author: Andrews, Presiding Judge.

text:
    A01A0476.
    In the Interest of B. C. et al., children.
    (550 SE2d 707)
   Andrews, Presiding Judge.

The mother of B. C. and S. N. C. appeals from the juvenile court’s order terminating her parental rights. She claims there was insufficient evidence to support the termination and also claims that it was error to terminate her rights to B. C. without a separate reunification plan. For the reasons which follow, we affirm in part and reverse in part.

Before terminating a parent’s rights, a juvenile court, pursuant to OCGA § 15-11-94 (a), must employ a two-step procedure. In the Interest of C. L. R., 232 Ga. App. 134 (1) (501 SE2d 296) (1998).

First, the court shall determine whether there is present clear and convincing evidence of parental misconduct or inability as provided by OCGA § [15-11-94 (b)]. Secondly, if there is clear and convincing evidence of such parental misconduct or inability, the court shall then consider whether termination of parental rights is in the best interest of the child. Parental misconduct or inability is found where (1) the child is deprived, (2) the lack of proper parental care or control by the parent in question is the cause of the child’s deprivation, (3) the cause of deprivation is likely to continue or will not likely be remedied, and (4) the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child. OCGA § [15-11-94 (b) (4) (A)].

(Citations and punctuation omitted.) Id.

On appeal, we must determine

whether, after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s right to custody should be terminated. . . . [T]his Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the trial court’s factfinding and affirm unless the appellate standard is not met.

(Citations and punctuation omitted.) In the Interest of C. L. R., supra.

The evidence in the record, viewed in the light most favorable to the juvenile court’s judgment, was as follows. The first deprivation petition was filed on April 1, 1997, by Donna and Harold Walls, who were guardians of the mother. S. N. C. was only three months old at the time, and the mother and her husband were living with the Wallses off and on after S. N. C. was bom. In the petition, the Wallses stated that the parents were homeless and unemployed, had no means of caring for the child, and left S. N. C. in the Wallses’ care for long periods of time without telling the Wallses where they could be reached.

At the hearing, the Wallses testified that the mother and her husband did not care for the child or provide any of the necessities for her. They also said that the mother was emotionally unstable and had to be hospitalized recently for taking an overdose of medication.

The mother testified at the hearing and said she was unemployed. She admitted that she could not take care of S. N. C. at that time. The juvenile court granted custody of S. N. C. to the Wallses and ordered the mother to visit with S. N. C. on Mondays and Thursdays, to be at the Wallses’ home on weekends to visit the child and receive parenting instructions, obtain employment, open a checking account, and enroll in counseling.

The Butlers, S. N. C.’s grandparents, moved to intervene and requested custody. On August 28, 1997, the court heard evidence on the motion. At the time of that hearing, the mother was in jail. She had not complied with the juvenile court’s previous order and had already been in jail for a month and a half of a five-month sentence. She was allowed to attend the hearing, and when asked if she had fulfilled the requirements ordered by the court at the last hearing, she replied, “No.” The juvenile court then transferred custody of S. N. C. to the Butlers.

After the hearing, the court issued an order finding that the mother had not complied with the requirements set out in the previous order and adding the additional requirement that she pay $35 a week child support. In addition, the court ordered the Henry County Department of Family & Children Services (DFACS) to develop a reunification plan for the parents.

On September 8, 1999, the court held another hearing and extended the temporary custody order on S. N. C. The court also found that B. C., who was ten months old, was deprived. At that hearing, the mother was again in jail and was not present. The court gave the Butlers custody of B. C. and stated that it would “reserve the issue of visitation and support until [the mother] gets out of jail” and her lawyer had “an opportunity to file for a re-hearing concerning the question of deprivation.”

But, on November 8, 1999, only two months later, the Butlers filed a petition to terminate the mother’s parental rights to both S. N. C. and B. C. The court held a hearing on the termination petition on January 28, 2000.

At the hearing, Mrs. Butler testified that the mother did not comply with the court’s original order that she visit S. N. C. and had made only one of the court-ordered child support payments. With regard to B. C., the evidence was that the mother took care of him for some period of time right after he was born. In November 1998, the father filed for divorce and was given custody of B. C. But, after the divorce, the parents lived together, and the mother again took care of B. C. for a period of time. In July 1999, Mrs. Butler became concerned about the living conditions at the house where the parents were staying and brought B. C. to her home.

The mother testified that she was currently working at Shoney’s. She said she worked there a month before her latest baby was born and had just gone back for two days. She claimed she had not talked to or visited the children more because Mrs. Butler made her feel unwelcome or prevented it. She admitted she had been in jail within the last year for violating her probation. She was on probation for stealing a truck and also on a bad check charge. She testified that she had divorced the children’s father, who gave up his parental rights, but was now living with him again. She was not sure if he was the father of her latest baby.

The mother admitted that she had not taken care of S. N. C. when she was a baby and avoided her because she was “scared of her.” Also, she stated that she did not want to take care of a baby because she wanted to do what people her age were doing. She admitted she had made only one child support payment and also stated that she was unable to pay anything at the time of the hearing. She. claimed Mrs. Butler told her that she “didn’t want [her] money.”

The mother said she and her former husband were now living in a trailer and had a six-month lease. Although she had not opened her own checking account, her former husband had put her name on his checking account. She said there was no money in the checking account at the moment. She claimed she had a psychological evaluation but did not have a copy of the results to give to the court.

The mother also stated that she went to parenting classes the previous November. She acknowledged that she had visited with the children only about twelve times in the past two and a half years, but claimed that Mrs. Butler made it difficult for her to visit or talk to the children on the phone. The mother claimed she had matured and was trying to be a better parent.

The guardian ad litem recommended termination as being in the best interests of the children. He said he believed the mother was trying to turn her life around but he was concerned about her two arrests after the start of the case plan and her failure to comply with the court’s order on visitation and child support, among others.

1. We first address the mother’s claim that the juvenile court erred in terminating her parental rights to B. C. when no case plan for reunification had been put in place. She points out that her rights were terminated only two months after the deprivation petition for B. C. was filed.

At the time of the deprivation hearing on B. C., the mother was in jail and did not attend. Visitation and support issues were not addressed, and the mother was to “file upon [her] release.” But, almost immediately after the deprivation order was entered, the petition for termination was filed. No reunification order or case plan was ever entered.

As the mother points out, OCGA § 15-11-58 (a) (2) provides that “reasonable efforts shall be made to preserve and reunify families.” In addition, OCGA § 15-11-94 (b) (4) (C) provides additional factors for a trial court to consider in those situations where the child is not in the custody of the parent whose rights are subject to termination. One of these factors is whether the parent

has failed significantly for a period of one year or longer prior to the filing of the petition for termination of parental rights: (i) [t]o develop and maintain a parental bond with the child in a meaningful, supportive manner; (ii) [t]o provide for the care and support of the child as required by law or judicial decree; and (iii) [t]o comply with a court ordered plan designed to reunite the child with the parent or parents.

This Court has held that compliance with subparagraph (b) (4) (C)’s requirements is not mandatory. In the Interest of A. M. B., 219 Ga. App. 133, 136 (464 SE2d 253) (1995). In In the Interest of A. M. B., the court terminated the parents’ rights when the reunification plan had been in place a “few months” less than a year. Id. at 133. This Court held that the juvenile court was not required, under the circumstances in that case, to make “DFACS continue its efforts for another few months” before terminating the parents’ rights. Id. at 137. Likewise, in In the Interest of J. W. H., 245 Ga. App. 468 (538 SE2d 112) (2000), we again rejected a parent’s claim that the juvenile court erred in terminating his rights when the case plan had been in effect for only seven months. Id. at 473-474.

But, in this instance there was no reunification plan ever put in place after B. C. was found to be deprived. Moreover, the order finding him to be deprived was entered on September 22, 1999, and the petition to terminate parental rights was filed on November 3, 1999. Even if the mother had not been in jail at the time of the deprivation hearing, this left virtually no time for her attorney to file any motions requesting visitation or a case plan for reunification.

Accordingly, we conclude that under the mandate of OCGA § 15-11-58 (a) (2) the juvenile court was required to set out a plan for reunification and give the mother the opportunity to meet those goals. Because the juvenile court failed to do so, we reverse the juvenile court’s order terminating the mother’s parental rights to B. C.

2. In her next enumeration, the mother argues the juvenile court erred in terminating her parental rights because there was not sufficient clear and convincing evidence that the deprivation was likely to continue or was in the best interests of the children. She acknowledges that she did not comply with the court’s orders or meet the goals set by the court for reunification with S. N. C., but argues that she had made significant progress toward meeting the goals and was trying “to right her ship.”

In determining whether conditions of deprivation are likely to continue, the court may consider the past conduct of the parent. In the Interest of J. M. C., 201 Ga. App. 173, 174 (410 SE2d 368) (1991). In this case, there was not only evidence of past unfitness, there was present unfitness also. Blackburn v. Blackburn, 249 Ga. 689, 692 (292 SE2d 821) (1982). The mother acknowledged that she had no money at the time of the hearing, and it was unclear whether there was room for the children in the trailer she had rented. She was living with S. N. C.’s father, but he had already voluntarily surrendered his parental rights to the child.

At the time of the termination hearing, S. N. C. was three years old, and the mother, by her own admission, had never taken any responsibility for her. She had not complied with the court-ordered visitation and had seen the child only sporadically during the three years. She had made only one $35 child support payment. In addition, the mother had been arrested for passing a bad check, stealing a truck, and violating probation. Also, the guardian ad litem had recommended termination.

In light of the mother’s failure to make any meaningful progress toward complying with the court-ordered goals for reunification, the juvenile court correctly concluded that there was clear and convincing evidence that the pattern of deprivation was likely to continue and to cause harm to S. N. C.

