text:
    A99A1449.
    RATTANSAY v. THE STATE.
    (523 SE2d 36)
   Johnson, Chief Judge.

Liao Rattansay appeals from his rape conviction and the denial of his motion for new trial. He argues that the evidence was insufficient to support his conviction, the court should have ordered a second psychiatric evaluation, and the court erred in its charge to the jury. Because each of these assertions is without merit, we affirm.

1. Rattansay challenges the sufficiency of the evidence to support the conviction. On appeal, we view the evidence in a light most favorable to the verdict; we do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Jackson v. State, 236 Ga. App. 260-261 (511 SE2d 615) (1999).

So viewed, the evidence shows that the elderly victim and Liao Rattansay lived next door to each other. Rattansay had visited the victim’s house on several occasions to socialize and to do household chores for her. On the morning in question, Rattansay came to her house and rang the doorbell. When the victim opened the door, Rattansay asked if he could come in. She allowed him to come in and sit for a few minutes, then asked him to leave. He refused to leave and instead grabbed her by the neck and dragged her to the bedroom. The victim fought and screamed, but Rattansay beat her and forced her to have sexual intercourse. The victim called police, who arrived while the victim was still on the phone. The victim’s face and arms were swollen and bruised, and her lip was bleeding. She told the officers that Rattansay beat her and forced her to have sexual intercourse with him.

A neighbor who lived across the street testified that she saw a man running from the victim’s yard into Rattansay’s yard at about 8:00 a.m., just after the attack occurred. The neighbor was positive that the man officers brought out of the Rattansay house about 15 minutes later, Liao Rattansay, was the man she saw running from the victim’s yard.

(a) Rattansay’s complaint that the state failed to prove penetration is without merit. The victim testified at trial and was subject to cross-examination. Although at trial the victim was not asked and did not say whether penetration occurred, she testified that she told police exactly what happened. Officers testified that the victim told them that there was penetration.

Where the veracity of a witness is at issue, and that witness is present at trial, under oath, and subject to cross-examination, that witness’ prior consistent out-of-court statement is admissible as substantive evidence of the matter asserted. Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985); Foster v. State, 216 Ga. App. 26, 28 (2) (453 SE2d 482) (1995). Similarly, a prior inconsistent statement of a witness who takes the stand and is subject to cross-examination is admissible as substantive evidence. Gibbons v. State, 248 Ga. 858, 862 (286 SE2d 717) (1982); Foster, supra. The victim’s prior statement to police supporting the penetration element of the rape charge, whether we construe it as consistent or inconsistent with her testimony, was admissible as substantive evidence. See Foster, supra; Cuzzort, supra.

And, contrary to Rattansay’s argument, the state was not required to present physical or medical evidence to prove penetration. See Jackson v. State, 190 Ga. App. 316, 317 (2) (379 SE2d 4) (1989); Searcy v. State, 158 Ga. App. 328, 329 (2) (280 SE2d 161) (1981). A rational trier of fact could find from the evidence presented that penetration occurred.

(b) Rattansay complains that the neighbor’s testimony that she saw Rattansay running from the victim’s house was unreliable. He says the witness was too far away to see the person clearly and may have mistaken him for one of his brothers. Any question regarding the witness’ ability to see the assailant goes to the credibility of the witness’ testimony. The jury decides issues of credibility. Taylor v. State, 232 Ga. App. 383, 384-385 (501 SE2d 875) (1998).

(c) Rattansay asserts that the state failed to prove intent, arguing that his voluntary intoxication precluded him from forming the requisite intent. For voluntary intoxication to negate intent, a defendant must show that the intoxication altered his brain functioning so as to negate intent and that the alteration was more than temporary. Peters v. State, 224 Ga. App. 837, 838 (1) (481 SE2d 898) (1997). Although Rattansay testified that he consumed large amounts of alcohol and drugs the night before the incident, he failed to show that the consumption affected his ability to distinguish right from wrong and that his brain function was more than temporarily altered. See Couch v. State, 229 Ga. App. 151 (1) (493 SE2d 577) (1997).

The evidence was sufficient to persuade a rational trier of fact of Rattansay’s guilt beyond a reasonable doubt. See generally Dean v. State, 215 Ga. App. 23, 24 (4) (449 SE2d 622) (1994).

