previously held that testimony that a defendant violently resisted arrest for violating a local noise ordinance was sufficient to authorize a finding of obstruction, even though the ordinance was not admitted into evidence. Also, in In the Interest of J. T., we held that since the local ordinance was not introduced, the question became whether there was sufficient evidence that the officer was in the lawful discharge of his duties. Because we find that the evidence was sufficient to support a finding that Mathis was guilty of obstruction of a law enforcement officer, we affirm.

Judgment affirmed.

Blackburn, C. J, and Pope, P. J., concur.

       OCGA § 16-10-24.

       (Punctuation and footnote omitted.) Hash v. State, 248 Ga. App. 456, 457 (1) (546 SE2d 833) (2001).

       (Citations omitted.) Whaley v. State, 175 Ga. App. 493, 494 (333 SE2d 691) (1985).

        Yarbrough v. State, 241 Ga. App. 777, 780-781 (4) (527 SE2d 628) (2000).

        Duncan v. State, 163 Ga. App. 148, 149 (1) (294 SE2d 365) (1982).

       (Citations and punctuation omitted.) Ballew v. State, 245 Ga. App. 842, n. 1 (538 SE2d 902) (2000).

       219 Ga. App. 329 (465 SE2d 511) (1995).

       Id. at 330 (1).

       Id.

       See In the Interest of J. T., 239 Ga. App. 756, 758 (521 SE2d 862) (1999).

        Whaley, supra; see also Onwuzuruoha v. State, 217 Ga. App. 645, 646 (458 SE2d 675) (1995).

       Supra.