If the first prong of the test is met, the trial court then considers whether termination of the parental rights is in the child’s best interest. In the Interest of R. N., 224 Ga. App. 202 (480 SE2d 243) (1997). In looking at the second prong, the court may consider the child’s need for a stable home environment and the detrimental effects of prolonged foster care. In the Interest of J. M. C., supra at 175. The court may also look at the same factors which show parental inability to care for the child to support a finding that termination of parental rights would be in the child’s best interest. In the Interest of G. K. J., 187 Ga. App. 443, 444 (370 SE2d 490) (1988). The same evidence showing parental misconduct may, and in this case does, satisfy this requirement. In the Interest of C. L. R., supra at 138.

Decided June 20, 2001.

Mathias Skowranek, for appellant.

Harrison & Harrison, Ann K. Miller, for appellee.

Accordingly, S. N. C.’s need for a stable home environment, the mother’s past unfitness to care for her, and the mother’s failure at the termination hearing to show any meaningful compliance with the court’s reunification requirements were sufficient clear and convincing evidence that termination was also in the best interest of the child. In the Interest of J. M. C., supra; In the Interest of T R. G., 162 Ga. App. 177 (290 SE2d 523) (1982).

Judgment affirmed in part and reversed in part.

Eldridge and Miller, JJ, concur.

       The children’s father had already surrendered his parental rights.

       In light of our holding in Division 1, we address this issue only as it applies to S. N. C.


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A01A0406.
    FIVE FORKS, LLC v. DEPARTMENT OF TRANSPORTATION.
    (550 SE2d 715)
   Ruffin, Judge.

Five Forks, LLC (“Five Forks”) held an option to purchase a parcel of land. Over two years after the option expired, the Georgia Department of Transportation (“DOT”) filed a petition to condemn the property. In the condemnation proceedings, Five Forks asserted that, based on the purchase option, it had a compensable interest in the property. Finding that the option had expired more than two years before the taking, the trial court granted DOT’s motion for summary judgment against Five Forks. Five Forks appeals, and 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. Five Forks is a commercial real estate development company owned by William Gryboski and Daniel Howe. On October 8, 1996, Five Forks paid $1,000 for a 90-day option to purchase 1.51 acres of land (the “property”) located at an intersection in Rome, Georgia, from Echota Realty Company (“Echota”) for $375,000. Five Forks and Echota subsequently agreed to extend the option until February 28, 1997.

Five Forks intended to build a drug store on the property and submitted a proposal to Eckerd Drugs. Because Five Forks needed permission from DOT for a driveway permit for improved access to the property, on December 11, 1996, a company representative contacted DOT’s district access management engineer, Jerry Hackney. Hackney looked into the matter, and at some point prior to December 17,1996, he informed Five Forks that DOT had a road widening project planned for the intersection where the property was located and that he would therefore need to send the permit request to Atlanta for comments.

On December 20, 1996, Eckerd Drugs accepted Five Forks’ proposal to develop a drug store on the property. The next day, Five Forks initiated a four- to eight-week process of preconstruction planning. According to Gryboski, during this time the company had plans drawn, obtained soil and environmental reports and loan approvals, and negotiated a lease with Eckerd Drugs.

Meanwhile, Hackney obtained preliminary plans for the DOT road widening project. After reviewing the plans, Hackney contacted Five Forks and notified the company that the DOT project “was going to impact the property tremendously, since [one of the roads] was going to [be] . . . relocated through the middle of the property.” Based on this information, Hackney informed Five Forks that DOT could not issue the permit but would meet with Five Forks and other interested parties on January 9, 1997, to discuss the matter.

At the meeting, Hackney reiterated that, because the road widening project was still in the planning stages, DOT could not issue the permit. According to Howe, there was so much uncertainty surrounding the road project that DOT could not tell him “where exactly the road was going, when it was going to . . . happen, [or] whether it was ever going to happen.” In fact, Howe testified in his deposition that DOT informed him that “they didn’t even have funding yet,” and DOT’s district access management supervisor confirmed in his deposition that as of the meeting date, “funds were not in place.” Due to the uncertainty surrounding the project and Five Forks’ desire to move forward, Hackney told the developer that it could submit plans to DOT, but that “nothing [may come] of it.”

Shortly thereafter, Five Forks submitted its plans to DOT and requested “preliminary approval on the . . . driveway location.” In a letter dated January 15, 1997, DOT responded to the request stating that the driveway location was acceptable, that certain modifications needed to be made, that additional plans needed to be submitted, and that the “location and design of [the] drive may be affected by the future reconstruction of [the intersection].” The letter further stated that “[a] commercial driveway permit can only be issued if application [sic] with plans are accompanied by a building permit or letter granting permission to build from the City of Rome.” Finally, the letter provided that “[t]his agreement is for 6 months from the date of this letter.” The following day, Five Forks notified DOT that it would comply with the driveway modifications required by the letter.

Approximately three weeks later, on February 10, 1997, DOT wrote Howe, informing him that DOT had finalized plans for the road widening project and that the department thus would not be able to issue the driveway permit. On February 28, 1997, Five Forks’ option to purchase the property expired, and Echota decided not to grant any further extensions. On June 15, 1999, DOT petitioned to condemn the property and paid the estimated compensation for the taking into the court’s registry.

Based on these facts, the trial court properly granted summary judgment to DOT. It is well established that “losses occurring to property before the actual date of taking are not compensable in direct condemnation actions.” The date of taking in a direct, formal condemnation case is “the date on which compensation is tendered or paid to the landowner.” In this direct condemnation case, the date of taking was June 15, 1999, the date DOT deposited the estimated compensation into the court’s registry. It is undisputed that Five Forks’ option to purchase the property expired more than two years before DOT condemned the property. Accordingly, we find no merit in Five Forks’ argument that it was the equitable owner of an interest in the land at the time of condemnation. Similarly, all of Five Forks’ alleged business losses occurred more than two years prior to the date DOT filed its petition. Even if Five Forks suffered a previous taking by inverse condemnation by the DOT, it cannot recover damages for such taking in this direct condemnation action because they were “ ‘not a consequence of the instant taking.’ ” Instead, it is undisputed that all the damages alleged by Five Forks were caused by the anticipation that the property would be condemned at some point in the future.

Decided June 21, 2001.

Peterson & Harris, Jim N. Peterson, Jr., Philip L. Young, for appellant.

Thurbert E. Baker, Attorney General, R. O. Lerer, Senior Assistant Attorney General, Shaw, Maddox, Graham, Monk & Boling, Daniel M. Roper, for appellee.

Judgment affirmed.

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

       OCGA § 9-11-56 (c).

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

       The parties agreed to two extensions, the first one expiring on January 15,1997, and the second one expiring on February 28, 1997.

        Josh Cabaret, Inc. v. Dept. of Transp., 256 Ga. 749 (3) (353 SE2d 346) (1987) (losses suffered by business owner that abandoned leasehold interest in property based on anticipated condemnation were not compensable because they “did not result from an exercise of eminent domain”). See also Thompson v. Dept. of Transp., 209 Ga. App. 353 (1) (433 SE2d 623) (1993) (withdrawn offer to purchase property based on anticipated condemnation did not give rise to compensable loss); Collins v. MARTA, 163 Ga. App. 168, 170 (6) (291 SE2d 742) (1982) (landowner who was unable to rent houses on his property due to anticipated condemnation did not suffer compensable loss).

        Shealy v. Unified Govt. of Athens-Clarke County, 244 Ga. App. 853, 855 (537 SE2d 105) (2000). Compare Hulsey v. Dept. of Transp., 230 Ga. App. 763, 765-766 (2) (498 SE2d 122) (1998) (ruling that in inverse condemnation case, where property is allegedly taken for roads and “continuous governmental activity” in road construction caused siltation of owner’s lake, date of taking was time when “ ‘damaging activity [had] reached a level which substantially interfere[d] with the owner’s use and enjoyment of his property5 ”).

       See OCGA § 32-3-7.

       Cf. DeKalb County v. Fulton Nat. Bank of Atlanta, 156 Ga. App. 253 (1) (274 SE2d 649) (1980) (lease and purchase option in force at time of taking).

       See Simmons v. Krall, 201 Ga. App. 893, 894 (1) (412 SE2d 559) (1991) (recognizing that purchaser of property under contract at time of taking is equitable owner and entitled to proceeds arising from condemnation proceedings).

        Shealy, supra.


text:
    A01A0479.
    LANE v. THE STATE.
    (549 SE2d 468)
   Ruffin, Judge.

A jury found Vartis Lane guilty of child molestation. Lane moved for a new trial, claiming that he did not receive effective assistance of counsel and that the trial court erroneously charged the jury. The trial court denied the motion following a hearing, and Lane appeals. For reasons that follow, we affirm.

The record establishes that, on July 21,1999, the eleven-year-old victim visited the home where Lane lived with his sister, the sister’s husband, and the couple’s three children. The victim testified that during the visit, Lane pulled her into a bedroom, closed the door, forced her onto a mattress, and began kissing her. Although the victim tried to push him away, Lane raised her shirt, pulled her pants and panties to her ankles, and tried, unsuccessfully, to have intercourse with her. Lane then ejaculated, and the victim saw him wipe his legs and “private area” with “something red or burgundy,” which he “just threw . . . down somewhere.”

Later that evening, the victim described the encounter to her mother and grandmother, who called the police. The victim told the responding police officer that Lane had wiped himself with a “red towel or sweater.” Lieutenant Raymond Drennon and another officer subsequently went to the home where the incident occurred and found Lane, Lane’s sister, and the sister’s husband there.