2. Rattansay contends the trial court erred in denying his motion for further psychiatric evaluation because the first court-ordered evaluation was inadequate. The trial court did not abuse its discretion in denying his request.

Before trial, defense counsel filed a notice of intent to raise the issue of insanity. In response, the trial court ordered the Georgia Department of Human Resources to evaluate Rattansay’s mental health and to provide the court with a report of its findings regarding Rattansay’s competence to stand trial, his degree of criminal responsibility, and his mental competence at the time of the act.

A psychologist examined Rattansay and issued a report finding that Rattansay manifested no signs of mental illness, gave no indication that his ability to distinguish right from wrong was impaired by thought or mood disorders, and was competent to stand trial and to participate in his own defense.

Rattansay claimed the psychologist was biased in favor of the prosecution and that his examination was inadequate. He moved the trial court to issue an order granting him funds to retain the services of an independent psychologist to aid him in the presentation of an insanity defense. The trial court denied the request, finding no evidence indicating that Rattansay’s sanity would be a significant factor at trial.

A defendant must be given access to a psychiatrist for an examination and assistance in his defense when the defendant demonstrates to the trial court that his sanity at the time of the offense is to be a significant factor at trial. Perkins v. State, 215 Ga. App. 296 (450 SE2d 324) (1994). Although the trial court is authorized to order a mental health expert to examine the defendant in order to determine whether his sanity is likely to be a significant factor at trial, it is the defendant who bears the burden of making that preliminary showing. See Bright v. State, 265 Ga. 265, 271 (2) (d) (455 SE2d 37) (1995); Perkins, supra. The mere filing of a motion does not constitute a preliminary showing that sanity at the time of the offense is likely to be a significant factor at trial. Id.

Decided September 28, 1999.

Richard W. Marks, for appellant.

Rattansay did not present any evidence which called into question his mental condition and, therefore, has failed to make the preliminary showing that his sanity would be a significant factor at trial. The trial court was not required to provide psychiatric assistance. See Brown v. State, 260 Ga. 153, 158 (7) (391 SE2d 108) (1990); Callaway v. State, 208 Ga. App. 508, 510 (1) (431 SE2d 143) (1993). There was no abuse of discretion. See Jackson v. State, 180 Ga. App. 774, 776 (1) (350 SE2d 484) (1986); Perkins, supra.

3. Rattansay complains that the trial court should have charged the jury on the lesser-included offense of assault with attempt to rape because there was no evidence of penetration. As discussed in Division 1, there was evidence of penetration. In any event, Rattan-say waived his right to appellate review of this issue by not submitting a written request for the charge. See Gamble v. State, 235 Ga. App. 777, 783 (7) (510 SE2d 69) (1998).

4. Rattansay complains that the trial court’s charge was not clear on the issue of whether voluntary intoxication can be considered a defense to a crime. Rattansay contends the trial court’s instruction that voluntary intoxication is not an excuse for any criminal act conflicted with its instruction that voluntary intoxication can be a defense if it negates intent. This enumeration presents no grounds for reversal.

The trial court’s instruction that voluntary intoxication is not an excuse for any criminal act is a correct statement of the law. OCGA § 16-3-4 (c); Sydenstricker v. State, 209 Ga. App. 418, 420 (2) (433 SE2d 644) (1993).

The second part of the instruction, that voluntary intoxication can be a defense, is also correct although, as discussed in Division 1 (c), voluntary intoxication is a defense only when such intoxication has caused an alteration of brain function so as to negate intent and that alteration is more than temporary. Jones v. State, 234 Ga. App. 571, 572 (2) (507 SE2d 804) (1998). The trial court’s instruction would have been more clear had it included this limitation in its charge. But because there was no evidence of brain alteration in this case, the language which would have clarified the rule would not have been favorable to Rattansay. Indeed, the court’s failure to include the limitation in its charge was favorable to Rattansay. Because Rattansay has failed to show how he was harmed by the charge, reversal is not required. Sheriff v. State, 197 Ga. App. 143, 145 (5) (b) (397 SE2d 732) (1990).

Judgment affirmed.

Smith and Eldridge, JJ, concur.

