author: Smith, Presiding Judge.

text:
    A01A1910, A01A1911.
    ROYAL v. FERRELLGAS, INC. et al.; and vice versa.
    (563 SE2d 451)
   Smith, Presiding Judge.

Clara Royal was injured in a flash fire in the kitchen of her employer, a nightclub in Cordele. She brought suit against a propane distributor, Ferrellgas, Inc., and its related companies, Ferrellgas, L.P. and Ferrellgas Partners, L.P. (collectively Ferrellgas), and against Phillips Electric, Inc., a business that sold and installed a propane stove in the kitchen several months before the fire. Ferrellgas and Phillips filed motions for summary judgment. The trial court granted Phillips’s motion and granted in part and denied in part that of Ferrellgas. The trial court also granted Ferrellgas’s motion in limine excluding evidence of the results of a safety audit it conducted before purchasing the assets of Star Gas Corporation in 1994. In the main appeal, Royal appeals from the grant of summary judgment to Phillips and the grant of Ferrellgas’s motion in limine. In the cross-appeal, Ferrellgas appeals from the trial court’s denial of those portions of its motion for summary judgment addressing Royal’s claims for negligence and failure to warn. In the main appeal, we affirm the grant of summary judgment to Phillips on Royal’s claims of negligence and negligence per se, finding that Phillips successfully pierced Royal’s allegations with regard to several essential elements of these claims. We also find that the trial court properly granted Ferrellgas’s motion in limine, because the evidence sought to be excluded was irrelevant to this action. In the cross-appeal, we reverse the partial denial of summary judgment to Ferrellgas, because Royal failed to show a causal connection between any negligence and her injuries.

The record shows that Phillips sold a gas range to the V.I.P. Club and installed it in July 1996. Phillips’s employee removed the old range and connected the new range to one branch of a pipe fitted to a T-joint. In November 1996, Royal was injured in the kitchen fire. The fire was caused by propane that leaked from the other branch of the pipe leading from the T-joint and ignited. At the time of the fire, that branch of the pipe was uncapped, open, and unconnected to any appliance.

1. Royal contends the trial court erred in granting Phillips’s motion for summary judgment. She argues that questions of material fact exist with regard to whether Phillips was negligent per se because it violated rules and regulations promulgated under OCGA § 10-1-265 when it installed the new range. She also argues that questions of fact remain with regard to whether Phillips was negligent under common law principles when it installed the stove without inspecting the right branch of the pipe or warning the club owner or the gas supplier of any problem with that branch. It is Royal’s contention that Phillips’s employees either saw or should have seen the dangerous gas line because it was immediately adjacent to the shutoff valve they used when they turned off the gas to install the new stove. Royal argues that had these employees seen the pipe, they would have known that it violated the applicable safety code and they immediately would have “red tagged” the entire LP gas system and shut it down until it could be repaired. Phillips, on the other hand, claims its employees did not see the pipe and could not have seen it, because a large deep fat fryer immediately in front of that branch of the pipe obstructed their view of it. Phillips also argues that its employees had no duty to examine the pipe because Phillips is not covered by or required to abide by the regulations in issue.

(a) We first address the issue of negligence per se. Royal maintains that in addition to the visibility of the unsafe pipe to any installer, industry standards and Georgia law required Phillips to check the condition of piping affected by their work. In support of this position, Royal points to the National Fire Protection Association’s Fuel Gas Codes, particularly NFPA 54 and 58, which, among other things, prescribe certain duties for installers of appliances.

We do not agree with Phillips that these rules apply only to purveyors of gas, and not to sellers and installers of gas appliances such as itself. NFPA 54 states clearly that it is a safety code, applying to installation of “fuel gas utilization equipment.” Further, it specifically includes rules for installing food service or commercial cooking equipment, thereby bringing Phillips within its purview. The trial court therefore erred when it ruled that as a matter of law these standards do not apply to Phillips.

But we need not reach Phillips’s argument that these are simply privately established standards, which do not establish a statutory duty. For even assuming the standards have the force of law and that Phillips violated them and was negligent per se, we conclude that summary judgment was nevertheless proper. “Negligence per se is not liability per se. Negligence, it should be remembered, is in itself only one of the essential elements prerequisite to a cause of action in a given case.” (Citations and punctuation omitted.) Herrin v. Peeches Neighborhood Grill &c., 235 Ga. App. 528, 533 (2) (509 SE2d 103) (1998). It is well established that to recover for injuries caused by another’s negligence, a plaintiff must show four elements: “a duty, a breach of that duty, causation and damages.” (Footnote omitted.) Traina Enterprises v. RaceTrac Petroleum, 241 Ga. App. 18 (525 SE2d 712) (1999). Here, no dispute exists that the fire was caused by gas escaping from an uncapped line, which ignited when the club’s owner turned on the gas to use the stove. As detailed in the discussion below, the evidence shows that this line was capped when Phillips installed the new stove. Royal therefore cannot show the element of causation, and this claim must fail.

(b) Royal also contends material issues of fact exist with regard to whether Phillips was negligent under common law principles in failing to see the uncapped pipe on the right of the T-joint and as to whether the pipe was, in fact, unsafe or uncapped, as alleged by Royal, when Phillips installed the new stove.

To prevail on motion for summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and the undisputed facts warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by either presenting evidence negating an essential element of the plaintiff’s claims or establishing from the record an absence of evidence to support such claims.

Oglethorpe Dev. Group v. Coleman, 271 Ga. 173 (1) (516 SE2d 531) (1999).

In addition to finding that Royal “was unable to establish any of the alleged legal duties owed by Phillips to” her, the trial court found that as to Royal’s claim of common law negligence, Phillips “discharged its summary judgment burden, and shifted this burden back to [Royal] through its showing . . . that Phillips did not even see the subject gas lines, due to its [sic] concealment behind a large fryer to which the subject line was probably attached.” Presumably, this analysis focuses on the elements of duty and breach, finding that because Phillips could not see the gas line, even if a common law duty to inspect it existed, it was not breached. Although not specifically noted by the trial court, Royal presented evidence to the contrary. It is therefore implicit in the trial court’s ruling that the court found that the evidence Royal presented that the line was visible was somewhat equivocal and did not suffice to rebut the unequivocal evidence presented by Phillips that it was not. We are constrained to agree with the trial court regarding this evidence.

David “Molly” Nance, a friend of the owner, Bobby Hamilton, was employed at the club. Nance testified on his deposition that he was employed at the club part-time from the time Hamilton opened it. He remembered the deep fryer, which was located next to the stove, but he testified that sometime after the club opened, it was removed and placed outside the building. He was present at the club on the day Phillips delivered and installed the new stove and a new refrigerator, because Hamilton called him and asked him to let Phillips into the club. He was questioned extensively regarding whether anything was placed in the space next to the stove and specifically whether a deep fryer was present. In response to repeated questioning, his answers differed as to whether the fiyer was present. In the first colloquy, he was asked whether he “had any recollection” whether any type of fish fryer was present on the day the new stove was installed, to which he replied: “No, I don’t think so.” His response was clarified:

Q. You don’t believe there was?
A. No.
Q. Do you know that to be a fact that there was not or you just don’t believe there was?
A. No, it was not.
Q. There was not anything there?
A. No.

This appears to be an unequivocal statement that the fryer was not present next to the stove. But he was asked again:

Q. Do you know for a fact that there was nothing there?
A. I don’t recall anything being there.
Q. I don’t want to put any words in your mouth about that, but is your testimony that there could have been, but you don’t think there was, or are you saying that there definitely was not something there.
A. I can’t say, but I just don’t think there was nothing [sic] there.

This answer indicates that Nance was not certain; it was simply his belief that the fryer was not present. Although Nance did state once that the fryer was not present, he also stated several times that he simply “believed” or “thought” it was not there. Taking Nance’s testimony as a whole, it is apparent that he could not state with certainty whether it was present or not. His testimony alone is insufficiently certain to rebut the testimony of Phillips.

Several, other witnesses testified on deposition regarding the fiyer. Arthur Lee McLendon, who cooked at the club, testified that he connected the fryer before the club opened and, in fact, connected the old stove and installed the line on the right branch of the T-joint, to hook up the fryer. He agreed that the fryer was removed from the club because it did not work properly. When the fryer was removed, he capped the right branch of the line and sealed it. He then tested the line for leaks, using a match, and found none. Timmy Felton, who had a car repair business next door to the club, testified on deposition that he saw the fryer “laying out the door” of the club. Neither of these witnesses testified whether or not the fryer was present when the new stove was installed.

Estella Kinchens testified she visited her niece who worked at the club. She testified there was a deep fryer in the kitchen, but she believed it was not to the right of the stove, but to its left. Kinchens described a different-looking fryer than the one described by Nance, and she testified that this fryer was in operation three months before the accident. She also testified that even with that fryer in place, a portion of the gas line behind it was visible.

Hamilton attempted to clear up any discrepancies when he testified on deposition. He remembered another fryer being in the kitchen when the club first opened. This one was a small, portable fryer that operated on a small propane cylinder. He also testified that there was yet another fryer in the kitchen several months before the club closed, which would be after the fire. This fryer was brought in later and positioned in the same space, but it was never connected.

Once Phillips came forward with a prima facie showing that it was entitled to summary judgment because the fryer blocked its view, the burden shifted to Royal to come forward with rebuttal evidence sufficient to show a genuine issue of fact regarding the presence of the fryer. The evidence presented by Royal did not accomplish this. Three different fryers were mentioned by various witnesses. But no witness testified unequivocally that a fryer was not present on the day Phillips delivered and installed the stove. In fact, Nance testified that no other person was at the club when the new stove and refrigerator were delivered and installed, although someone could have come by later. But we need not determine whether Royal’s equivocal evidence would serve to rebut the unequivocal evidence presented by Phillips. That is because Phillips also pierced Royal’s allegation regarding the element of causation, although that issue was not addressed by the trial court.