Drennon spoke with Lane’s sister and determined that she owned the home. He then asked permission to search the residence for the red item described by the victim. According to Drennon, Lane’s sister consented to the search, and he walked down a hallway. As he looked into the first bedroom from the hallway, he saw a red shirt lying on the floor. He seized the shirt and submitted it to the crime laboratory, which concluded that seminal fluid detected on the shirt “came from [Lane] or his identical twin.”

1. Lane first contends that his trial counsel was ineffective in failing to file a motion to suppress the red shirt, which, according to Lane, was seized during an “unlawful search.” Following the hearing on the motion for new trial, the trial court rejected this claim. We review the trial court’s decision under the clearly erroneous standard.

To succeed on an ineffective assistance of counsel claim, Lane must show that his trial counsel’s performance was deficient and that the deficient performance prejudiced his defense. We have noted that

the mere failure to file a suppression motion does not constitute per se ineffective assistance of counsel. For example, it is not deficient to fail to file a motion which is frivolous. Even if a deficiency did result from trial counsel’s failure to file a motion to suppress, [Lane’s] burden is to make a strong showing that if trial counsel had made a motion to suppress, the damaging evidence would have been suppressed.

Lane’s trial counsel testified at the new trial hearing that he considered filing a motion to suppress and discussed the possibility with Lane. He ultimately determined that the motion would be futile, in part because Lieutenant Drennon reported that Lane’s sister consented to the search. Lane argues on appeal that his sister could not have authorized Drennon to search the bedroom where the shirt was seized because “an uncontroverted landlord/tenant relationship existed between himself and his sister as to [that] bedroom.” In short, he claims that her authority to consent did not extend to the bedroom.

Evidence presented at the hearing showed that Lane rented the bedroom from his sister for $60 to $80 per week. Lane’s sister testified that the room, which had been her son’s bedroom, became Lane’s “private room” when he started paying rent. Nevertheless, she kept her children’s clothes and toys in the room and entered freely when Lane was not there. When Lane was in the room, she knocked on the door and asked to enter.

The State argues that the sister’s free access to the bedroom gave her common authority over the premises, allowing her to consent to the search. We need not decide, however, whether Lane’s sister had common authority over the bedroom because “the evidence available to [Drennon] at the time of the search justified one of reasonable caution in the belief that the consenting party [Lane’s sister] had authority of the premises.” A warrantless search may be upheld “if the law enforcement officer conducting the search reasonably (albeit erroneously) believed the consent given was valid.”

Drennon testified that, at the time of the search, he did not know Lane lived at the residence. When he arrived at the scene, he spoke with Lane’s sister, who stated that the residence belonged to her and her husband. After telling Lane’s sister about the reported incident, Drennon requested permission to look for the red shirt or towel. According to Drennon, “I told her what we were looking for. And I said, ‘[d]o you have any problem with us looking?’ And she said, ‘[n]o. Go ahead.’ ” Drennon testified that neither the sister’s husband nor Lane objected to the search, although both were present.

The evidence shows that Drennon did not know Lane lived at the residence; determined that Lane’s sister owned the home; obtained her consent to search; and heard no objection from Lane, who was present when Lane’s sister gave consent. Under these circumstances, Drennon “could reasonably believe [Lane’s] sister had full control of her premises and authority to permit the search of it, including the bedroom” where the seized shirt was found.

Decided May 17, 2001

Reconsideration denied June 22, 2001

L. Clark Landrum, for appellant.

Lane has not made the requisite “strong showing” that the red shirt would have been suppressed had trial counsel made a timely motion. Accordingly, the trial court did not clearly err by rejecting Lane’s ineffective assistance of counsel claim.

2. Lane also challenges the trial court’s jury instruction on the lesser included offense of sexual battery. The trial court instructed: “[I]f you do not believe beyond a reasonable doubt that [Lane] is guilty of child molestation as charged earlier, you may consider the lesser, included offense of sexual battery. And if you find him guilty of sexual battery, then in that event, you should so specify in your verdict.” Lane argues that this charge effectively required the jury to acquit him of the greater offense of child molestation before considering the lesser offense of sexual battery. We disagree.

In Cantrell v. State, our Supreme Court condemned the practice of requiring jurors to unanimously agree — or acquit — on the greater offense before considering the lesser included offense. In this case, however, the trial court’s charge did not demand such unanimity. Although the instruction suggested the order in which the offenses should be considered, it did not require that the jury acquit Lane of child molestation before addressing sexual battery. As noted in Cantrell, we have “no quarrel” with a charge “that a jury should not consider a lesser offense unless the defendant be found not guilty of the greater offense ... so long as the court does not insist upon unanimity and is willing to accept a verdict on the lesser offense.” The trial court did not err in giving the challenged charge.

Judgment affirmed.

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

C. Paul Bowden, District Attorney, Bradford L. Rigby, Assistant District Attorney, for appellee.

        Mayes v. State, 229 Ga. App. 372, 373 (1) (494 SE2d 34) (1997).

        Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Conger v. State, 245 Ga. App. 399, 400 (3) (537 SE2d 798) (2000).

       (Citations and punctuation omitted.) Mayes, supra.

       See Peek v. State, 239 Ga. 422, 426 (2) (238 SE2d 12) (1977).

       (Punctuation omitted.) Turner v. State, 246 Ga. App. 49, 52 (2) (539 SE2d 553) (2000).

       (Punctuation omitted; emphasis in original.) Ford v. State, 214 Ga. App. 284, 286-287 (3) (447 SE2d 334) (1994).

       At the hearing on the motion for new trial, Lane’s sister denied giving Drennon consent to search. As the finder of fact, however, the trial judge was authorized to believe Drennon’s testimony over that of Lane’s sister. See Conger, supra, 245 Ga. App. at 401 (3) (b).

        Ford, supra at 287; see also Turner, supra; Speagle v. State, 217 Ga. App. 577, 579 (1) (458 SE2d 852) (1995).

       266 Ga. 700, 702-703 (469 SE2d 660) (1996); see also Kunselman v. State, 232 Ga. App. 323, 324-325 (1) (501 SE2d 834) (1998) (discussing Cantrell).

       Compare Kunselman, supra at 325 (in that case, “Mather than ‘merely suggesting’ the order in which the offenses should be considered, the charge mandated unanimity”).

       (Citation omitted.) Cantrell, supra at 702, n. 2.

       See Parks v. State, 241 Ga. App. 381, 384 (5) (526 SE2d 893) (1999); Salahuddin v. State, 241 Ga. App. 168, 172 (5) (525 SE2d 422) (1999) (physical precedent only); Brewer v. State, 224 Ga. App. 656, 658 (3) (481 SE2d 608) (1997).


author: Johnson, Presiding Judge.

text:
    A01A0408.
    WOODS v. THE STATE.
    (550 SE2d 730)
   Johnson, Presiding Judge.

Barron Woods was convicted of aggravated assault and simple battery for offenses committed against his girlfriend. Although he raises nine enumerations of error, Woods’ challenges to the convictions fall within three categories: the trial court’s allegedly improper admission of similar transaction evidence; its failure to find that the simple battery conviction merged as a matter of fact with the aggravated assault conviction; and its finding that Woods was not denied effective assistance of trial counsel. Because each of Woods’ arguments is without merit, we affirm the convictions.

Viewed in a light most favorable to the verdict, the evidence shows that Woods and Ophelia Beasley were in the home they shared when Woods accused Beasley of not wanting him anymore and of seeing another man. When Beasley denied the accusations, Woods grabbed her and put her in a headlock. Beasley told Woods to calm down and let her go, because he was hurting her. He left the house, and she went to bed.

A few hours later, Woods woke Beasley by pulling her, by her hair, into a sitting position. Woods accused her of having been with another man while he was gone. Beasley denied the accusation. Woods straddled her and pushed her back down. He pulled a knife from behind his back, held it to her throat, and said, “I don’t know whether to stab you or cut your f — ing head off.” Although Beasley was terrified, she managed to calm Woods down. He threw the knife down, cried, then went to sleep.

1. Following a hearing on the admissibility of similar transaction evidence, the trial court allowed the state to introduce such evidence involving two victims. The trial court gave limiting instructions regarding the evidence before the first similar transaction witness testified and again during its general charge to the jury. In three enumerations of error, Woods contends the trial court erred in admitting this evidence.

The first witness, Jannie Williams, testified that about two years earlier, she and Woods were romantically involved and lived together. When Williams broke off the relationship, Woods came by her house to try to reconcile. Williams would not talk to him, so he forced open her screen door, came inside, and started arguing with her. Williams and her sister told Woods to leave Williams alone. Woods refused, pulled sections of Williams’ hair out, and struck her in the forehead with his fist. Williams, who was bloodied about the head, lost consciousness and had to be hospitalized. She suffered a fracture, bruising, and swelling and, at the time of trial, still experienced memory problems as a result of the head trauma. Woods pled guilty to battery and simple battery.

Keesha Albert testified that she dated Woods about five years before the charged incidents occurred and that the two lived together. She testified that on one occasion, Woods came into their room while she was sleeping, straddled her, pulled her hair, and held a knife to her neck. Woods accused Albert of being unfaithful to him and threatened to cut her “into a thousand pieces.” The landlord responded to Albert’s screams, called police, then ordered them both to leave.

Albert testified that the violence started when Woods threatened her with a knife on a prior occasion. She had gone to church, but Woods did not know where she was. When she returned, he accused her of being out with another man. Woods slapped and choked Albert, then got a knife from the kitchen and threatened to kill her. Another man intervened and stopped the attack. When asked by the prosecutor the number of times Woods threatened her with a knife, Albert replied, “It’s been so many that I don’t really know.” The prosecutor asked if it was “like five? Ten?” At this point, defense counsel objected, stating that the question had been “asked and answered.” The trial court sustained the objection.

The state sought to introduce the evidence to show Woods’ course of conduct and bent of mind. After the hearing regarding the admissibility of the evidence, the trial court ruled that the evidence would be admitted. Before the first similar transaction witness testified and during the trial court’s general charge, the jury was instructed regarding the limited purpose of this evidence.