Michael H. Crawford, District Attorney, Earnest J. McCollum, Assistant District Attorney, for appellee.


source: Caselaw Access Project

author: Blackburn, Presiding Judge.

license: Public Domain

text:
    A99A1619.
    HOLLAND v. THE STATE.
    (523 SE2d 33)
   Blackburn, Presiding Judge.

Paul M. Holland appeals his convictions, following a jury trial, for homicide by vehicle in the second degree (OCGA § 40-6-393 (b)) and improper backing (OCGA § 40-6-240), contending that the trial court erred by: (1) denying his motion for a directed verdict of acquittal; (2) allowing a videotape of the accident scene into evidence without a proper foundation; and (3) failing to appropriately charge the jury with regard to the proximate cause of the collision. Holland also contends, for the first time on appeal, that he received ineffective assistance of counsel. For the reasons set forth below, we find no merit in Holland’s first three enumerations. We remand the case to the trial court on the ineffective assistance of counsel claim only.

1. Holland contends that the trial court should have granted his motion for a directed verdict.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Holland] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The standard for reviewing a denial of a motion for a directed verdict of acquittal is whether under the rule of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense. Moreover, the test established in Jackson is the proper test for us to use when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new trial based upon alleged insufficiency of the evidence.

(Citations and punctuation omitted.) Lester v. State, 226 Ga. App. 373, 376 (2) (487 SE2d 25) (1997).

On the evening of November 26, 1997, Holland began backing his wrecker from a parking lot onto Ridge Road in Gainesville. Holland had stopped the wrecker, and its back end was sticking out into the heavily traveled roadway when Grace Pierce approached in her car. Pierce collided with the wrecker, the boom of which shattered her windshield. Pierce died as a result of the collision.

OCGA § 40-6-240 (a) provides: “A driver shall not back a vehicle unless such movement can be made with safety and without interfering with other traffic.” OCGA § 40-6-393 (b), in turn, provides that a person who unintentionally causes the death of another by violating OCGA § 40-6-240, among other Code violations, is guilty of homicide by vehicle in the second degree.

Trooper Mark Perry, who investigated the scene, determined that the accident was caused by Holland illegally backing into Ridge Road. Trooper Mike Fortson testified that Holland should have circled around in the parking lot he was in so that he could safely enter traffic, rather than backing in an unsafe manner. Fortson also stated that nothing on Holland’s truck would have alerted Pierce to its presence in the road. Officer Wes Anderson testified that Holland’s wrecker did not have side lights or reflective markers, which could have prevented the accident. This evidence was sufficient to support the jury’s verdict that Holland illegally backed into Ridge Road, ultimately causing Pierce’s death. See Jackson, supra.

The testimony of Frank Brock, an eyewitness, does not alter this result, as Holland contends. Holland argues that Brock’s testimony proves that the accident was caused by Pierce’s negligent driving, not Holland’s. Although Brock did testify that he observed Pierce prior to the crash and noticed that she was looking down into her lap rather than at the road in front of her, Trooper Fortson testified that, based on his investigation, Brock could not have seen into Pierce’s car from his vantage point. The jury, as the arbiter of credibility, was empowered to reject Brock’s testimony in light of that given by Trooper Fort-son, and this Court is not authorized to disturb the jury’s credibility determination on appeal. Lester, supra.

2. Holland contends that the trial court erred by allowing into evidence a video taken by Trooper Perry during his investigation of the accident. He contends that no foundation had been laid for the introduction of this evidence. Holland, however, failed to raise a foundational objection to such evidence and affirmatively stated that he had no objection to the jury’s viewing of the video. By his conduct, Holland waived any right to argue on appeal that the videotape was inadmissible. Michael v. State, 235 Ga. App. 16, 18 (6) (508 SE2d 426) (1998).

3. Holland also contends that the trial court erred by refusing to give three instructions requested by him in writing on the issue of proximate causation and the duty of ordinary care owed by the driver of a vehicle. Specifically, Holland contends that the trial court failed to instruct the jury that it could not find him guilty of vehicular homicide if the proximate cause of the collision was Pierce’s failure to exercise ordinary care while driving.

Decided September 28, 1999.

H. Bradford Morris, Jr., for appellant.

Jerry Rylee, Solicitor, Michael K. Biglow, Assistant Solicitor, for appellee.