Expert opinion was presented showing that the fire was caused when the stove burner’s flame ignited gas escaping from the uncapped right branch of the gas line. In an expert’s opinion, that line was uncapped when an appliance was removed. This expert testified that in his opinion, the line was “opened” when Hamilton turned the valve on, as he did each time he used the stove. Because Kinchens testified that a fryer was operational three months before the fire, it must have been attached to the gas line. Given Hamilton’s practice of turning the gas off when no cooking was taking place, the expert opined that the appliance attached to the right branch of the gas line must have been removed recently, leaving the gas line uncapped, sometime between the last time the stove was used and the time of the fire. Royal’s own expert acknowledged that the open, uncapped line may not have existed until shortly before the accident. Even if Phillips was negligent, as testified to by Royal’s expert, its negligence therefore was not the proximate cause of Royal’s injuries, because the fire would not have occurred if the line had not been uncapped shortly before the fire and the gas turned on by Hamilton. The trial court therefore properly granted summary judgment to Phillips on Royal’s negligence claim. A trial court’s ruling granting summary judgment that is right for any reason must be affirmed. Costrini v. Hansen Architects, 247 Ga. App. 136, 138 (1) (543 SE2d 760) (2000).

2. Royal contends the trial court erred in granting Ferrellgas’s motion in limine to exclude memoranda generated in anticipation of Ferrellgas’s purchase of Star Gas. We do not agree.

Before Ferrellgas purchased the assets of Star Gas, it conducted random safety inspections at Star Gas customer sites as a part of due diligence. The inspections consisted of cursory surveys of the outsides of various customer locations. The memoranda note certain safety concerns but indicate that these concerns should not prevent the purchase of Star Gas. It is undisputed that the V.I.P. Club was not inspected and that the concerns cited in the memoranda were unlike the causes of this fire, which was caused by an open gas line inside the customer location. The trial court found that Royal could not show the similarity required to make the memoranda admissible. We agree with the trial court’s finding, and we also find that this material was not relevant to the issues in this case and that its admission would be unduly prejudicial.

In general, a party’s conduct with regard to the incident in issue may be proved only by the facts of that incident. In addition to having the potential for prejudicing the jury, a party’s previous acts or its general character for carelessness cannot be probative of the issue. Taylor v. RaceTrac Petroleum, 238 Ga. App. 761, 762 (519 SE2d 282) (1999) (physical precedent only). Although Royal concedes that the memoranda regarding violations at other locations cannot be used to establish negligence in this case, she insists that the memoranda are admissible to show that Ferrellgas had notice of the danger here. We cannot see how. “Generally, it may be said that it is not permissible, for the purpose of establishing whether a condition at one place is dangerous to show conditions at places other than the one in question.” (Citations and punctuation omitted.) Greene v. Pied mont Janitorial Svcs., 220 Ga. App. 743 (1) (470 SE2d 270) (1996). None of the violations cited in the memoranda involved open or uncapped lines, and even Royal’s expert acknowledged that the danger may not even have existed until shortly before the fire.

The issue in this action is whether the defendants were negligent. That must be ascertained from the circumstances surrounding the fire, not by the defendants’ reputation or past acts. An exception exists when

the evidence tends to prove some pertinent fact in the case on trial, such as showing knowledge of the defect claimed or causation, if it rebuts a particular contention regarding how the accident happened or shows that the same dangerous condition existed previously. Even under this exception, the evidence not only must be relevant but must also be examined to ensure that it will not consume too much time, confuse the issues, or present a potential for undue prejudice or unfair surprise.

(Citations omitted.) Goss v. Total Chipping, 220 Ga. App. 643, 644 (2) (a) (469 SE2d 855) (1996). Even if this evidence could be admitted under the very limited exceptions to the general rule, contrary to Royal’s bare assertion she would be required to prove substantial similarity between the code violations found outside at other locations and the open and uncapped line inside the kitchen at the V.I.P. Club that caused the fire. Greene, supra at 744 (1); Engram v. Sonny Campbell’s Gulf, 200 Ga. App. 40, 42 (3) (406 SE2d 551) (1991). In addition to failing to show that the violations discussed in the memo-randa were similar to any at the V.I.P. Club, Royal has presented no evidence showing that the violations at other locations resulted in injuries from explosions or fires or that a causal connection exists between Ferrellgas’s alleged negligence at those locations and the fire at the club.

Even if Ferrellgas’s conduct in other situations, as evidenced by the memoranda, may have some relevance to the issue of punitive damages, liability for compensatory damages must be established before the issue of punitive damages comes into play. And our Supreme Court has noted that

the best way to guarantee a fair trial and ensure judicial economy is to continue to give the trial judge discretion on when to admit the evidence of prior and subsequent acts. The general rule is that trial judges may exercise discretion in excluding relevant evidence if its probative value is substantially outweighed by the risk that its admission will confuse the issue, mislead the jury, or create substantial danger of undue prejudice.

(Footnote omitted.) Webster v. Boyett, 269 Ga. 191, 195 (1) (496 SE2d 459) (1998). Here, the trial court correctly concluded that under the principles discussed above, the memoranda should not be admitted.

3. Royal’s claims against Ferrellgas were brought under theories of negligence (including failure to warn, failure to supply gas detectors, and a host of other duties Royal claimed were breached), negligence per se, strict liability, and breach of implied warranty. The trial court concluded as a matter of law that Royal “was unable to establish” duties on the part of Ferrellgas “to learn of the dangerous propensities of LP gas, in order to inform the consumer,” to supply its customers with and install gas detectors, or to warn of the need for such detectors and granted summary judgment to Ferrellgas as to these claims. Summary judgment was also granted as to Royal’s claims for breach of implied warranty and strict liability. The court concluded that the remaining legal duties alleged by Royal to have been breached as part of her claim for common law negligence were “supported by adequate legal authority. Furthermore, the breach, causation, and damage elements of the remaining negligence claims present sufficient disputes of material fact which warrant determinations by the trier of fact.” Summary judgment was denied as to these negligence claims. Summary judgment was also denied as to Royal’s claim of negligence per se. In the cross-appeal, Ferrellgas contends the trial court erred in denying its motion for summary judgment as to the remaining claims.

(a) The remaining negligence claims are based upon Royal’s claim that Ferrellgas breached duties to: maintain the tank, gas lines, and gas in reasonably safe condition; warn her or the club of the dangers of LP gas and the tank and lines; properly odorize the LP gas; train its employees about LP gas’s characteristics, codes, and laws; inspect the club’s tank, gas lines, and appliances to determine their safety; and perform necessary leak and pressure tests.

(i) Although evidence was presented showing that some violations of NFPA standards existed with regard to the tank, no evidence was presented showing that the condition of the tank and lines was involved in any way in causing the fire. Similarly, evidence was presented that no leaks existed in the system at the club, other than the uncapped line. It follows that the element of causation cannot be shown with regard to any breach of the duties to maintain the tank, lines, and appliances in safe condition, to test for leaks, or to train employees regarding standards and laws.

(ii) Royal argues that Ferrellgas had a duty to warn her about the dangerous properties of LP gas. She admitted smelling gas before the fire, but she did not react to the smell and the smell did not appear to last. Royal’s expert testified on deposition that Royal did not smell the gas strongly because propane is heavier than air, and the gas may have stratified at lower levels. The expert also opined that the smell of fish Royal was preparing may have masked the odorant in the gas. Royal argues, therefore, that Ferrellgas had a duty to warn her both about possible stratification and about the masking effect of other odors.

The evidence showed, however, that the club was provided with warning information about these very dangers. Several safety booklets warn customers to smell for gas at floor level because propane is heavier than air and that if gas is smelled, the customer should shut off the gas and all appliances and switches, get outside, and call the supplier from a neighbor’s telephone. These booklets also inform customers that on rare occasions, the smell of gas can fade or can be masked by other strong odors. There can be no breach of a duty to warn when the warning was actually given, but Royal’s employer did not pass on the warning or Royal herself failed to heed it. See generally Powell v. Harsco Corp., 209 Ga. App. 348, 349-350 (2) (433 SE2d 608) (1993) (alleged inadequacy of instructions cannot be proximate cause of injury when instructions provided but not read).

In addition, Royal testified on her deposition that she knew that smelling even a slight odor of gas could indicate that a leak existed and that propane was flammable. She also knew that cooking odors could mask other odors and that if she smelled gas, she should leave the building. Hamilton also acknowledged that he was aware that propane can pool at low levels and can sometimes be undetectable by smell. All the information Royal alleges that Ferrellgas should have conveyed to her was therefore known by her and her employer. When the injured party is aware of the danger, failure to warn of that danger cannot be the proximate cause of the injury. Bodymasters Sports Indus. v. Wimberley, 232 Ga. App. 170, 174-175 (2) (501 SE2d 556) (1998). Because proximate cause is an essential element of a claim for negligence and Ferrellgas has pierced that element of Royal’s claim, the trial court erred in denying Ferrellgas’s motion for summary judgment on the remaining negligence claims notwithstanding that some issues of fact may remain.