(a) Woods contends the trial court erred in allowing the admission of similar transaction evidence because the evidence was unduly prejudicial and not introduced for a proper purpose. We disagree.

In order to admit similar transaction evidence, the state must show that (1) the evidence is offered for a proper purpose; (2) sufficient evidence exists that the defendant committed the similar transaction; and (3) there are enough similarities between the other transactions and the charged offense that proof of the former tends to prove the latter. A proper purpose for the introduction of the evidence would be to show motive, intent, plan, identity, bent of mind, or course of conduct. The state urged that it sought to introduce the evidence in order to establish Woods’ bent of mind or course of conduct.

The trial court did not err in admitting the similar transaction evidence. The prior acts were sufficiently similar to show Woods’ course of conduct or bent of mind to react violently when upset with women with whom he had been intimate. We point out that in cases of domestic violence, prior incidents of abuse against sexual partners are generally more permitted because there is a logical connection between violent acts against different persons with whom the accused had a similar emotional or intimate attachment. Prior acts can show the accused’s attitude or mindset (i.e., his bent of mind) as to how sexual partners should be treated. Prior acts can also show an accused’s course of conduct in reacting to disappointment or anger in such a relationship, evidencing a pattern. As we noted in Smith, domestic violence usually occurs in the privacy of the home and is often difficult to prove. The relevance of the similar transaction evidence in this case, along with the trial court’s appropriate limiting instruction regarding the purpose of the evidence, outweighed its prejudicial impact.

(b) Woods asserts that the trial court should not have allowed the state to introduce at trial certain similar transaction evidence which was outside the scope of the evidence which had been ruled admissible at the hearing. He points to Albert’s trial testimony that Woods slapped and tried to choke her, hit her, and threatened her with a knife “so many [times] that I don’t really know [how many].” He also refers to Williams’ nonspecific testimony that Woods had verbally and physically abused her before. Woods urges that these points did not come out prior to the trial court’s ruling. We find no error.

At the hearing, the prosecutor informed the trial court what she expected the similar transaction testimony to show. She stated that she expected Albert to testify that: she lived with Woods; he threw an ashtray at her; “there were several incidents involving a knife”; “he would put a knife to her throat and threaten her a lot”; he would threaten to cut her into pieces; he tried to stab her with scissors; and “a few times he would wake her up in the middle of the night with a knife and/or scissors to her throat.” Albert’s testimony that the incidents with a knife were too numerous to count is very similar to what the prosecutor predicted the testimony would be. And, as the trial court pointed out, the hitting, slapping, and choking Albert testified to at trial were part of an incident in which Woods threatened her with a knife. Therefore, Albert’s testimony came well within the scope of the facts brought up in the similar transaction hearing. It does not appear that Woods was unfairly prejudiced or surprised by Albert’s testimony.

As for Williams’ testimony, the prosecutor told the court that she expected it to show that Woods struck Williams in the forehead with his fist and that the two had been romantically involved. The prosecutor, Woods argues, had said nothing in the hearing about incidents of prior abuse Woods allegedly inflicted upon Williams.

The challenged testimony came out during defense counsel’s cross-examination of the witness. Williams had testified about the day on which Woods struck her. She testified that she and Woods argued that day because she had broken off their relationship. On cross-examination, defense counsel asked Williams if the reason for the altercation was that Woods had “slept with” her aunt. Williams said that the couple had been having problems before that and that the “verbal and physical abuse” was occurring before Woods became involved with the aunt. Woods did not object to the witness’ response. Thus, the enumerated error suffers two characteristics fatal to appellate review: (1) error, if any, was induced by Woods; and (2) Woods waived any error by failing to object.

(c) According to Woods, the trial court erred in not giving the jury limiting instructions regarding similar transaction evidence before Albert testified, even though counsel did not request instructions be given at that particular time. There was no error.

Although the trial court did not give limiting instructions immediately before Albert (the second similar transaction witness) testified, it did give such instructions before Williams (the first similar transaction witness) testified. And the trial court gave limiting instructions again in its general charge to the jury. The trial court was not required to do more.

2. Woods claims the trial court erred in authorizing the conviction and sentence of simple battery when it was a lesser included offense of aggravated assault. According to Woods, the simple battery conviction merged as a matter of fact with the aggravated assault conviction. We disagree.

Count 1 of the indictment charged Woods with aggravated assault, alleging that he “did make an assault on the person of Ophelia Beasley with a knife, an object which, when used offensively against said person, was likely to result in serious bodily injury.” Count 2 charged Woods with simple battery, alleging that he “did intentionally make contact of an insulting and provoking nature with the person of Ophelia Beasley.”

Woods argues that since the second count does not set forth any details, the jury might have found him guilty of simple battery based on evidence that Woods held Beasley down while he held the knife to her throat. In that case, he contends, the two offenses would have merged.

In determining whether merger occurred, the key question is whether the two offenses are proven with the same facts. Here, the two offenses were proven with different facts. The simple battery charge was proven with evidence that Woods grabbed Beasley and put her in a headlock. The aggravated assault charge was proven with evidence that, a few hours later, Woods awakened Beasley, held a knife to her throat, and threatened to stab her or cut her head off. Thus, the aggravated assault was established by proof of different facts from those which proved the simple battery, and there was no merger. We cannot say that the finder of fact was required to find that Woods committed the simple battery as part of the aggravated assault.

3. In five enumerations of error, Woods urges that trial counsel rendered ineffective assistance.

(a) Woods argues that his trial counsel was ineffective in that she failed to prevent the introduction of evidence of his bad character. He complains of the following incidents:

(i) At trial, the victim testified that she was a medications nurse in the county jail and she met Woods while he was an inmate there. She added that Woods moved in with her upon his release from jail. Defense counsel made no objection to the testimony. Woods has not shown that this failure to object amounted to ineffective assistance of counsel.

Defense counsel testified at the hearing on the motion for a new trial that she decided beforehand that she would not object to any references to Woods having been in jail. First, she expected the fact that he had been in jail to surface when Woods took the stand to testify; she wanted to prepare the jury for that. Second, defense counsel wanted the jury to know that Beasley became involved with a jail inmate and knowingly violated her employer’s rules by associating with an inmate and hy letting him leave his cell under false pretenses. That evidence, defense counsel believed, would call Beasley’s judgment and credibility into question. Defense counsel's decision to allow the testimony was clearly a matter of trial strategy and not grounds for an ineffective assistance of counsel claim.

(ii) Woods asserts that defense counsel should have objected when Albert, the similar transaction witness, testified that she did not know how many times Woods had threatened her with a knife because “it’s been so many.” We note that Albert had already testified that Woods had threatened her with a knife “more than once,” and had related to the jury the details of two such incidents. Even assuming that trial counsel was deficient in not objecting to the “it’s been so many” remark, in view of the totality of the other testimony provided by the state’s witnesses, Woods has failed to show a reasonable probability that the outcome of his trial would have been different but for the alleged deficiency.

(b) Woods contends trial counsel was ineffective because she failed to object to similar transaction evidence when the state failed to give proper notice of the incidents involving Albert. Specifically, he urges that the notice provided, which included Albert’s name, an incident date, and referred to “Simple battery, Simple Assault, other incidents of violence,” was not adequate notice of the incidents involving knives.

The record shows that the state served Woods with notice of its intent to introduce evidence regarding Albert on March 14, 2000. The hearing regarding similar transactions and the trial itself were conducted on April 10, 2000. Only ten days notice was required.

The transcript contradicts Woods’ argument that trial counsel did not receive adequate notice about the incidents involving the use of knives against Albert. At the hearing on the motion for a new trial, defense counsel testified that she was given notice of the incidents involving Albert. Indeed, she testified that she had access to the state’s file and that nothing came out at trial that she was not expecting or did not already know about. Defense counsel testified that she was prepared for all the evidence introduced, including that involving the use of knives against Albert. Thus, even if the state erred in not stating with sufficient specificity what the “other incidents of violence” were, under the facts of this case, any error was wholly harmless in that the intent of the notice rule was fully met.

Decided June 22, 2001

Lohmeier & Lohmeier, Gregory J. Lohmeier, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Candace N. Kicklighter, Assistant District Attorneys, for appellee.

(c) Based on the discussions in Division 1, there is no merit to Woods’ arguments that trial counsel was ineffective because she failed to object to the introduction of similar transaction evidence when: it was unduly prejudicial and not introduced for a proper purpose; it fell outside the scope of the similar transaction evidence that had been ruled admissible; and the trial court did not give separate limiting instructions before the second similar transaction witness testified.

Since the trial court’s finding that Woods was not denied effective assistance of counsel was not clearly erroneous, it must be affirmed.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

        Jones v. State, 243 Ga. App. 374, 376 (2) (533 SE2d 437) (2000).

       Id. at 377 (2).

        Smith v. State, 232 Ga. App. 290, 295 (1) (501 SE2d 523) (1998).

       Id.

       Id.

       Id.

       See Jimenez v. State, 228 Ga. App. 668, 669 (492 SE2d 530) (1997).

       See generally Bean v. State, 239 Ga. App. 106, 108 (2) (521 SE2d 19) (1999).

       See Randall v. State, 207 Ga. App. 637, 639 (1) (428 SE2d 616) (1993).

       See Hardeman v. State, 247 Ga. App. 503, 507 (4) (b) (544 SE2d 481) (2001).

        Kellibrew v. State, 239 Ga. App. 783, 786 (4) (521 SE2d 921) (1999).

       See Dawson v. State, 203 Ga. App. 146, 147 (2) (416 SE2d 125) (1992); Clay v. State, 209 Ga. App. 266, 269 (3) (433 SE2d 377) (1993).