To determine whether the charge of a court was erroneous, jury instructions must be considered as a whole. Hambrick v. State, 256 Ga. 688, 690 (3) (353 SE2d 177) (1987). In this case, the trial court, while rejecting Holland’s requested instructions, thoroughly and appropriately charged the jury that Holland’s illegal backing had to be the proximate cause of Pierce’s injuries to constitute homicide by vehicle in the second degree. The trial court also instructed the jury that a driver of a vehicle must exercise due care in operating a motor vehicle. Considering the charge as a whole, the trial court properly charged the jury as to the issue of proximate causation in this case.

4. On appeal, Holland, for the first time, contends that his trial counsel rendered ineffective assistance of counsel. “[T]he rule that an ineffectiveness claim must be raised ‘at the earliest practicable moment’ requires that that claim be raised before appeal if the opportunity to do so is available.” (Emphasis in original.) Glover v. State, 266 Ga. 183, 184 (2) (465 SE2d 659) (1996). If the claim is not raised at the earliest practicable time, it is waived. Dawson v. State, 258 Ga. 380 (369 SE2d 897) (1988).

If an appellant raises on appeal the issue of ineffectiveness of his original trial counsel, and appellant did not have the opportunity to raise such issue in the trial court, we will ordinarily remand the case to the lower court for resolution of such issue, with the right in the appellant to appeal the ruling.

Howard v. State, 233 Ga. App. 724, 729 (7) (505 SE2d 768) (1998).

Here, appellate counsel did not participate in the motion for new trial and could not have raised the ineffectiveness claim at that time. Therefore, this claim has been properly raised for the first time on appeal. We remand this case to the trial court for a hearing on this issue alone.

Judgment affirmed in part and case remanded.

Eldridge and Barnes, JJ., concur.


text:
    A99A1643.
    INGRAM v. THE STATE.
    (523 SE2d 31)
   Blackburn, Presiding Judge.

Following a jury trial, Steven Bernard Ingram appeals his conviction of possession of a firearm by a convicted felon, contending that the trial court erred by failing to dismiss the indictment for felony murder and that the evidence was insufficient to support his conviction. For the reasons set forth below, we affirm.

1. After the jury was sworn in, but prior to hearing evidence, Ingram moved to dismiss the indictment for felony murder on the grounds that the underlying felony, possession of a firearm by a convicted felon, will not support a conviction for felony murder. A motion to dismiss is essentially a general demurrer challenging the validity of the indictment. See State v. Eubanks, 239 Ga. 483, 485 (238 SE2d 38) (1977). Such a general demurrer is valid only if “ ‘the defendant can admit all that is charged and still be innocent [; if he can,] the indictment is fatally defective.’ ” Marshall v. State, 229 Ga. 841, 842 (195 SE2d 12) (1972). Since the offense of possession of a firearm by a convicted felon can support a conviction for felony murder, the indictment was not defective. See Metts v. State, 270 Ga. 481 (511 SE2d 508) (1999); Roller v. State, 265 Ga. 213 (453 SE2d 740) (1995).

Ford v. State, 262 Ga. 602 (423 SE2d 255) (1992), cited by Ingram, does not require a different result. In Ford, the Supreme Court held that, under the facts of that case, a conviction for felony murder was not supported by the status offense of possession of a firearm by a convicted felon because the evidence at trial did not show that the possession of the firearm created a foreseeable risk of death. In the present case, Ingram challenged the validity of the indictment, not the conviction. Thus, it is the legal sufficiency of the indictment, not the evidence, which is at issue. The trial court properly denied the motion.

2. Ingram next argues that there was insufficient evidence to support his conviction of possession of a firearm by a convicted felon, contending the State failed to prove his status as a convicted felon.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Ingram] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Punctuation omitted.) Barber v. State, 235 Ga. App. 170 (509 SE2d 93) (1998). See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided September 28, 1999.

Lee Sexton, for appellant.

Robert E. Keller, District Attorney, Todd E. Naugle, Assistant District Attorney, for appellee.