(b) The trial court correctly concluded that Ferrellgas, as an installer and operator of equipment for storing, handling, transporting, and using LP gas, is subject to the rules and regulations promulgated under OCGA § 10-1-265. According to Royal’s expert, three code violations existed outside the club: an improper heater vent; an inadequately secured propane line; and the absence of a protective sleeve where the gas line pierced the wall of the building. To prevail on her claim of negligence per se, Royal must show a causal relationship between these violations of Ferrellgas’s statutory duty and the injuries she sustained. Val D’Aosta Co. v. Cross, 241 Ga. App. 583, 585 (526 SE2d 580) (1999). But it is undisputed that none of these violations was the proximate cause of the leak inside the club that caused the accident.

Decided March 12, 2002

Reconsideration denied April 3, 2002

James W. Hurt, for appellant.

Love, Willingham, Peters, Gilleland & Monyak, Allen S. Willing-ham, Wesley C. Taulbee, Gardner, Willis, Sweat & Goldsmith, Donald A. Sweat, for appellees.

Royal argues, however, that had Ferrellgas discovered and repaired these outside violations, it would have been required to shut down the system and would have been forced to conduct an inspection, which would have revealed certain problems inside the kitchen. But it is also undisputed that even the problems cited by Royal inside the kitchen — improper nuts, an improper valve, and a bend in the gas line — were not the cause of the fire. None of these ever leaked gas; the accident was caused by gas flowing from the uncapped, open gas line to the right of the T-joint, which was ignited by a stove burner. No evidence was presented showing that Ferrellgas had any knowledge of an open line or that it could have discovered such an open line. The last time a Ferrellgas employee was inside the kitchen was almost two years before the accident, and the line was capped at that time. Repairing these problems, therefore, would not have prevented the fire or the injuries to Royal. Because Royal cannot show a causal connection between any violation of Ferrellgas’s statutory duty and her injuries, the trial court should have granted summary judgment to Ferrellgas on Royal’s claim of negligence per se.

Judgment affirmed in Case No. A01A1910. Judgment reversed in Case No. A01A1911.

Barnes and Phipps, JJ, concur.

       Royal does not appeal from the trial court’s grant of partial summary judgment to Ferrellgas.

       We note, nevertheless, that NFPA 54 was adopted in Georgia as part of the Rules and Regulations for Liquefied Petroleum Gases by the State Office of Insurance and Safety Commissioner, under the authority of OCGA § 10-1-265. Rule 120-3-16-.06 provides that NFPA Codes and Standards 54, 58, 59, and 704 are “hereby adopted.”

       Nance was also Royal’s boyfriend.

       Interestingly, Wayne Rountree, who worked for a local outlet of Ferrellgas’s predecessor until October 1994, testified on his deposition that he installed the propane tank at the club and hooked up the “old” stove; that there was a fryer there but it was not hooked up; and that he capped the gas line to the fryer.


source: Caselaw Access Project

license: Public Domain

text:
    A01A2125.
    In re SHOOK.
    (563 SE2d 435)
   Smith, Presiding Judge.

Mitchell M. Shook, an attorney, appeals from the judgment finding him in contempt of court. Shook contends the trial court erred in holding him in contempt without having referred the matter to another judge. Shook’s entire argument is based upon his contention that he was held in “indirect” contempt. We disagree with this characterization, and, finding no error, we affirm.

The facts surrounding Shook’s being held in contempt are set forth in detail in Slater v. State, 251 Ga. App. 620 (555 SE2d 8) (2001). For purposes of this appeal, it is sufficient to note that Shook announced “ready” for a bench trial in a criminal trial in which he represented the accused. Before the case was called, Shook had been given a written waiver of jury trial, and he led the court to believe a jury trial was being waived. After the court found his client guilty and imposed a sentence, Shook asserted that his client had not waived a jury trial in writing, and the court then instructed Shook to have a seat in the courtroom with his client, specifically telling Shook he would have an opportunity to go before a jury. Id. The court then turned to other, matters. Shook asked if it was a “jury time,” and the court responded: “This will be.” Shook tried to inquire when the jury would come in, and the trial court again assured him he would have the opportunity to go before a jury. Approximately one and one-half hours later, the trial court learned that both Shook and his client had left the courtroom, in direct contravention of the court’s instruction. In fact, later that day, at a hearing on the issue of contempt, Shook admitted he had deliberately not executed the jury trial waiver so that his client could have a second chance if he was dissatisfied with the court’s disposition of the case at a bench trial. Shook also admitted that he “absolutely” did not remain in the courtroom after being told to do so, because he believed the court had “absolutely no right” to tell him to remain.

These actions on Shook’s part amounted to contempt. Acts of contempt “are either direct, meaning they are committed within the sensory perception of the judge, or they are indirect, meaning they occur outside the sensory perception of the judge.” Grantham v. Universal Tax Systems, 217 Ga. App. 676, 677 (2) (458 SE2d 870) (1995). Clearly, Shook’s action in leaving the courtroom occurred within the sensory perception of the trial court. It was therefore a direct contempt.

As such, Shook was not even entitled to a hearing as a matter of right. Martin v. Waters, 151 Ga. App. 149, 150 (1) (259 SE2d 153) (1979). And, although recusal of the judge involved in the contumacious conduct “may be required in some contempt proceedings, this requirement generally does not apply in cases of direct contempt. [Cit.]” Barlow v. State, 237 Ga. App. 152, 157 (3) (513 SE2d 273) (1999).

Shook wilfully disobeyed the court’s lawful instruction to remain in the courtroom. Whether he believed he was justified in doing so is irrelevant. He disregarded the court’s command, and in doing so he “disrupted court proceedings and interfered with the orderly administration of justice.” (Citations and punctuation omitted.) Barlow, supra at 157 (4). The trial court did not err in finding him in direct contempt.

Decided January 24, 2002

Reconsideration denied April 3, 2002

Jason A. Craig, for appellant.

Mitchell M. Shook, pro se.

J. Franklin Edenfield, Solicitor-General, for appellee.

Judgment affirmed.

Barnes and Phipps, JJ, concur.


author: Mikell, Judge.

text:
    A02A0150.
    RICHARDS v. THE STATE.
    (563 SE2d 551)
   Mikell, Judge.

A Spalding County jury convicted Jerome Melvin Richards of aggravated assault. On appeal, Richards challenges the sufficiency of the evidence. He also argues that the trial court erred by removing him from the courtroom and trying him in absentia, and by informing the jury that he was removed because of his disruptive behavior. We affirm.

On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. An appellate court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses. To sustain the conviction, the evidence must be sufficient to authorize the jury’s finding of the defendant’s guilt of the crime charged beyond a reasonable doubt.

So construed, the evidence shows that on November 21, 1998, Richards physically abused his girlfriend, Cheryl Blackmon. Blackmon testified that Richards slapped her in the face, causing her mouth to bleed, and that he threatened her with a hammer. Blackmon ran into her upstairs bathroom, raised the window, and yelled for help. As Richards stood over her in the bathroom, Blackmon heard her neighbor, Charlotte Penn, ask if everything was okay. Blackmon replied that everything was not okay and was eventually able to coax Richards down the stairs.

Blackmon held onto Charlotte after she and Richards walked down the stairs. Shortly thereafter, Charlotte’s brother, Deon Penn, entered Blackmon’s apartment. As Richards tried to pull Blackmon away from Charlotte, Deon told Richards not to touch Charlotte. Blackmon ran to Charlotte’s apartment and called the police. As she waited for the police to arrive, Charlotte and Deon came into the apartment. Charlotte had blood on her clothes, and Deon’s face and head were bleeding.

Charlotte testified that after Blackmon left, she began to walk to her apartment. As Deon waited for her to enter her apartment, Richards tried to enter as well. When she told Richards that he could not come in, he turned to walk away, but then suddenly turned back and hit Deon in the head with a claw hammer several times. Charlotte testified that Deon did not hit or push Richards before Richards attacked him with the hammer.

Deon testified that he told Richards that he could not enter Charlotte’s apartment. As Deon waited for Charlotte to enter her apartment, Richards hit him with what he believed was a hammer, and Deon fell to his knees. Richards continued to hit Deon in his head. Deon’s injuries required 25 stitches in his left eye and 16 staples in his head and overnight hospitalization. Richards was indicted for the assault on Deon Penn.

1. In his first enumeration of error, Richards argues that the evidence was insufficient to sustain his conviction. We disagree.

OCGA § 16-5-21 (a) (2) provides that “[a] person commits the offense of aggravated assault when he or she assaults [w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” We find the evidence that Richards beat Deon Penn in the head with a hammer more than ample to support Richards’ conviction for aggravated assault. Richards’ argument in his brief that Deon’s injury occurred because they were fighting is not supported by the evidence.

2. Richards next argues that the trial court erred in removing him from the courtroom and trying him in absentia. In Illinois v. Allen, the United States Supreme Court stated:

[A] defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive and disrespectful of the court that his trial cannot be carried on with him in the courtroom. Once lost, the right to be present can, of course, be reclaimed as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concepts of courts and judicial proceedings.

On appeal, we utilize the abuse of discretion standard.

In State v. Fletcher, our Supreme Court held that Illinois v. Allen mandates that the trial “court make inquiry as to the state of mind of the defendant or warn him of the consequences of misconduct and inform him that by proper conduct he could regain the right to be present.” In this case, the record shows that Richards’ questionable behavior began as soon as he entered the courtroom. The jury panel was not yet present. Richards stated: “Where is — Where McBroom at, man, my emissary [sic]? Where is he at any of /all mother fuckers? And you better take these mother fucking handcuffs off me or I’ll blow my brains out right here because you ain’t not fixing to railroad me to no God-damned chain gang, ain’t nare [sic] one of /all.” As the court announced Richards’ case, the following colloquy occurred:

Court: [L]et the record reflect that —.
Richards: Care nothing ‘bout no mother fucking record, man.
Court: That the —.
Richards: Damn your record.
Court: Court presently has —.
Richards: You, too.
Court: — in front of it —.
Richards: What the fuck you talking about?
Court: — the case of the State of Georgia versus —.
Richards: Damn the State, man.
Court: — Jerome Melvin Richards.
Richards: What the fuck you talking about? Damn right that’s me, mother fucker.