       See generally Bellamy v. State, 243 Ga. App. 575, 581 (5) (530 SE2d 243) (2000).

       See Nash v. State, 222 Ga. App. 766, 767-768 (3) (476 SE2d 69) (1996).

       See Scott v. State, 242 Ga. App. 553, 555 (2) (a) (530 SE2d 257) (2000).

       See Uniform Superior Court Rule 31.1.

       See generally Penaranda v. State, 203 Ga. App. 740, 743-744 (4) (c) (417 SE2d 683) (1992); Cooper v. State, 178 Ga. App. 709, 715 (6) (345 SE2d 606) (1986).

        See Harper v. State, 241 Ga. App. 865, 868 (3) (528 SE2d 317) (2000).


text:
    A01A0591.
    BULLOCH SOUTH, INC. et al. v. GOSAI et al.
    (550 SE2d 750)
   Ruffin, Judge.

Hitendrakumar Gosai and Dipti Gosai entered a series of contracts with Bulloch South, Inc. d/b/a Red Carpet Inn for the purchase of a hotel. The purchase fell through, and the Gosais sued Bulloch South, Charles Sutton, and Barbara Sutton for fraud and conversion stemming from defendants’ failure to return $20,000 in refundable deposits. The trial court granted the Gosais’ motion for summary judgment, and this appeal ensued. For reasons that follow, we affirm in part and reverse in part.

When ruling on a motion for summary judgment, the trial court should give the party opposing the motion the benefit of all reasonable doubt, construing the evidence most favorably toward the opposing party. “When reviewing the grant or denial of a motion for summary judgment, this Court conducts á de novo review of the law and the evidence.”

Viewed in a light most favorable to the defendants, the record shows that in August 1997, Charles Sutton and Hitendrakumar Gosai signed an abbreviated contract for the sale of the Red Carpet Inn located at 2875 U. S. Highway 301 South in Register, Georgia. The contract provided, in pertinent part, that it was

between Hitendrakumar J. Gosai as a buyer and Bulloch South, Inc., seller for the [property] for the total purchase price of $1.6 million, with 5 acres of land attached to this property. Upon the condition of getting financing within 60 days. Financing would be 80-90% of the total price. If Hitendrakumar J. Gosai is unable to get financing within 60 days, then Bulloch South, Inc. must return the deposit of $10,000 back to buyer in full.

The contract did not contain either the interest rate at which Gosai was to obtain financing or a detailed description of the property. In Charles Sutton’s affidavit, however, he averred that he and the Gosais discussed the interest rate during negotiations and determined that an interest rate between nine and one-half and ten percent was acceptable. Sutton also stated that he gave Hitendrakumar Gosai the plat and legal description of the property, which Gosai needed in order to obtain financing.

On October 28, 1997, Charles Sutton and Hitendrakumar Gosai signed a second agreement, which identified “Barbara Sutton, president, Bulloch South, Inc.,” as the seller and both Hitendrakumar and Dipti Gosai as the buyers of the hotel. The contract provided that the

[b]uyers have already paid $10,000. A 60 day option will be given in return for payment of $10,000, to be paid by Nov. 12, 1997, making a total of $20,000 paid so far. In the event that [the buyers] are not in a position to secure a loan, an additional. $180,000 will be due at closing. In the event that Mr. Gosai cannot secure a loan he will get V2 of his money back ($10,000). Or, we (Bulloch South) will secure a loan that would be transferable and would give Mr. Gosai some additional time to raise the balance of the $200,000, which would be $180,000.

The contract was signed by Charles Sutton and Hitendrakumar Gosai.

On November 14, 1997, Charles Sutton and Hitendrakumar Gosai signed a third agreement, which Barbara Sutton also signed as a witness. This handwritten agreement provided that the

[o]ption or sales contract done on 10/28/97 in between two parties, buyer (H. J. Gosai) and seller Bulloch South (Charles and Barbara Sutton as an acting agents) [sic] is extended for 30 (thirty) days farther more [sic] from today’s date. Buyer is giving $10,000.00 . . . (ten thousand) [as] a 2nd refundable deposit to the seller today. V2 is refundable.

(Emphasis in original.)

Evidently, the Gosais were unable to obtain financing. In August 1998, the Gosais sued Bulloch South, Charles Sutton, and Barbara Sutton for the return of $20,000 paid in deposits. In their answers, the defendants asserted that the first $10,000 deposit was refundable only if the Gosais “were unable to obtain financing after making their best efforts in good faith.” With respect to the second $10,000 deposit, defendants admitted receiving “$10,000 for an option, but deniefd] that said payment was unconditionally refundable. Furthermore, Defendant [s showed] that one half of the option payments made were nonrefundable under any condition.”

The Gosais moved for partial summary judgment, arguing that the contracts were “void as a matter of law due to their lack of essential terms.” Specifically, the Gosais argued that the absence of either a specified interest rate or a legal description of the property was fatal to the contracts. The Gosais also argued that Barbara Sutton ratified the contract signed by Charles Sutton, thus “obligat[ing Bulloch South] on behalf of Barbara Sutton.”

After an unrecorded hearing, the trial court issued an order in which it found that the contracts were unenforceable based upon the lack of description of the property to be sold. Accordingly, the trial court directed defendants to return the $20,000 in deposits to the Gosais. The trial court did not expressly address the Gosais’ argument that Barbara Sutton ratified the contract. In granting the Gosais’ motion, however, the court arguably concluded that all defendants were equally liable.

1. In their first enumeration of error, the defendants contend that the trial court erred in granting summary judgment, asserting that the lack of a property description within the contracts did not render them unenforceable. We agree.

To satisfy the statute of frauds, “a contract for the sale of land . . . must describe the property to be sold with the same degree of certainty as that required in a deed conveying realty.” However, a perfect description is not required. All that is required is that the contract furnish a key to the identification of the land. “If the premises are so referred to [within the contract] as to indicate [the seller’s] intention to convey a particular tract of land, extrinsic evidence is admissible to show the precise location and boundaries of such tract.” “The legal sufficiency of a description is a question of law for the court.”

The initial contract described the property as the Red Carpet Inn at 2875 U. S. Highway 301 South in Register, Georgia, “with 5 acres of land attached to this property.” Where, as here, the parties are not seeking specific performance of the contract, such postal address provides a legally sufficient description to survive summary judgment. This is particularly true when there is no indication that the parties are confused about the boundaries of the property being sold. In this case, although a plat was not incorporated in the contract, Charles Sutton avers that he provided both the plat and legal description to Hitendrakumar Gosai during negotiations. Thus, the record suggests that there was no confusion as to the property being sold. Under these circumstances, the trial court erred in granting summary judgment to the Gosais on this basis.

Our analysis, however, does not end here. Because a grant of summary judgment will be affirmed if it is right for any reason, we must address whether the absence of a specified interest rate in the contracts renders the contracts unenforceable.

We note, at the outset, that “[t]he policy of the law is against the destruction of contracts on the ground of uncertainty if it is possible in light of the circumstances under which the contract was made to determine the reasonable intention of the parties.” “The test of an enforceable contract is whether it is expressed in language sufficiently plain and explicit to convey what the parties agreed upon.” And, if the words used in the contract are plain and clear, the contract should be construed by the court rather than by a jury.

(a) We turn first to the August 1997 contract, which contained the initial agreement to sell the hotel. It is undisputed that the contract did not include the interest rate at which the Gosais were to obtain financing. As the Gosais note, “[t]he appellate courts of Georgia have consistently held that such a contract is too vague and indefinite to be enforced since the failure to specify at what rate the buyer is to obtain a mortgage loan causes a failure of a condition precedent to the enforceability of the contract.”

On appeal, the defendants argue that, although not contained in the contract, the parties discussed the interest rate at which the Gosais were to obtain a mortgage and “[s]uch parol evidence is admissible to explain [any] ambiguity.” We disagree. “There is a difference between ambiguity, which imports doubleness and uncertainty of meaning, and that degree of indefiniteness which imports no meaning at all. The former can be explained by parol. The latter cannot be merely explained, but a deficiency must be supplied.” The absence of an interest rate constitutes a deficiency in the contract. As such, “[p]arol or extrinsic evidence cannot supply the deficiency of the missing essential element” in a contract for the sale of land. Thus, the trial court correctly concluded that the August 1997 contract was unenforceable and properly granted summary judgment to the Gosais on Count 1 of their complaint.

(b) We turn next to the October 1997 contract, which is titled “OPTION OR SALES CONTRACT.” The first two paragraphs of this contract reiterate and clarify the Gosais’ agreement to purchase the hotel for $1.6 million. As with the first contract, this contract also lacks a specified interest rate at which the Gosais were to obtain financing. Accordingly, to the extent that this agreement represented a contract for the sale of land, it is also unenforceable.

This contract, however, contains more than a mere agreement to sell the property. As stated in the title, it also contains an option contract. Paragraphs three and four of the contract provide, in pertinent part, that “[a] 60 day option will be given in return for payment of $10,000, to be paid by Nov. 12, 1997, making a total of $20,000 paid so far. ... In the event that Mr. Gosai cannot secure a loan he will get V2 of his money back ($10,000).” Thus, the issue is whether the option agreement may be severed from the contract for the sale of the property.

Pursuant to OCGA § 13-1-8 (a), “[a] contract may be either entire or severable. In an entire contract, the whole contract stands or falls together. In a severable contract, the failure of a distinct part does not void the remainder.” “[T]he ‘primary task’ in determining contract severability remains that of ascertaining the intention of the parties.” “The parties’ intent may be expressed directly, through a severability clause, or indirectly, as when the contract contains promises to do several things based upon multiple considerations.” Moreover,

where an instrument in writing, purporting to be a bilateral contract, contains mutual promises, which without more and when taken independently of certain subsidiary provisions in the instrument would render the instrument valid as a contract, such subsidiary provisions will not, unless their terms imperatively demand it, be given a construction that will nullify and completely destroy the entire obligations of either party under the instrument and thus render the instrument lacking in mutuality and void.