A prior felony conviction is an essential element of OCGA § 16-11-131. Holcomb v. State, 213 Ga. App. 15 (443 SE2d 662) (1994). At trial Ingram objected to the admission into evidence of a prior indictment for armed robbery on the grounds that it did not show that he had pled guilty or whether he was represented by counsel. To resolve the objection, the trial court inquired whether admitting the sentence but not the indictment would satisfy Ingram’s objection. Counsel stated it would, whereupon a certified copy of the five-year sentence was admitted, without objection, as evidence of the prior conviction of armed robbery. The sentence showed both that Ingram had pled guilty to armed robbery and that he had been represented by counsel. Additional evidence showed that Ingram, using a gun in his possession, shot the victim. This evidence is sufficient to authorize his conviction for possession of a firearm by a convicted felon. See Jackson, supra.

On appeal, Ingram argues that the previous indictment for armed robbery failed to show that he had entered the guilty plea voluntarily. Since the indictment was not admitted at trial, we have nothing to consider on appeal.

We note that Ingram raised no other objections with regard to the voluntariness of the guilty plea. The burden is on Ingram, rather than the State, to prove by a preponderance of evidence that his previous guilty plea was not knowingly and voluntarily entered. See Nash v. State, 271 Ga. 281, 284 (519 SE2d 893) (1999) (“recidivism defendant carries the burden of production in a collateral attack on a final judgment”).

Judgment affirmed.

Eldridge and Barnes, JJ, concur.


text:
    A99A1666.
    PARROTT v. THE STATE.
    (523 SE2d 29)
   Blackburn, Presiding Judge.

Carey Parrott appeals his jury conviction of financial transaction card theft and giving a false name to a police officer. Parrott contends that: (1) the trial court erred by admitting a bench warrant into evidence for the prosecution after the State had not satisfied its discovery obligations under OCGA § 17-16-4 (a) (3); and (2) the evidence was insufficient to support the verdict. For the reasons set forth below, we affirm.

Viewing the evidence in the light most favorable to the verdict, Kim Ingel reported her Visa credit card stolen in late September 1997. On September 26, 1997, an Athens police officer made a routine traffic stop on a car in which Parrott was a passenger. When the officer asked Parrott for his name, he responded “Brandon Parrott,” which the officer knew to be false. Parrott was then arrested for giving a false name to a police officer, at which point the officer found Kim Ingel’s Visa in Parrott’s possession.

When Parrott did not appear for calendar call on October 16, 1998, a bench warrant was issued for his arrest. Although Parrott was aware of the bench warrant, the first time the State notified him of its intention to use the bench warrant at trial was when it was introduced as evidence. The trial court ruled that the State had failed to meet the prosecution’s discovery obligations under OCGA § 17-16-4 (a) (3), thus giving rise to the remedies provided in OCGA § 17-16-6. Under the latter, the Court may “order the state to permit the discovery or inspection, interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the state from introducing the evidence not disclosed or presenting the witness not disclosed.” OCGA § 17-16-6. In accordance with those statutes, the trial court offered Parrott a continuance, which was refused by defense counsel on the basis that the evidence should be excluded altogether.

1. When reviewing a trial court’s decision on corrective'actions to remedy “the State’s failure to comply with its discovery obligations, the appropriate standard of review is whether the trial court abused its discretion.” Williams v. State, 226 Ga. App. 313, 314 (1) (485 SE2d 837) (1997). Since the trial court in this case offered a continuance, the only possible way it abused its discretion is by failing to exclude the evidence.

Generally, “in order to trigger the harsh sanction under OCGA § 17-16-6, of excluding evidence improperly withheld from the defense, there must be a showing of prejudice to the defense and bad faith by the State.” Blankenship v. State, 229 Ga. App. 793, 794 (494 SE2d 758) (1997).

Parrott contends that admission of the bench warrant was prejudicial because the prosecution used it to show intent, a necessary element of financial transaction card theft, and that notice to the defense counsel would have allowed a better rebuttal of that point. The trial court, however, offered a continuance to cure any prejudice caused by lack of notice. Defense counsel made no showing of prejudice beyond that which could be cured by a continuance, and for that reason, the trial court was without authority to exclude the evidence. Tucker v. State, 222 Ga. App. 517, 518-519 (3) (474 SE2d 696) (1996).

Decided September 28, 1999.

Joel N. Shiver, for appellant.

Harry N. Gordon, District Attorney, Henry R. Thompson, Assistant District Attorney, for appellee.