The court read the charge and indictment number with continuous interruptions from Richards and then instructed the bailiffs to remove Richards from the courtroom. The trial judge then informed counsel that he planned to gag and shackle Richards and possibly tape his mouth, if necessary, to which Richards’ counsel objected. Richards was allowed to return to the courtroom, and upon his return, he immediately began to curse at the judge and everyone else in the courtroom. He was never gagged or shackled.

As the court advised Richards of his right to be present, the following colloquy occurred:

Court: I am obligated —.
Richards: You ain’t fixing to try me nowhere.
Court:- — to inform you —.
Richards: You ain’t — You ain’t here fussing that, man. Go ahead and fuck —.
Court: — that you have a right to be in here during your trial.
Richards: Go ahead and fuck me up or put me back in. . . .
Court: However —.
Richards: I know a bunch of them that I did (inaudible) Goddamn hearts.
Court: — if you continue —.
Richards: You got them big ‘ol mother fucker football players mother fuckers want to whop my mother fucking ass. . . .
Court: — your disruptive attitude —.
Richards: You got my hands tied to me, man, what the hell. you think I is, man? Fuck you.
Court: — I’ll have to remove you from this courtroom.

As the court began to instruct Richards in accordance with the mandates in Fletcher, the record reflects that Richards made loud noises to prevent the court from being heard. The transcript does show, however, that the trial judge told Richards that he could come back into the courtroom if he changed his attitude. Richards replied that he did not want to be tried in the courtroom. Richards was removed, and the trial judge explained on the record the steps he had taken to inform Richards of his rights. The jurors were then brought in for voir dire.

After voir dire, Richards’ counsel informed the court that he had asked Richards if he wished to go over the jury list with him and assist in selecting the jury, and Richards told him no. Richards’ counsel also asked to meet with Richards to ask if he wanted to come into the courtroom to assist with the trial. The trial judge allowed him to do so and asked that he also inform Richards that he had a right to return to the courtroom if he could conduct himself in the proper manner. Outside the jury’s presence, Richards’ counsel informed the court that Richards did not want to assist in the trial or appear in the courtroom during the trial.

It is clear from the record that the trial judge warned Richards that he would be removed from the courtroom because of his conduct and informed him that he had a right to return if he could conduct himself appropriately. Accordingly, we find that under the circumstances of this case, the trial court did not abuse its discretion by removing Richards from the courtroom and proceeding with his trial in his absence.

Decided April 3, 2002.

Sullivan & Sturdivant, Harold A. Sturdivant, Michele W. Ogle-tree, for appellant.

3. In his last enumeration of error, Richards contends that the trial court erred by informing the jury panel that Richards would not be present during his trial because he had been removed for disruptive behavior. In Williams v. State, we rejected a similar argument. In that case, the defendant argued that the trial court expressed an opinion concerning his guilt when it ordered the defendant’s removal from the courtroom and told the jury that he was removed because the court would not be disrupted by his behavior. We held that the trial court’s statement did not constitute an expression or intimation of the court’s opinion as to the defendant’s guilt. Here, the trial court told the jury:

Mr. Richards himself is not in the courtroom. At this time briefly let me just state to each of you that Mr. Richards is not in here in that I had him removed from the courtroom because of some disruptive behavior. In the event that Mr. Richards changes his behavior he is welcome back in. He certainly has a right to be in this courtroom and to participate in this trial, at this time he has chosen not to.

After a bench conference, the court added: “And let me also instruct you that his failure to be in the courtroom should not be inferred or used against him in any form or fashion by you and, of course, the Court; and it’s not to infer any type of guilt on his part concerning this particular case.” As we concluded in Williams, we find that the trial court’s explanation as to the defendant’s absence in the case sub judice did not constitute an expression of the court’s opinion as to Richards’ guilt.

Judgment affirmed.

Andrews, P. J, and Phipps, J., concur.

William T. McBroom III, District Attorney, Robert H. English, Assistant District Attorney, for appellee.

       (Citation omitted.) Hutchinson v. State, 232 Ga. App. 368, 369 (501 SE2d 873) (1998).

       397 U. S. 337 (90 SC 1057, 25 LE2d 353) (1970).

       Id. at 343.

        Weldon v. State, 247 Ga. App. 17, 19 (1) (543 SE2d 56) (2000).

       252 Ga. 498 (314 SE2d 888) (1984).

       Id. at 501.

       Supra.

       183 Ga. App. 373 (358 SE2d 914) (1987).

       Id. at 375 (2).


author: Johnson, Presiding Judge.

text:
    A01A1908, A01A1909.
    HERRIN BUSINESS PRODUCTS, INC. v. ERGLE et al.; and vice versa.
    (563 SE2d 442)
   Johnson, Presiding Judge.

This is a wrongful death case arising out of an automobile collision in which Monica Ergle was killed when her car was struck by a pickup truck driven by Brian Edwards. Ergle’s husband, Robert (“Ergle”), acting individually and as representative of his late wife’s estate, brought the action against Edwards, his employer Herrin Business Products, Inc. (“Herrin”), and others. Herrin moved for summary judgment, and the trial court granted the motion in part. Herrin then sought interlocutory review of the trial court’s order to the extent it denied the remaining portions of its motion for summary judgment, and this court granted Herrin’s application. In Case No. A01A1908, Herrin appeals the denial of its motion for summary judgment. In the companion case, Case No. A01A1909, Ergle appeals the trial court’s grant of partial summary judgment to Herrin.

Edwards was a diabetic and had exhibited symptoms of low blood-sugar levels shortly before leaving his job at Herrin at the end of his shift on the day of the collision. In order to alleviate his symptoms, fellow employees at Herrin gave Edwards food and a beverage and had him wait a few minutes after he had consumed the food before leaving. A short time after he left, Edwards drove his pickup truck onto the wrong side of a divided highway and collided with Monica Ergle’s vehicle. Monica Ergle died in the collision.

In his lawsuit, Ergle claimed Herrin was negligent in failing to satisfy the duties it assumed in attempting to render aid to Edwards, and in retaining an incompetent employee.

Herrin argued below that it was entitled to summary judgment because: (a) it is exempt from liability in rendering gratuitous emergency care, based on the Good Samaritan statute; (b) it is not liable under Restatement of Torts (Second), § 324A because there is no evidence that its actions in performing an assumed duty increased the risk of harm to third persons; and (c) it could not be held liable for negligent retention of an employee when the injury occurred during the employee’s commute from work. The trial court granted Herrin’s motion for summary judgment as to Ergle’s claim that Herrin was negligent in retaining Edwards as an employee, but denied its summary judgment motion as to Ergle’s claim that it is liable because it was negligent in performing an assumed duty. It also denied the motion as to Herrin’s affirmative defense based on its claim of immunity under Georgia’s Good Samaritan statute.

Edwards had been an employee of Herrin for about two years before the date of the collision giving rise to this case. His job involved delivering and moving copying equipment. Although his job duties included driving a truck, he had not driven for Herrin for several months before the collision with Ergle occurred. Instead, he rode as a passenger in a company truck driven by another employee. Despite his diabetes, Edwards chronically displayed an inability or unwillingness to control his blood-sugar level. As a result, he was often unresponsive and displayed symptoms of lethargy at work. This occurred two or three times per month. Consequently, there were many occasions when fellow employees provided him with food and drink and more or less forced him to consume it. This usually resulted in the alleviation of his symptoms within a matter of minutes. Edwards’ recovery would “almost be instantaneous.”

On November 2, 1998, around 3:15 or 4:00 p.m., Edwards and a co-worker were delivering equipment when the co-worker noticed that Edwards was lethargic and unresponsive. The co-worker allowed Edwards to sit and wait while he accomplished the work at hand. The co-worker then drove the men back to the company office, arriving around 4:15 to 4:45 p.m. The exact time frame is in conflict, but it is uncontroverted that Edwards was not provided with any food or drink prior to the return to the office. And it is also uncontroverted that the work day was drawing to an end when Edwards and his co-worker arrived back at the office.

Once Edwards arrived back at the office, he started to get into his truck and leave for the day. A co-worker told Paul Herrin, who is one of Edwards’ supervisors, that Edwards was having one of his diabetic attacks and needed something to eat. Although Edwards appeared to be in a hurry to leave work, Paul Herrin had him wait. From his own funds and without any expectation of reimbursement, Paul Herrin gave another employee money to go to a nearby restaurant to obtain food and a soft drink for Edwards. The employee brought the food and drink to Edwards and watched as he began to consume it. Within five or ten minutes, when Edwards again started to leave the office, Paul Herrin asked if he was okay. Edwards replied that he was fine. Paul Herrin asked Edwards if he had eaten the food, and Edwards responded that he had eaten some of it. Edwards’ speech was normal, and he did not appear to be experiencing any problems. The work day now over, Edwards left for the day, driving his own pickup truck and taking the rest of the food with him.

Approximately ten to eighteen minutes later, while speeding and driving on the wrong side of a divided highway, Edwards was involved in the subject collision. Medical tests showed that Edwards had a dangerously low blood-sugar level at the time. Monica Ergle was killed in the collision.

Case No. A01A1908

1. Herrin contends that the trial court erred in denying its motion for summary judgment because it is exempt from civil liability as a “Good Samaritan” pursuant to OCGA § 51-1-29. We agree with the trial court that the Good Samaritan statute does not apply.