Here, in addition to the agreement to sell the hotel for $1.6 million, the contract contained an express agreement that the Gosais pay $10,000 “in return for” a “60 day option.” Such separate agreement with separate consideration indirectly expresses an intent that the agreement be severable. As it is severable, the option agreement is enforceable “if either a specific price is provided for in the agreement or a practicable mode is provided by which the price can be determined by the court without any new expression by the parties themselves.”

The contract at issue contained a price for the hotel, and the Gosais provide no legal authority for the proposition that an interest rate must be included in such option contract. Accordingly, where a contract for the sale of real estate expressly contains a separate promise under which the seller gives another party an option to purchase the property at a fixed price for a certain time, that portion of the contract is not unenforceable due to the lack of a financing provision. To hold otherwise would allow the Gosais to escape all obligations incurred under the contract due to the absence of a specified interest rate. Such result would be patently unfair, as the contract was sufficient to prevent the defendants from selling the property to any party other than the Gosais for the duration of the option period.

(c) We turn now to the November 1997 agreement, which appears to have been handwritten at the bottom of the October 1997 contract. This contract extends the option to purchase for an additional 30 days. It also states that the buyer “is giving $10,000 (ten thousand) as a 2nd refundable deposit to the seller today. V2 is refundable.” Thus, it is clear that this contract, like the October 1997 contract, constitutes an option agreement, which, as discussed supra, is enforceable notwithstanding the lack of a specified interest rate. It follows that the trial court erred in finding, as a matter of law, that the Gosais were entitled to the return of the entire $10,000 paid for the option to purchase the hotel.

2. In their second enumeration of error, defendants assert that the trial court erred in granting the Gosais’ motion for summary judgment against Barbara Sutton in her individual capacity. We note, at the outset, that it is unclear whether the Gosais sought to have Barbara Sutton held liable in her personal capacity. In their motion for summary judgment, the Gosais argued that she “ratified” the contract signed by Charles Sutton. The defendants, however, clearly interpreted this argument as an attempt to hold Barbara Sutton liable in her personal capacity. Indeed, in addition to suing Bulloch South, the Gosais named both Charles and Barbara Sutton, in their individual capacities, in the complaint. Thus, the trial court’s order arguably can be construed as holding Barbara Sutton personally liable. To the extent that the order can be construed in this way, we agree that the trial court erred in granting summary judgment.

The undisputed evidence demonstrates that all of the contracts were between the Gosais and Bulloch South, which, as the Gosais acknowledge in their complaint, “is a corporation licensed to do business in Bulloch County, Georgia.” “One who deals with a corporation as such an entity cannot, in the absence of fraud, deny the legality of the corporate existence for the purpose of holding the owner liable.” Although whether to pierce the corporate veil is normally a jury issue, “in order for the trial court to submit the issue to a jury, the plaintiff must introduce evidence that the corporate arrangement was a sham, used to defeat justice, to perpetrate fraud, or to evade statutory, contractual or tort responsibility.” In their motion for summary judgment, the Gosais presented no evidence that the corporate arrangement was a sham. Accordingly, the trial court erred to the extent that it found Barbara Sutton liable in her individual capacity as a matter of law.

Decided June 22, 2001.

Merrill, Stone & Hamilton, Jesse C. Stone, Lance J. Hamilton, for appellants.

Emmett L. Goodman, Jr., for appellees.

Judgment affirmed in part and reversed in part.

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

       See Southern Prestige Homes v. Moscoso, 243 Ga. App. 412 (1) (532 SE2d 122) (2000).

       (Punctuation omitted.) Id. at 412-413.

       The Gosais also sought punitive damages for defendants’ alleged conversion. In its order, the trial court concluded that there was no evidence supporting the claim for punitive damages and entered judgment for defendants on this issue. As the Gosais have not appealed this aspect of the trial court’s order, we do not address it on appeal.

        Barnes v. Whatley, 221 Ga. App. 110, 111-112 (1) (470 SE2d 498) (1996).

       See Swan Kang, Inc. v. Kang, 243 Ga. App. 684, 688 (3) (534 SE2d 145) (2000).

       Id.

       (Punctuation omitted.) Id.

       Id.

       Compare Wiley v. Tom Howell & Assoc., 154 Ga. App. 235, 236 (267 SE2d 816) (1980) (“ ‘A court of equity will not decree the specific performance of a contract for the sale of land unless there is a definite and specific statement of the terms of the contract.’ ”).

       See Swan Kang, supra.

       See id. at 689.

        See Fulton County Bd. of Tax Assessors v. Visiting Nurse &c. of Metro Atlanta, 243 Ga. App. 64, 67 (3) (532 SE2d 416) (2000).

       (Punctuation omitted.) Jones v. Hill, 246 Ga. App. 194, 196 (539 SE2d 893) (2000).

       (Punctuation omitted.) Denton v. Hogge, 208 Ga. App. 734, 735 (2) (431 SE2d 728) (1993).

       See Sewell v. Hull/Storey Dev., 241 Ga. App. 365, 367 (1) (526 SE2d 878) (1999).

        Homler v. Malas, 229 Ga. App. 390, 391 (494 SE2d 18) (1997).

       (Punctuation omitted.) Wiley, supra at 238.

       See Bonner v. Jordan, 218 Ga. 129-130 (126 SE2d 613) (1962); Denton, supra; Homler, supra.

        Wiley, supra at 237-238.

       See Homler, supra.

        Nat. Consultants v. Burt, 186 Ga. App. 27, 34 (3) (366 SE2d 344) (1988).

        Grove v. Sugar Hill Investment Assoc., 219 Ga. App. 781, 786 (3) (466 SE2d 901) (1996).

       (Punctuation omitted.) Toncee, Inc. v. Thomas, 219 Ga. App. 539, 541 (2) (466 SE2d 27) (1995).

       (Punctuation omitted.) Pettigrew v. Collins, 246 Ga. App. 207, 208 (539 SE2d 214) (2000).

       See Brack v. Brownlee, 246 Ga. 818 (273 SE2d 390) (1980).

       See Jakel v. Fountainhead Dev. Corp., 243 Ga. App. 844, 846 (534 SE2d 199) (2000) (“The [option] contract binds the seller to sell but leaves it discretionary with the other party to buy.”).

       Although it appears from the contracts that the Gosais paid the defendants three “deposits” of $10,000, the pleadings make clear that, in fact, the Gosais paid two $10,000 payments for a total of $20,000.

       Arguably, the Gosais were merely arguing that, having ratified the contract, Barbara Sutton, as president of Bulloch South, bound the company. The defendants, however, concede that the corporation was bound by the contract.

       Indeed, although the Gosais have not conceded this point on appeal, their brief contains absolutely no argument or citation of authority to support their contention that Barbara Sutton should be liable in her personal capacity.

       (Punctuation omitted.) Garrett v. Women’s Health Care of Gwinnett, 243 Ga. App. 53, 55 (2) (532 SE2d 164) (2000).

       (Punctuation omitted.) Hayes v. Collins, 245 Ga. App. 704, 705 (538 SE2d 785) (2000).


text:
    A01A0739.
    SYMS v. THE STATE.
    (550 SE2d 723)
   Ruffin, Judge.

Leroy Syms appeals the trial court’s denial of his “Motion for Production of Documents and Records” in this almost 20-year-old criminal case. For reasons that follow, we affirm.

Syms was indicted in July 1981 for voluntary manslaughter. A jury found him guilty following a trial in 1983, and we affirmed his conviction. On June 15, 2000, Syms filed a “Motion for Production of Documents and Records.” In that motion, Syms sought copies of the indictments for six other crimes allegedly used against him during his 1983 manslaughter trial. According to the motion, Syms needed these documents “to support the issues he had raised in a pending Federal Habeas Corpus Action.” The trial court denied Syms’ motion in October 2000, noting that “[t]here is no provision authorizing or requiring the production of documents in a case not currently pending before the court.”

1. On appeal, Syms argues that the trial court improperly denied his motion on the ground that his criminal case was no longer pending before the court. He further claims that the trial court erred in not making findings of fact and conclusions of law.

Syms’ arguments present no basis for reversal. Even assuming, without deciding, that the trial court could have reached the merits of the motion to produce, denial of that motion was appropriate. As indicated by our Supreme Court, “ ‘[a]fter the time for appeal has expired there is no due process or equal protection right to a free copy of one’s court records absent a showing of necessity or justification.’ ” Thus, “ ‘ “some justification for use in a habeas corpus or related proceeding must be shown in order to be entitled to such records in a collateral attack on the sentence.” ’ ” Syms has not made the necessary showing.

As an initial matter, the record does not reveal that Syms was in fact indicted for the six “other crimes” he discusses in his brief. As evidence of these crimes, Syms points to testimony given by various fact witnesses during his manslaughter trial. One witness testified, for example, that Syms, the victim, and another individual used cocaine the night before the incident. According to Syms, this testimony established that he possessed and used cocaine in violation of OCGA § 16-13-26, a crime for which he now seeks a copy of his “indictment.” Nothing in the record, however, indicates that Syms was actually indicted for this offense or the other crimes he cites.

Furthermore, the record clearly shows that by the time Syms filed his June 2000 motion to produce, his habeas corpus petition had been denied by the federal district court and was on appeal with the Eleventh Circuit Court of Appeals. In fact, Syms’ appellate brief was due approximately six months before he filed his June 2000 motion to produce. We also note that just one month after Syms filed his motion and well before the trial court ruled, the Eleventh Circuit affirmed the denial of his habeas corpus petition.