OCGA § 51-1-29 provides, in relevant part, that any person who in good faith renders emergency care at the scene of an accident or emergency without making any charge therefor shall not be liable for civil damages as a result of any act or omission by such person in rendering emergency care or as a result of any failure to act to provide or arrange for further medical treatment or care.

The Good Samaritan statute is inapplicable since the very repetitive nature of Edwards’ blood-sugar problems at work removed the incidents from any reasonable definition of emergency. The incidents had become a regular event in the lives of Edwards and his coworkers. Moreover, on the day of the incident, the fact that Edwards sat for about an hour while others continued working, was transported back to the office with no particular urgency, was given food and an opportunity to consume portions of it, waited, and then left takes the incident out of the statute’s “emergency” category. The trial court correctly denied Herrin’s motion for summary judgment based on this affirmative defense.

2. Herrin contends the trial court erred in denying its motion for summary judgment on Ergle’s remaining claim, that Herrin was negligent in that it undertook a duty to render aid to Edwards, but then failed to make certain that he was competent to drive before allowing him to leave work. According to Herrin, it was entitled to summary judgment because there was no evidence that the actions it took increased the risk of harm to Ergle. We agree with Herrin that it was entitled to summary judgment on this issue.

Ergle’s cause of action is based on § 324A of the Restatement (Second) of Torts, which provides:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

Of these three conditions, only the first, the increase of the risk of harm, arguably applies to the facts in the case before us. Therefore, Herrin would not be liable to Ergle as a matter of law if the record indicates that any negligence in performing its undertaken duty did not increase the risk of harm to the decedent. Under Lau’s Corp. v. Haskins, Herrin is not required to prove the negative fact but may rely on the absence of proof by Ergle. The evidence shows that upon noticing that Edwards was experiencing symptoms of his diabetes, Herrin employees kept Edwards from driving away, provided him with nourishment, had him sit and consume some of the food and drink, and then assumed, based on his appearance, his responses, and their past experiences of successfully alleviating his symptoms, that he had recovered from his symptoms as they watched him leave. There was no evidence whatsoever that these actions by Herrin increased the risk of harm Edwards presented to other drivers. As the trial court alluded to in its order, if there had been any increased risk of harm, it might have been shown by medical evidence explaining such matters as the effects of eating, drinking, or time lapse on a person experiencing diabetic shock and how these factors affect a person’s ability to drive. The lack of any such evidence authorized and required the grant of summary judgment in favor of Herrin.

Furthermore, Ergle has not presented evidence that Herrin could have lawfully prevented Edwards from driving away. It is not disputed that his work day was over, and he was off the clock. Herrin had no supervisory authority or control over Edwards under these circumstances, and its failure to restrict him from driving could not be a supervening or contributing proximate cause of the collision. For this reason as well, Herrin was entitled to judgment as a matter of law.

Case No. A01A1909

3. Ergle complains that the trial court erred in granting summary judgment to Herrin on the issue of whether its role as Edwards’ employer imposed upon it a duty to come to Edwards’ assistance and to do so without negligence. Specifically, Ergle urges that when Edwards became helpless while in the scope of his employment and while under the control of his employer, Herrin had “a duty to get defendant Edwards to a place of safety, not just to watch him drive off.”

In general, an employer has no legal duty to exercise any degree of care or diligence to protect an employee from the hazards of a perilous situation brought about through no fault of the employer. Ergle has not shown that the situation presented in this case comes within any exception to this rule.

4. Ergle contends the trial court erred in granting summary judgment to Herrin on the theory of negligent retention of an incompetent employee. The incompetency, Ergle argues, was that Edwards failed or refused to monitor or control his diabetes. Although Ergle’s argument is not clear, he seems to argue that Edwards’ failure to control his diabetes rendered him incompetent, that Herrin knew of this incompetence, that Herrin should have foreseen that Edwards’ incompetence would cause him to be a dangerous driver, and that Herrin was negligent in not firing Edwards before the accident occurred. The trial court correctly granted Herrin summary judgment as to this claim.

Pursuant to OCGA § 34-7-20, an employer must not retain an employee when the employer has knowledge of his incompetency. In order to sustain a claim for negligent retention, a claimant must show that the employer knew or should have known of the employee’s propensity to engage in the conduct which caused the plaintiff’s injury. Proof of such propensity must consist of evidence substantially related to the injury-causing conduct.

Here, there was no evidence that Herrin knew that Edwards had a propensity to drive, let alone drive dangerously, while he was suffering from low blood-sugar levels. In fact, he had not been driving for Herrin for several months before the accident. Nor is there any evidence that Edwards ever drove home impaired before the day at issue. The evidence simply does not show that the employer knew or should have known that Edwards had a propensity to engage in the conduct which caused Ergle’s injury.

Decided March 6, 2002

Reconsideration denied April 4, 2002

Brannen, Searcy & Smith, David R. Smith, for appellant.

Callaway, Braun, Riddle & Hughes, Dana F. Braun, R. Kran Riddle, for appellees.

Furthermore, Edwards was not acting within the course of his employment when the accident occurred. Edwards left work and was driving home at the time of the accident. Generally, a claim for negligent retention cannot be brought as a result of injuries caused by an employee during his commute from work since, to be actionable, the tortious act must occur during the tortfeasor’s working hours or while the employee is acting under color of employment. An employer is shielded from liability for those torts his employee commits on the public in general. Herrin is not liable to Ergle for injuries resulting from Edwards’ commute home.

5. In sum, even though Herrin is not shielded from liability under the Good Samaritan statute, as a matter of law it cannot be held liable under the Restatement of Torts, § 324A, or for negligent retention of an employee, or for failing to help an employee. Because Ergle has no viable claims remaining against Herrin, summary judgment must be entered in Herrin’s favor as to all claims asserted against it. This Court does not address any motions as to other defendants in this case, as they are not before us on appeal.

Judgment reversed in Case No. A01A1908. Judgment affirmed in Case No. A01A1909.

Ruffin and Ellington, JJ, concur.

       See generally Henry v. Barfield, 186 Ga. App. 423, 424 (1) (367 SE2d 289) (1988) (physical precedent only); Clayton v. Kelly, 183 Ga. App. 45, 47 (357 SE2d 865) (1987).

       See Magueur v. Dept. of Transp., 248 Ga. App. 575, 576 (547 SE2d 304) (2001).

       Contrary to Ergle’s contention on appeal, Herrin did make this argument in the trial court. See the supplemental brief Herrin filed on November 7, 2000, in support of its motion for summary judgment. Ergle initially raised the issue of liability under the Restatement in a responsive brief filed on August 30, 2000.

       261 Ga. 491 (405 SE2d 474) (1991).

       See Bruno’s Food Stores v. Taylor, 228 Ga. App. 439, 440 (491 SE2d 881) (1997) (physical precedent only); Caven v. Warehouse Home &c., 209 Ga. App. 706 (434 SE2d 532) (1993).

        Ficken v. Southern Cotton Oil Co., 40 Ga. App. 841 (151 SE 688) (1930).

       See, e.g., Bell v. Norfolk Southern R. Co., 222 Ga. App. 788, 789 (2) (476 SE2d 3) (1996) (in FELA cases, an employer must render medical assistance when an employee, to the employer’s knowledge, becomes so seriously ill while at work as to render him helpless to obtain medical aid or assistance for himself).

        Tecumseh Products Co. v. Rigdon, 250 Ga. App. 739, 740 (1) (552 SE2d 910) (2001).

       Id.

       Id. at 741 (1).

        New Madison South Ltd. Partnership v. Gardner, 231 Ga. App. 730, 734 (2) (499 SE2d 133) (1998); Lear Siegler, Inc. v. Stegall, 184 Ga. App. 27, 28-29 (360 SE2d 619) (1987).

        New Madison South Ltd. Partnership, supra.


text:
    A01A2371.
    CASH v. THE STATE.
    (563 SE2d 459)
   Johnson, Presiding Judge.

A jury found JoAnn Cash guilty of two counts of Medicaid fraud. She appeals from the convictions entered on the jury’s verdict challenging, among other things, venue and the sufficiency of the evidence. The critical issues in this case are controlled by the Supreme Court of Georgia’s decision in State v. Johnson and this court’s recent decision in Culver v. State Because the state failed to meet its burden of establishing venue beyond a reasonable doubt, we reverse Cash’s convictions. Yet, because the state presented sufficient evidence of her guilt, the double jeopardy clause does not preclude the state from retrying her in the proper county.

1. Cash contends that the evidence was insufficient to prove she committed Medicaid fraud as alleged in the indictment. Specifically, she claims there was no evidence that she received any medical assistance funds in Glynn County. Instead, she says, the evidence shows that all of the funds went either to the business’ Atlanta-area office or to the psychologists she employed. While the evidence did not establish that Cash received any medical assistance funds in Glynn County, it was sufficient to prove she committed the charged offenses.

The indictment charged Cash with committing Medicaid fraud, in violation of OCGA § 49-4-146.1, by obtaining, in Glynn County, for herself and other persons, medical assistance payments to which she was not entitled by participating in a fraudulent scheme. In describing the scheme, the state alleged in Count 1 that Cash recruited children to a business she founded, Hand-in-Hand Counseling Services, Inc., for tutoring and social-type services which were not reimbursable under Georgia’s Medicaid program. The state alleged that Cash submitted to Georgia’s Department of Medical Assistance bills for psychological therapy services provided by Dr. Sandra Sims-Patterson, a psychologist who worked as a consultant for the Atlanta-area office of Hand-in-Hand, to 90 Glynn County children, and that Cash accepted payments from the Department for these services, even though the psychological services were not actually provided to the children.

In Count 2, the state alleged that Cash hired psychologist Thomas McCloud to work in the Brunswick office of Hand-in-Hand, that Hand-in-Hand provided only nonreimbursable types of social services to the children, that Cash submitted bills to the Department under Dr. McCloud’s provider number for psychological services allegedly provided on days Dr. McCloud was not working, and that Cash accepted payments for psychological services which were not actually provided to the children.

On appeal from a criminal conviction, we view the evidence in a light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. To sustain the conviction, the evidence must be sufficient to authorize the jury’s finding of guilt beyond a reasonable doubt.

Viewing the evidence in a light most favorable to the verdict, the evidence shows that Cash founded a counseling service called Hand-in-Hand Counseling Services, Inc. One office was located in College Park (Fulton County), and another was located in Brunswick (Glynn County). Medicaid policies provide that fees for psychological services are reimbursable when the services are provided by an enrolled psychologist; fees for services provided by counselors, teachers or unlicensed personnel are not reimbursable. Hand-in-Hand’s files indicate that about 50 percent of the time, counselors rather than licensed psychologists treated the children at Hand-in-Hand. Cash, however, sought Medicaid reimbursement payments for psychological services even though the services were provided by personnel other than psychologists. In all, Hand-in-Hand received over $1 million in medical assistance funds to which it was not entitled.

Cash argues that the evidence was insufficient to prove the allegations contained in the indictment because there was no proof that she received the funds or that she received the funds in Glynn County. She says that the evidence shows that the funds were sent to Hand-in-Hand’s Fulton County office rather than its Glynn County office.

Our courts no longer employ an overly technical application of the fatal variance rule; instead we focus on materiality, and whether there has been such a variance as to affect the substantial rights of the accused. The underlying reasons for the fatal variance rule which must be served are: (1) the allegations must definitely inform the accused as to the charges against her so as to enable her to present a defense and not be taken by surprise; and (2) the allegations must be adequate to protect the accused against another prosecution for the same offense. If the allegations meet these tests, there is no fatal variance.

Here, there was evidence that the Medicaid reimbursement checks were received by Hand-in-Hand at one of its two offices, that Cash in fact received the funds that came to Hand-in-Hand as a result of the Medicaid billing, and that some of the documentation and services which provided the basis for Hand-in-Hand’s reimbursement originated in the Glynn County office. It is clear from the evidence that any variance as to which of the two offices received the funds did not affect Cash’s substantial rights, that the allegations definitely informed Cash of the charges against her, and that the allegations were adequate to protect her against another prosecution for the same offenses. There was no fatal variance between the allegations contained in the indictment and the proof introduced at trial. Moreover, the evidence presented was sufficient for a jury to find Cash guilty beyond a reasonable doubt of committing two counts of Medicaid fraud.

2. Cash correctly contends that venue was not proper in Glynn County. Venue in a criminal case properly lies in the county where the crime occurred. Venue must be proven by the state beyond a reasonable doubt, and, if it is not proven, the verdict is contrary to law, is without a sufficient evidentiary basis, and must be reversed.

This Court recently examined the exact issue raised here: Where does venue lie in a case in which a defendant is charged with fraudulently obtaining medical assistance payments in violation of OCGA § 49-4-146.1 (b) (1) (C)? As we explained in Culver v. State, the crime of obtaining or attempting to obtain medical assistance payments to which one is not entitled occurs in the county where the reports are submitted and processed in an attempt to obtain medical assistance payments, not where the scheme underlying the billings took place. Accordingly, the trial court erred in denying Cash’s motion to dismiss for improper venue since the case should not have been prosecuted in Glynn County.

Interestingly, Cash does not indicate in her appellate brief the county or counties in which venue properly lies. According to the state’s brief before the trial court and as acknowledged in the trial court’s order on Cash’s motion to dismiss, Hand-in-Hand submitted its bills to Medicaid’s fiscal agent in DeKalb County and the checks were issued from the DeKalb County location. Cash does not dispute this. Therefore, according to the record, venue was proper in DeKalb County. Nonetheless, because there was sufficient evidence of Cash’s guilt of the charged offenses, the prohibition against double jeopardy does not preclude Cash’s retrial, so long as she is retried in the proper forum.

Decided March 13, 2002

Reconsideration denied April 4, 2002

James A. Yancey, Jr., for appellant.

Stephen D. Kelley, District Attorney, Thurbert E. Baker, Attorney General, Charles M. Richards, Senior Assistant Attorney General, Nancy B. Allstrom, Michael D. Johnson, Assistant Attorneys General, for appellee.

Judgment reversed.

Ruffin and Ellington, JJ, concur.

       269 Ga. 370 (499 SE2d 56) (1998).

       254 Ga. App. 297 (562 SE2d 201) (2002).

        Woods v. State, 244 Ga. App. 359 (535 SE2d 524) (2000).

       Id.

       Id. at 359-360.

       Id. at 360.

       Id.

       Id.

       See Bullard v. State, 242 Ga. App. 843, 844 (2) (530 SE2d 265) (2000).

        Jones v. State, 272 Ga. 900, 901 (2) (537 SE2d 80) (2000).

       Id. at 901-902.

       Supra.

       Id. at 302-303 (1) (b), citing State v. Johnson, 269 Ga. 370, 372 (2) (499 SE2d 56) (1998).

       See Culver, supra.

       See Jones, supra at 900-901.


author: Barnes, Judge.

text:
    A01A2508.
    BARROW COUNTY AIRPORT AUTHORITY v. ROMANAIR, INC.
    (563 SE2d 467)
   Barnes, Judge.

The Barrow County Airport Authority appeals the trial court’s order interpreting its lease with Romanair, Inc., enjoining the Authority from collecting any more monthly rent than it collected before September 1, 2000, declaring that the Authority could not increase the rent until the next change date and requiring the Authority to act before the change date if it wanted to increase the rent. The court further declared that any increase in rent could not exceed the amount of rent charged in the month preceding the change date by more than 30 percent.

The Authority contends the trial court erred by failing to find that the lease provides for automatic rental adjustments based on increases in the Consumer Price Index (“CPI”) on the change date; erred by holding that the lease requires action by the Authority to adjust the rent on the change date; erred by granting an injunction preventing the Authority from ever collecting any greater rental than was collected in the month preceding September 1, 2000; erred by declaring that the Authority cannot adjust the rent for a five-year period beginning on a change date without taking action before the change date; and erred by declaring that any change in the amount of rent charged cannot exceed the previous amount charged by more than 30 percent. Although we affirm the trial court’s limitation on the increase in the amount of rent, for the reasons stated below, we must reverse the trial court and remand the case for further proceedings.

This appeal concerns the construction of a lease between the Authority and Romanair at the Barrow County Airport. The lease allowed Romanair to sell fuel at the airport in return for a minimum payment plus an additional rent payment based upon the amount of fuel sold in the preceding month. The lease provides that Romanair promises to pay a monthly rental of $400 per month plus an additional rental of three cents per gallon of fuel and gasoline sold by Romanair in the preceding month.

The lease also contains the following provision for adjusting the monthly rental:

The monthly rental shall be subject to adjustment at the beginning of each five year period commencing September 1, 1990 (hereinafter the change date) as follows: [Romanair] shall pay the Authority as increased rent such percentage of the basic rent as is proportionate to the change, if any, in the National Consumer Price Index as published by the United States Bureau of Labor [Statistics] from its level on the date of this agreement and its level on the change date. This rental adjustment shall be due each month during the subsequent five (5) year term until the rent is readjusted at the next change date. It is agreed by the parties that the rental adjustment shall not be changed by more than thirty percent (30%) from the rental amount for the month immediately preceding the change date. That the minimum monthly rental in any year shall be Three Hundred Dollars ($300.00) per month plus two cents per gallon of gasoline fuel sold by [Romanair].

(Emphasis supplied.)

Apparently, no adjustments to the price per gallon charge in the lease were made or attempted between 1985, when the lease was signed, and March 27, 2001, when the Authority imposed a rent adjustment, effective April 1, 2001, increasing the charge from three cents to five cents per gallon. Romanair objected to the increase and filed this action for declaratory judgment and injunctive relief. Romanair asserted that the lease did not give the Authority the authority to impose the adjustment because the lease only allowed adjustments at the beginning of each five-year period and that the sixty-six percent adjustment from three to five cents per gallon violated the provision in the lease limiting adjustments to no more than thirty percent of the previous rental amount.

The Authority contended, however, that the adjustment was authorized. The Authority relied upon paragraph 25 of the lease:

No failure of [the] Authority to exercise any power given [the] Authority hereunder, or to insist upon strict compliance by [Romanair] of any obligation hereunder, and no custom or practice of the parties, at variance with the terms hereof shall constitute a waiver of [the] Authority’s right to demand exact compliance with the terms hereof.

The parties submitted a joint stipulation of facts, and after argument, the trial court ruled that, contrary to the Authority’s position, the lease did not provide for an automatic adjustment to the rent at the beginning of each five-year period. The court found that under the lease clause providing that the rent “shall be subject to adjustment” was not mandatory and self-executing and that the lease required action by the Authority to adjust the rent. Consequently, the court ruled that Romanair was entitled to an injunction “preventing [the Authority] from collecting any more rental than that collected for the month preceding September 1, 2000.” The court further declared that “the Authority may not make changes for a five-year period beginning on a change date unless the Authority acts prior to the change date” to adjust the rent and further declared that “such changes may not exceed the amount of rent charged in the month preceding the change date by more than 30%.”

1. Even though this appeal concerns the grant of a permanent injunction, we have appellate jurisdiction because the grant of such relief in this case was merely ancillary to the underlying legal issue of interpreting the lease. Beauchamp v. Knight, 261 Ga. 608, 609 (409 SE2d 208) (1991).