By the time Syms filed his motion, therefore, his habeas corpus action was in the appeal stage. Any “new evidence” that he might have submitted to the Eleventh Circuit at that point would not have been considered on appeal. Moreover, when the trial court ruled on his motion, his appeal had been decided adversely to him. Syms has not shown any justification or necessity that would support an order to produce the requested indictments — if they, in fact, exist. The time for presenting the indictments as evidence in his federal habeas corpus action had passed. Accordingly, the trial court did not err in denying Syms’ June 15, 2000 “Motion for Production of Documents and Records.”

Decided June 22, 2001.

Leroy Syms, pro se.

Spencer Lawton, Jr., District Attorney, Lori T. Loncon, Assistant District Attorney, for appellee.

2. In his remaining enumerations of error, Syms appears to challenge his manslaughter conviction, arguing that the State did not follow the notice procedures required to introduce evidence of these “other crimes” at trial. As noted above, we affirmed Syms’ conviction in 1985. He cannot now seek to “appeal directly what has already been appealed and decided against him.” Furthermore, these alleged errors have nothing to do with whether the trial court properly denied Syms’ June 2000 motion to produce, the ruling from which he appeals. Thus, they provide no basis for reversal.

Judgment affirmed.

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

        Syms v. State, 175 Ga. App. 179 (332 SE2d 689) (1985).

       See Sirmans v. State, 244 Ga. App. 252, 253 (2) (534 SE2d 862) (2000) (“[A] decision right for any reason will be affirmed on appeal.”).

        McDowell v. Balkcom, 246 Ga. 611 (272 SE2d 280) (1980).

       (Emphasis omitted.) Mydell v. Clerk, Superior Court &c., 241 Ga. 24 (243 SE2d 72) (1978).

        Syms v. Chapman, 228 F3d 414 (11th Cir. 2000).

       See Wilson v. Apfel, 179 F3d 1276, 1278-1279 (11th Cir. 1999) (appellate court may consider evidence in the certified record only); Dominick v. Dixie Nat. Life Ins. Co., 809 F2d 1559, 1573 (11th Cir. 1987) (refusing to consider evidence attached to appellate briefs).

        Syms v. State, supra.

        Collier v. State, 170 Ga. App. 616, 617 (317 SE2d 657) (1984).


text:
    A01A0767.
    LETCHAS et al. v. SIMS ASPHALT COMPANY, INC.
    (550 SE2d 721)
   Johnson, Presiding Judge.

This case involves bids on a City of Alpharetta construction project which were well over the City’s budget, so the City, instead of conducting another formal bidding process, asked the original bidders to adjust their bids based on reductions in the project. The City then accepted the lowest adjusted bid. We find that this bidding process by the City was lawful and that the company which submitted the initial lowest bid — before the project was reduced — is not entitled to damages or any other relief.

The City of Alpharetta allotted $225,000 to build a softball field and parking lot. It advertised for construction bids on the project. The advertisement expressly stated that the City reserved the right to reject all bids and waive any formalities and that the City would not reimburse any bidder for its bid preparation costs.

Five companies bid on the project. Each of the bids was more than $100,000 over the allotted budget, with Sims Asphalt Company, Inc. submitting the lowest bid of $339,225. In order to stay within its budget, the City did not accept any of the bids but reduced the scope of the project and asked the companies to revise their bids based on the reduced project. Lewis Construction & Consulting, Inc. then submitted the lowest revised bid of $223,685, followed by Sims’ adjusted bid of $234,799. Based on the revised bids, the City awarded the contract for construction of the softball field and parking lot to low bidder Lewis.

Sims sued the City, the mayor, members of the city council, and Lewis (collectively “the City”), seeking to enjoin construction of the field and parking lot, to be awarded the construction contract, and to recover, among other damages, its bid preparation costs. Sims moved for partial summary judgment on its claim for bid preparation costs, while the City moved for summary judgment on all of Sims’ claims. The trial court granted Sims’ motion for partial summary judgment but denied the City’s summary judgment motion. The City appeals from the trial court’s summary judgment rulings.

The purpose of a bidding process for public project contracts is to assure that taxpayers receive quality work and goods for the lowest possible price. That purpose is why courts generally approve of a bidding process which favors the acceptance of the lowest bid. But when a governmental entity frustrates the bidding process and awards the contract to an unqualified bidder, the injured low bidder may bring an action to recover its reasonable costs of bid preparation.

In the instant case, contrary to the rulings of the trial court, there is no evidence that the City frustrated the bidding process by awarding the construction contract to an unqualified bidder. Rather, the undisputed evidence plainly shows that the City awarded the contract to the lowest qualified bidder. The City thus achieved the ultimate purpose of the bidding process by assuring that taxpayers receive quality work and goods for the lowest possible price.

Sims cites a paragraph found in the instructions to the bidders which states that if the lowest bid is above the City’s budget, then the City will adjust the project scope with the apparent lowest qualified bidder by deleting construction items. Based on this provision, Sims contends that the City acted wrongly after the initial bids were over the City’s budget by allowing all of the companies to adjust their bids to the reduced project scope. Sims argues that if the City wanted to meet its budget by reducing the project scope, then it should have allowed only Sims to adjust its bid.

Decided June 22, 2001

Bovis, Kyle & Burch, John V. Burch, James B. Ritchie, for appellants.

Chesnut, Livingston & Pye, Tom Pye, for appellee.

While the City might have chosen to adjust the scope of the project only with Sims after it submitted the initial lowest bid, the City was not obligated to do that given the City’s clear right — established in the advertisement for bids — to reject all of the bids and waive any formalities in the bidding process. A governmental entity may reserve the authority to reject any or all bids, and the exercise of that authority is not improper. Here, the City simply exercised its right to reject all of the bids because they were significantly over the budget for the softball field project and its right to waive bidding formalities by asking the bidders to adjust their bids to reflect the reduced project scope.

Because there are no genuine issues of material fact that the City acted lawfully and that Sims has shown no legal basis for any of the relief it seeks, we find that the trial court erred in granting partial summary judgment to Sims and in denying summary judgment to the City. We therefore reverse the grant of partial summary judgment to Sims and reverse the denial of summary judgment on all of Sims’ claims to the City, the mayor, the council members, and Lewis.

Judgment reversed.

Ruffin and Ellington, JJ, concur.

        City of Atlanta v. J. A. Jones Constr. Co., 260 Ga. 658 (1) (398 SE2d 369) (1990).

       Id.

       Id. at 659 (1).

        Peeples v. Byrd, 98 Ga. 688, 691 (1) (25 SE 677) (1896) (court reporter properly exercised right, reserved by advertisement for bids, to reject all bids); see Qonaar Corp. v. MARTA, 441 FSupp. 1168, 1172-1173 (N.D. Ga. 1977) (MARTA did not act arbitrarily or capriciously in rejecting all bids pursuant to a specific contract clause allowing it to reject any or all bids).

       See OCGA § 9-11-56.


text:
    A01A0158.
    A01A0230.
    GEORGIA-PACIFIC CORPORATION v. IVEY. THURMOND v. IVEY.
    (549 SE2d 471)
   Johnson, Presiding Judge.

In these unemployment compensation appeals, we decide whether an employer must comply with the procedures set forth in the drug-free workplace program statutes (OCGA § 34-9-412 et seq.) in order to prove just cause for discharging an employee. We hold that an employee who violates his employer’s anti-drug policy may be disqualified from receiving unemployment benefits, even though the employer has not met the statutory requirements for establishing a drug-free workplace program.

Georgia-Pacific Corporation had a policy prohibiting its employees from reporting for work while under the influence of drugs. The policy was included in Georgia-Pacific’s employee handbook, a copy of which was given to Johnny Ivey, a saw operator for Georgia-Pacific. No written policy informed employees about random drug testing, though Georgia-Pacific had generally informed its employees that random drug testing would begin sometime in 1998.

When a July 1998 drug test given to all employees showed the presence of marijuana in Ivey’s system, he was fired. Ivey did not deny that he had smoked marijuana. In fact, he admitted that he had smoked marijuana at home in June. Ivey’s position was that his discharge was unjust, and he was therefore eligible for unemployment benefits, because Georgia-Pacific failed to give its employees proper notice of its drug testing policy.

Ivey applied for unemployment compensation benefits from the Georgia Department of Labor. His application was denied by a hearing officer, and that decision was affirmed by the agency’s board of review. The superior court overturned the board’s decision, ruling that Georgia-Pacific could not justify discharging Ivey based on a failed drug test because it had not complied with certain drug-free workplace program requirements. Georgia-Pacific appeals from that decision in Case No. A01A0158. Michael Thurmond, in his capacity as Commissioner of the Department of Labor, appeals in Case No. A01A0230. We reverse.

Case No. A01A0158

1. We agree with Georgia-Pacific’s argument that the lower court erred in basing its decision to grant unemployment benefits on Georgia-Pacific’s noncompliance with OCGA § 34-8-194 (2) (C) (i).

Whether a claimant is entitled to unemployment benefits is governed by Georgia’s Employment Security Act. OCGA § 34-8-194 (2) (A) provides, in part, that an employee is disqualified if it is shown that the discharge was for failure to obey his employer’s rules. Disqualification is an exception to the public policy favoring the payment of benefits to persons unemployed through no fault of their own, and the employer must show by a preponderance of the evidence that disqualification is appropriate.

OCGA § 34-8-194 (2) (C) (i) provides, in relevant part, that the employer’s burden of proving just discharge is presumed met if the individual fails a drug test which is required by the employer’s drug-free workplace policy, and the policy complies with the provisions of Article 11 of Chapter 9.