2. In reviewing the trial court’s decision, we are guided by the following principles:

“An issue of contract construction is at the outset a question of law for the court.” Grier v. Brogdon, 234 Ga. App. 79, 80 (2) (505 SE2d 512) (1998). The first step is to look to the four corners of the instrument to determine the meaning of the agreement from the language employed. Terry v. State Farm &c. Ins. Co., 269 Ga. 777, 778-779 (2) (504 SE2d 194) (1998). If the contract language is ambiguous, however, then the court must apply the applicable rules of construction. Grier v. Brogdon, 234 Ga. App. at 80; OCGA § 13-2-2. “The cardinal rule of contract construction is to ascertain the intention of the parties.” (Punctuation omitted.) Amstadter v. Liberty Healthcare Corp., 233 Ga. App. 240, 242 (1) (503 SE2d 877) (1998); OCGA § 13-2-3. If, after applying the rules of construction, the language remains ambiguous, then the finder of fact must resolve the ambiguity. See id.

Time Warner Entertainment Co. v. Six Flags Over Ga., 245 Ga. App. 334, 344 (1) (c) (537 SE2d 397) (2000), vacated on other grounds, Time Warner Entertainment Co. v. Six Flags Over Ga., _ U. S. _ (122 SC 24, 151 LE2d 1) (2001).

3. Applying the foregoing standards, we find that the trial court properly construed the lease to limit any increase in the rent to no more than 30 percent of the previous payment, to find that the lease requires action by the Authority to increase the rent, and to find that the phrase “shall be subject to adjustment” is not mandatory or self-executing. The lease does not say that the rent “shall” be adjusted; instead, the lease merely provides that it “shall be subject to adjustment.” Further, we reject the Authority’s argument that its failure to adjust the rent previously allows it to increase the rent more than 30 percent. This limitation is clearly for the benefit of Romanair, and the Authority has no power to waive this clause. Kusuma v. Metametrix, Inc., 191 Ga. App. 255, 257 (3) (381 SE2d 322) (1989).

4. We also find, however, that the trial court erred by interpreting the lease to require that the Authority adjust the rent before the beginning of each five-year period commencing September 1, 1990 (“the change date”), as specified in the lease. Such an interpretation is contrary to the lease provision that the rent “shall be subject to adjustment at the beginning of each five year period. . . .” When given its plain and customary meaning (OCGA § 13-2-2 (2)), the phrase “at the beginning of each five-year period” can only mean that the rent is subject to adjustment after the change date during the start of the new five-year period, and not before. In this sense, “beginning” means: “The act or process of bringing or being brought into being; start. The time when something begins or is begun. . . . The first part,” and “begin” is defined as “[t]o start to do something; commence.” See American Heritage Dictionary (Houghton Mifflin Co. 2nd college ed. 1985). When interpreting contracts, dictionaries may supply the plain and ordinary sense of words. Southern Guaranty Ins. Co. v. Duncan, 131 Ga. App. 761, 764 (2) (206 SE2d 672) (1974).

Moreover, if the trial court’s interpretation of the lease is followed, the rent could never be adjusted. The lease requires that a comparison of the CPI on the prior change date be made with the CPI on the current change date. The CPI for a particular date, however, is calculated after that date. Under the trial court’s interpretation demanding that the Authority make the adjustment before the current change date, the adjustment could never be timely imposed.

Such an interpretation cannot stand as it is clearly contrary to the intent of the parties as expressed in the contract clause permitting an adjustment to the rent. When construing a contract, we must look to the whole contract to determine the construction of any particular part. OCGA § 13-2-2 (4); Western Contracting Corp. v. State Hwy. Dept., 125 Ga. App. 376, 381 (1) (187 SE2d 690) (1972). Accordingly, we must apply the well-established rule that “a court should avoid an interpretation of a contract which renders portions of the language of the contract meaningless. [Cits.]” Bd. of Regents &c. of Ga. v. A.B. & E., Inc., 182 Ga. App. 671, 675 (357 SE2d 100) (1987). Therefore, we find that the rent may be adjusted by the Authority after a change date at the beginning of a new rent period. Accordingly, the trial court’s grant of a permanent injunction preventing the Authority from collecting any more rent than that collected before September 1, 2000, must be reversed.

Decided March 20, 2002

Reconsideration denied April 4, 2002.

James E. Palmour III, for appellant.

Morton M. Wiggins III, for appellee.

5. We reject the Authority’s argument that the anti-waiver savings clause in paragraph 25 of the lease, quoted above, allows the Authority to adjust the rent at any time. Paragraph 3 of the lease allowing an adjustment to the rent certainly grants a right to the Authority, but at the same time the paragraph limits the period in which such adjustments can be made to “the beginning of each five-year period.” This second clause is a right vested in both parties, and paragraph 25 does not grant to the Authority the power to waive a right vested in Romanair. A party to a contract cannot waive provisions in favor of the other party or waive rights to which the other party is entitled. Kusuma, supra, 191 Ga. App. at 257.

6. In this instance, however, we cannot determine as a matter of law whether the adjustment by the Authority was made “at the beginning” of the five-year period within the terms of the lease. In contracts, time is generally not of the essence, and we do not find that the parties made it so in this instance. See OCGA § 13-2-2 (9). Further, the lease does not provide a specific or definite period in which the rent must be adjusted. Under these circumstances, we presume that the parties intended the rent to be adjusted within a reasonable time of the beginning of the five-year period. Parker v. Futures Unlimited, 157 Ga. App. 520, 521 (278 SE2d 99) (1981).

Therefore, we must remand the case to the trial court to resolve this issue because we cannot determine from the record before us, as a matter of law, whether the Authority adjusted the rent within a reasonable time of the beginning of the five-year period.

Judgment affirmed in part, reversed in part and remanded.

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


author: Andrews, Presiding Judge.

text:
    A02A0445.
    DUTY v. THE STATE.
    (563 SE2d 558)
   Andrews, Presiding Judge.

In defense of possession of cocaine charges, Christopher Derrick Duty moved to suppress evidence of cocaine found by police during a search of a motel room pursuant to a search warrant. In his pre-trial appeal, Duty claims the trial court erroneously denied the motion because the affidavit presented to the magistrate to obtain the search warrant was insufficient to support a determination that there was probable cause to believe contraband would be found in the room. We agree and reverse the trial court’s denial of the motion.

The police officer’s affidavit was the only information presented to the magistrate in support of the search warrant. It stated that within the past 24 hours an informant who had previously provided reliable information told the officer that Duty was selling cocaine from room 115 of the Dublin Motel and that within the past week a second reliable informant told the officer that Duty was selling cocaine from room 22 of the Irish Inn and that he was driving “a red newer model Chevrolet Cavalier.” The affidavit further stated that an investigation conducted by police showed that Duty was staying in room 24 at the Irish Inn, was driving a red 2000 model Chevrolet Cavalier, and had previously been arrested on unrelated drug charges.

Based on this information, the magistrate issued a search warrant for room 115 at the Dublin Motel to search for cocaine and related evidence. A search of the room pursuant to the warrant produced a plastic bag with traces of suspected cocaine.

Where issuance of a search warrant is based primarily on an informant’s tip, the issuing magistrate must apply the “totality of the circumstances” test under Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983), to determine whether there is probable cause for the search warrant.

The task of the issuing magistrate [under Gates] is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.

(Citations and punctuation omitted.) State v. Stephens, 252 Ga. 181, 182 (311 SE2d 823) (1984) (quoting from Gates).

Decided April 5, 2002.

Tapley & Warnock, George C. Tapley, for appellant.

Ralph M. Walke, District Attorney, James C. Garner, Assistant District Attorney, for appellee.

The officer’s affidavit in this case states that the two informants who gave the hearsay information had given reliable information in the past, but it says nothing about the basis of knowledge of the informants. With nothing showing how the informants obtained the information, it might well have been based on casual rumor which cannot establish probable cause. State v. Wesson, 237 Ga. App. 789, 792 (516 SE2d 826) (1999). Moreover, nothing in the affidavit compensates for this deficiency by sufficiently corroborating the information. Id. at 791. The tips were given by two informants about separate incidents at different locations, and neither tip contains information corroborating portions of the other. Compare Stephens, 252 Ga. at 183. The police investigation showing Duty drove a car like the one described by one of the informants did not meaningfully corroborate the tip because it merely confirmed information easily obtained by anyone who saw Duty driving. Finally, the fact that Duty had previously been arrested on drug charges did not corroborate the tips.

In the absence of anything showing the basis for the information provided by the informants, and nothing else sufficiently corroborating the information, there was no substantial basis for concluding that probable cause existed for issuance of the search warrant.

Judgment reversed.

Phipps and Mikell, JJ, concur.


author: Eldridge, Judge.

text:
    A02A1115.
    SCOTT v. THE STATE.
    (563 SE2d 554)
   Eldridge, Judge.

A Cobb County jury found Raymond Nathaniel Scott guilty of trafficking in cocaine, disregarding a stop sign, driving without a license, and driving with no proof of insurance, which charges arose when Scott was stopped for running a four-way stop sign at the intersection of Maxwell Avenue and Wright Street in Marietta; pursuant to an impound search of the vehicle Scott was driving, 33.3 grams of cocaine with a purity level of 74 percent were found in the center console of the car. He appeals, and we affirm.

1. Citing our decision in Barnett v. State, Scott contends the trial court erred in denying his motion for directed verdict because a fatal variance existed between the allegations of the indictment and the proof at trial in that the State failed to prove that the cocaine at issue was 28 grams of pure cocaine, as alleged in the indictment.