OCGA § 34-9-412 provides that if an employer implements a drug-free workplace program substantially in accordance with OCGA § 34-9-413, the employer shall qualify for a premium discount under its workers’ compensation insurance policy. OCGA § 34-9-412.1 specifies what an employer must do in order to be certified as having a drug-free workplace program. OCGA § 34-9-413 specifies the elements of a drug-free workplace program, e.g., written policy statement, substance abuse testing, and the provision of employee assistance resources. Under OCGA § 34-9-414, before conducting drug tests, an employer must, just once, give all employees a notice of testing, and give all employees a written policy containing certain specific information regarding the employer’s policy on substance abuse. It is undisputed that Georgia-Pacific did not comply with the statutory guidelines for establishing a drug-free workplace program. However, we disagree with the superior court’s holding that the drug-free workplace program requirements must be satisfied before a discharge can be justified based on a failed drug test.

First, the Employment Security Act clearly provides that an individual is ineligible to receive benefits if he was discharged for failure to obey his employer’s orders, rules, or instructions.

Second, it is clear from OCGA §§ 34-9-412 and 34-9-412.1 that compliance with OCGA § 34-9-413 is not mandatory except insofar as compliance entitles the employer to receive certain, specified rewards. One such reward is that the employer receives a discount on its workers’ compensation premiums. Another reward for compliance with the statute is the presumption created under OCGA § 34-8-194 (2) (C) (i) — that the discharge was justified. Other than these rewards for compliance, the statute sets forth no consequences for failing to adopt the procedures. Specifically, there is nothing in the statute indicating that an employer’s noncompliance with OCGA § 34-9-413 renders a drug-based discharge unjust and the claimant eligible for unemployment benefits. A noncompliant employer simply receives no discount and continues to bear the burden of proving that the discharge was just. Thus, without the benefit of the presumption, the employer must prove that the employee violated its rules.

Decided May 17, 2001

Reconsideration denied June 25, 2001.

Troutman Sanders, Richard W. Gerakitis, Robert D. Howell, Thomas E. O’Connor, Jr., for appellant (case no. A01A0158).

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, Susan L. Rutherford, Senior Assistant Attorney General, Kimberly B. Lewis, Assistant Attorney General, for appellant (case no. A01A0230).

Todd C. Hughes, Mary I. Dickerson, Lisa J. Krisher, Phyllis J. Holmen, for appellee.

We hold, therefore, that the employer can justify a discharge based on a failed drug test, even if the employer has not implemented a certified drug-free workplace program.

2. We also agree with Georgia-Pacific’s argument that the superior court erred in failing to hold that the decision of the administrative agency was supported by any evidence.

In this case, there was evidence that Georgia-Pacific had a policy against employees reporting for work while under the influence of drugs, that Ivey had a copy of the policy, that he smoked marijuana, and that he reported for work while marijuana was in his system. There being some evidence to support the administrative hearing officer’s decision, as adopted by the board of review, the superior court erred in reversing the decision of the administrative agency.

Case No. A01A0230

3. Based on the foregoing, the judgment in this case is also reversed.

Judgments reversed.

Ruffin and Ellington, JJ, concur.

        Barron v. Poythress, 219 Ga. App. 775, 776 (466 SE2d 665) (1996).

       The relevant provisions of Article 11 are found in OCGA §§ 34-9-412; 34-9-412.1; 34-9-413; and 34-9-414.

       OCGA § 34-8-194 (2) (A).

       OCGA § 34-9-412.

       See OCGA § 34-8-194 (2) (A); see generally Stevedoring Svcs. of America v. Collins, 247 Ga. App. 149-150 (1) (542 SE2d 134) (2001).


author: Mikell, Judge.

text:
    A01A0828.
    DURRANCE v. THE STATE.
    (549 SE2d 406)
   Mikell, Judge.

Johnny Durrance was charged in a thirteen-count indictment with five counts of aggravated assault (Counts 1, 2, 4, 6, and 8), four counts of felony obstruction of an officer (Counts 3, 5, 7, and 9), fleeing and attempting to elude (Count 10), habitual violator (Count 11), battery (Count 12), and arson (Count 13). The trial court directed a verdict of acquittal on Counts 6, 7, and 13 and entered an order of nolle prosequi on Count 11. The jury was presented with a redacted indictment containing the remaining nine counts, and it returned a guilty verdict on all counts. The trial court subsequently merged Counts 1 and 3 with Count 2, Count 5 with Count 4, and Count 9 with Count 8. Durrance was then sentenced to serve fifteen years for each of the three aggravated assaults (Counts 2, 4, and 8), in addition to twelve months for each of the two misdemeanors. This appeal followed the denial of Durrance’s motion for new trial. Finding no reversible error, we affirm.

1. In his first enumeration of error, Durrance contends that he was unfairly prejudiced in the eyes of the jury by the redacted indictment, which, he alleges, contained “unfounded” charges that were ultimately merged. However, the record reveals that Durrance failed to object to the presentation of the redacted indictment to the jury. “Objections presented for the first time on appeal furnish nothing for us to review, for this court is a court for correction of errors of law committed by the trial court where proper exception is taken.” Consequently, this enumeration presents nothing for decision on appeal.

2. Durrance next challenges the sufficiency of the evidence to support his convictions of aggravated assault. On appeal of a criminal conviction, we view the evidence in the light most favorable to support the verdict, and the defendant is no longer entitled to a presumption of innocence. We do not weigh the evidence or decide witness credibility, but simply determine whether the evidence was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of the crimes charged. Conflicts in the testimony of the witnesses are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the state’s case, the jury’s verdict will be upheld.

So viewed, the evidence shows that on July 9, 1999, Linda Givens called 911 to summon assistance to the home she shared with Durrance. The two had gotten into an argument, and Durrance, who was drunk, had slapped Givens twice. Givens also testified that Durrance had inadvertently set the bed on fire. Two Ware County deputy sheriffs, Sergeant Juan C. Spencer and Jimmy Clark, responded to the domestic disturbance call. Durrance left before they arrived. While the officers were conducting their investigation, Durrance drove by the house, ánd Clark, followed by Sgt. Spencer, gave chase. Ultimately, Durrance stopped at a traffic light and exited his truck. Deputy Clark testified that when he asked Durrance to approach Clark’s vehicle, Durrance replied, “F-you,” jumped back into his truck, and fled. The deputies radioed for additional officers and pursued Durrance. Deputies Danny Fullard and Tommy Allen and Georgia State Patrol Troopers Jeffrey A. Thomas and Mike Walker joined in the pursuit.

Sgt. Spencer and Deputy Clark, who were following each other, testified that when Durrance reached the Emerson Park area, Durrance turned around and sped toward them in their lane of traffic, forcing the officers to drive their patrol cars off the road and into a ditch to avoid being hit by Durrance. The deputies recovered their vehicles and continued their pursuit.

Deputy Fullard testified that during the high-speed chase, Durrance turned his truck around and Fullard tried to block him in. Durrance accelerated directly toward Fullard, who testified that he had to throw his car in reverse to get out of Durrance’s way. Trooper Walker testified that the officers tried to stop Durrance’s truck by using a maneuver called the precision immobilization technique, but Durrance struck Walker’s vehicle and accelerated. Finally, Durrance wrecked his truck and ran. Walker apprehended Durrance and arrested him.

Durrance testified that he never intended to strike the officers’ vehicles; rather, he was merely trying to flee. Durrance thus contends that the state failed to prove beyond a reasonable doubt that he had a specific intent to injure the officers, and he enumerates as error the trial court’s denial of his motion for a directed verdict.

Contrary to Durrance’s argument, the state was required to prove only a general intent to injure. Pursuant to OCGA § 16-5-21 (a) (2), an assault becomes aggravated when it is committed “with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” Aggravated assault committed by means of a deadly or offensive weapon, unlike aggravated assault committed with the intent to murder, rape, or rob, does not require a specific criminal intent. Although an automobile is not per se a deadly or offensive weapon, it may become one depending on the manner and means by which the vehicle is used. The question of whether an automobile has been used in such a manner so as to constitute a deadly or offensive weapon is one for the jury to resolve.

Decided April 24, 2001

Reconsideration denied June 25, 2001

Martin H. Eaves, for appellant.

Johnny Durrance, pro se.

Richard E. Currie, District Attorney, for appellee.

The evidence in the instant case, including Durrance’s own testimony that he had crossed the centerline and was speeding, was sufficient to enable any rational trier of fact to find beyond a reasonable doubt that he possessed the requisite criminal intent to commit aggravated assault.

3. In his final enumeration of error, Durrance asserts that the trial court erred in refusing to give his orally requested charge on simple assault as a lesser included offense of aggravated assault. However, absent a written request to charge, the failure to instruct the jury on a lesser included offense is not error. As Durrance failed to submit a written request, this enumeration is meritless.

Judgment affirmed.

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

       (Punctuation omitted.) Sparks v. State, 232 Ga. App. 179, 182 (3) (a) (501 SE2d 562) (1998).

        Horne v. State, 237 Ga. App. 844-845 (1) (517 SE2d 74) (1999).

        Ringo v. State, 236 Ga. App. 38, 39 (510 SE2d 893) (1999).

        Cline v. State, 199 Ga. App. 532, 533-534 (405 SE2d 524) (1991).

       Id. at 533.

        Blalock v. State, 165 Ga. App. 269, 270 (299 SE2d 753) (1983).

        Banks v. State, 169 Ga. App. 571, 572 (314 SE2d 235) (1984); Quarles v. State, 130 Ga. App. 756 (2) (204 SE2d 467) (1974).

        Cline, supra. See also Anderson v. State, 254 Ga. 470, 472 (2) (330 SE2d 592) (1985); Reynolds v. State, 234 Ga. App. 884, 885-886 (1) (b) (508 SE2d 674) (1998).

        Hawkins v. State, 267 Ga. 124, 125 (3) (475 SE2d 625) (1996).