(a) Scott did not raise this issue at the time he made his motion for directed verdict.

Because the record fails to demonstrate that [Scott] raised the fatal variance issue on his [trafficking] conviction [ ] in the trial court, we may not address it here. Issues presented for the first time on appeal furnish nothing for us to review, for this is a court for correction of errors of law committed by the trial court where proper exception is taken, because one may not abandon an issue in the trial court and on appeal raise questions or issues neither raised nor ruled on by the trial court.

(b) Further, this contention is substantively meritless. Unlike the cases cited by Scott, the indictment in this case did not charge that Scott was in possession of at least “28 grams of cocaine” so as to require the State to prove possession of a like amount of pure cocaine. Instead, the indictment charged Scott with possession of at least “28 grams of cocaine, a mixture with a purity of at least 10 percent of cocaine as described in Schedule II.” The State proved Scott’s possession of 33.3 grams of cocaine with a purity of 74 percent. There was no fatal variance between the allegata and probata.

2. Next, Scott contends that the trial court permitted the jury to convict him in a manner not set forth in the indictment when the court charged the jury, “any person who is knowingly in possession of 28 grams or more of cocaine or any mixture with a purity of 10 percent or more of cocaine, as described in schedule two, commits the felony offense of trafficking in cocaine.” Scott claims that such charge permitted the jury to find him guilty under the mixture language when the indictment alleged possession of 28 grams of pure cocaine.

(a) When asked, Scott failed to reserve exception to the trial court’s charge, opting instead to go “[o]nly with the objection that arose earlier,” which was not the claim of error alleged above. Thus, this claim is waived.

(b) This contention is substantively meritless for the reasons discussed in Division 1, supra.

3. In two separate enumerations of error, Scott challenges the sufficiency of the evidence supporting his convictions for (a) disregarding a stop sign, and (b) driving without a license.

A jury’s verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, and the testimony of a single witness is generally sufficient to establish a fact. Whether to believe a witness and the facts to which he testifies is solely within the province of the jury as finder of fact, since an appellate court determines evidence sufficiency and does not determine witness credibility.

(a) Officer N. Drosakis testified that he executed a traffic stop of the vehicle Scott was driving because he observed the car “go through the intersection without stopping at the stop sign.” In addition, the prosecutor used a diagram of the intersection and had the officer demonstrate to the jury when he first observed Scott’s vehicle; how it “had run the stop sign at the intersection”; and how Scott’s vehicle never “came to a complete stop.”

OCGA § 40-6-72 (b) states in pertinent part that every driver of a vehicle approaching a stop sign “shall stop at a clearly marked stop line or, if there is no stop line, before entering the crosswalk on the near side of the intersection or, if there is no crosswalk, at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway before entering it.” Contrary to Scott’s contention, it matters not that the State did not prove that the intersection in question had a “marked stop line,” had a “crosswalk,” or had a “point nearest the intersecting roadway,” as described in the statute. These descriptions are of marks at which a driver is supposed to stop. Here, the State’s evidence showed that Scott never stopped at all. The jury was authorized to believe the officer’s testimony in that regard. Accordingly, a rational trier of fact could have found Scott guilty beyond a reasonable doubt of disregarding a stop sign.

(b) We find totally without merit Scott’s contention that proof that he was driving on the city streets of Marietta is not proof that he was driving on a “highway” so as to sustain a conviction for driving without a license under OCGA § 40-5-20 (a). “Highway” means “the entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel.” Accordingly, evidence that Scott was driving on the streets of Marietta, was unable to produce a driver’s license when asked, and, in fact, “didn’t have one [a license] at all” was sufficient for a rational trier of fact to find Scott guilty beyond a reasonable doubt of driving without a license.

4. Finally, Scott contends he received ineffective assistance of counsel at trial. We have reviewed the errors alleging ineffective assistance and find them each meritless.

(a) Any claims with regard to trial counsel’s failure to complain about a fatal variance or a jury charge that “expanded” the indictment are decided adversely to Scott in Divisions 1 (b) and 2 (b), supra. It is well settled that the failure to make a meritless objection cannot be evidence of ineffective assistance.

(b) Substantively without merit is Scott’s claim that trial counsel failed to secure a ruling on the admissibility of evidence that another person, “Barney Gunn,” rented the vehicle Scott was driving and was arrested subsequently for trafficking. Trial counsel desired to introduce such evidence, calling it “completely germane to the defense and . . . completely against the principles of justice not to let that matter come to light.” However, on the State’s pretrial motion, the trial court ruled out such evidence, which ruling is not challenged herein.

(c) We find no basis for objection to the State’s evidence that the traffic stop occurred in a high drug sale/crime area. Such evidence went to prove the trafficking offense.

(d) Likewise, we find no basis for an objection by trial counsel to the State’s closing argument decrying the destruction that crack cocaine has created in communities and in families. Notably, Scott’s current appellate counsel provides no legal basis for such objection, and trial counsel testified at the hearing on the motion for new trial that “it was a fair argument for the State to make.”

(e) The record shows that trial counsel adequately advised Scott with regard to his right to testify or remain silent, as did the trial court. Since the only rebuttal to the strength of the State’s case and the only method to put forward the “someone-else-did-it” defense was for Scott to testify, we cannot find error in trial counsel so advising Scott. The fact that Scott gratuitously testified during cross-examination that he never “did no crimes,” thereby permitting his criminal record to come into evidence in impeachment, does not reflect on the correctness of trial counsel’s initial advice. We do not judge ineffective assistance of counsel claims in hindsight.

Decided April 5, 2002.

Ruth P. Marks, for appellant.

Patrick H. Head, District Attorney, H. Maddox Kilgore, Amelia G. Pray, Assistant District Attorneys, for appellee.

Judgment affirmed.

Smith, P. J., and Ellington, J., concur.

       204 Ga. App. 491 (420 SE2d 43) (1992).

        Jackson v. State, 252 Ga. App. 16-17 (2) (555 SE2d 240) (2001).

        Tolver v. State, 269 Ga. 530, 533 (5) (500 SE2d 563) (1998); Leggon v. State, 249 Ga. App. 467, 468 (2) (549 SE2d 137) (2001).

         OCGA § 24-4-8; Barber v. State, 235 Ga. App. 170 (509 SE2d 93) (1998).

        Kovacs v. State, 227 Ga. App. 870 (1) (490 SE2d 539) (1997).

       OCGA § 40-6-72 (b).

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

       No person “shall drive any motor vehicle upon a highway in this state unless such person has a valid driver’s license.” OCGA § 40-5-20 (a).

       OCGA § 40-1-1 (19).

        Jackson v. Virginia, supra.

        Hayes v. State, 262 Ga. 881, 884-885 (3) (c) (426 SE2d 886) (1993).

       The trial court’s ruling with regard to the admissibility of Scott’s criminal record for impeachment purposes is not challenged herein.

        Castleberry v. State, 274 Ga. 290, 294 (4) (553 SE2d 606) (2001).


text:
    A02A1152.
    WELLS v. THE STATE.
    (563 SE2d 560)
   Eldridge, Judge.

A Laurens County jury convicted defendant Coprintha Michelle Wells of voluntary manslaughter as a lesser included offense of murder. The superior court sentenced her to 20 years to serve. The defendant appeals from the denial of her motion for new trial, contending, as she did below, that she was denied effective assistance of counsel for counsel’s failure to object to the introduction of photographs of the victim, a baby boy five weeks old, as inflammatory. As defendant’s claim of error is without merit, we affirm. Held:

To prove ineffective assistance of counsel, the defendant must show that trial counsel’s performance fell below a reasonable standard of conduct and that there was a reasonable probability that the outcome of the case would have been different but for the deficient performance of counsel. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

Milner v. State, 271 Ga. 578, 579 (2) (522 SE2d 654) (1999).

Murder, as alleged in the indictment, required proof that the victim died as a result of intentionally inflicted injury to the abdominal area. The photographs in issue, one a post-autopsy photograph and the other of the baby while in the hospital before his death assisted by a catheter inserted in his leg and a tube inserted in his nose, were relevant on this issue. Even if characterized as gruesome (and we do not do so), such photographs were markedly less gruesome than other autopsy photographs of record, admitted over the objection of trial defense counsel, showing bleeding consistent with blunt force trauma in the area of the baby’s intestines and opened back. Nonetheless, when relevant, as here, photographs showing a severely injured victim, however gruesome, are admissible. Autry v. State, 230 Ga. App. 773, 774-775 (2) (498 SE2d 304) (1998); Lewis v. State, 180 Ga. App. 369, 370 (2) (349 SE2d 257) (1986). “ ‘Failure to make a meritless objection cannot be evidence of ineffective assistance.’ [Cit.]” Fults v. State, 274 Ga. 82, 87 (7) (548 SE2d 315) (2001); see also Strickland v. Washington, supra at 687 (III) (defendant required to make out prima facie case of substantial deficiency); Smith v. Francis, 253 Ga. 782, 783 (1) (325 SE2d 362) (1985) (trial “counsel is entitled to a ‘strong presumption’ (which the defendant must overcome) that counsel’s conduct falls within the wide range of reasonable professional conduct and that all significant decisions were made in the exercise of reasonable professional judgment”). Accordingly, we conclude that trial defense counsel did not render ineffective assistance by failing to object to the photographic evidence complained of.

Decided April 5, 2002.

Tapley & Warnock, George C. Tapley, Charles M. Warnock, Jr., for appellant.

Ralph M. Walke, District Attorney, Louie C. Fraser, Assistant District Attorney, for appellee.

Judgment affirmed.

Smith, P. J, and Ellington, J., concur.