Parrott also contends that the State demonstrated bad faith when it introduced the bench warrant at trial. Parrott asserts that the prosecutor may have been attempting to draw attention away from the bench warrant by not including it on the list of discovery items. No evidence, however, is offered to support that theory. Parrott further asserts that the manner in which the State introduced the evidence at trial constitutes bad faith. The prosecutor simply showed it to defense counsel and then stated that he wanted it admitted into evidence. That conduct is not sufficient to constitute bad faith. As the trial court did not abuse its discretion when it ruled the evidence was not sufficiently prejudicial to Parrott, nor was there bad faith on the part of the State, we find no error.

2. Parrott further contends that the State’s evidence was insufficient. The defendant’s theory is premised on exclusion of the bench warrant and, for that reason, lacks merit.

On appeal the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility.

Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990). Review of the record reveals that there is sufficient evidence to support the jury’s verdict.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.


text:
    A99A1764.
    BLANKS v. STATE OF GEORGIA.
    (522 SE2d 770)
   Blackburn, Presiding Judge.

In this civil forfeiture action, Caritha Blanks appeals the trial court’s order which forfeited her interest in her vehicle to the State pursuant to OCGA § 16-13-49. Blanks contends that the trial court erred (1) by denying her motion to dismiss the forfeiture action because the hearing was untimely and (2) by granting the forfeiture because the search of the vehicle violated her Fourth Amendment rights. As we find that the hearing on the forfeiture action was untimely, we reverse.

On May 31,1998, Trooper B. L. Mims of the Georgia State Patrol stopped Blanks’ 1994 Acura because the car had an invalid tag. Blanks was a passenger in the car. The driver, Carlos Richardson, did not have a valid driver’s license. Shortly after Trooper Jim Brown arrived as backup to Mims, both men observed marijuana and marijuana seeds in the car. Then, Trooper Daniel Fagan arrived and also noticed marijuana and marijuana seeds in the car. Blanks gave consent for Fagan to search the car, but revoked that consent at the direction of Richardson when Fagan began to search the trunk of the car. Richardson was charged with DUI, giving a false name, and driving without a license. Blanks was charged with permitting an unlicensed person to drive her vehicle, and her car was impounded.

At the impoundment lot, a dog trained to detect narcotics indicated the presence of controlled substances at different places in the car. A search of the car found 68 baggies behind the headlight containing a total of 16.1 grams of cocaine, another 26.9 grams of cocaine (74 percent purity) and 32.4 grams of cocaine (85 percent purity) elsewhere in the car.

On June 28, 1998, the State brought an in rem forfeiture action seeking to condemn the car pursuant to OCGA § 16-13-49. Blanks answered the complaint on July 29, 1998. A hearing on the forfeiture action was scheduled for August 8, 1998; however, the State received a continuance on August 6 because the crime lab had not finished testing the drugs. The hearing was re-scheduled for September 11, 1998, but was continued on September 10 due to the unavailability of a State witness. The hearing was not re-scheduled.

On October 19, 1998, Blanks filed a motion to dismiss the forfeiture action citing the State’s failure to hold a hearing within 60 days as required by OCGA § 16-13-49 (o) (5). On December 18, 1998, the trial court ordered the State to hold the hearing before January 29, 1999, or the motion to dismiss the action would be granted. The forfeiture action was heard on January 27, 1999, and the trial court granted forfeiture of the car.

1. Blanks contends the trial court erred by failing to dismiss the forfeiture action, arguing that the hearing was not timely. We agree. Pursuant to OCGA § 16-13-49 (o) (5), a hearing is mandatory within the 60-day period after service of the complaint, unless “continued for good cause.” See State v. Henderson, 263 Ga. 508 (436 SE2d 209) (1993). A hearing on the forfeiture action originally was timely scheduled. The hearing was continued at the request of the State because the crime lab reports were not finished. Finding good cause, the trial court granted the continuance. The hearing was re-set to a date after the 60-day period, but the State received a second continuance for good cause, the unavailability of a witness.

“A motion for a continuance of the [forfeiture] hearing is addressed to the sound discretion of the trial judge, and in the absence of a clear showing to the contrary, it will be presumed that such discretion was not abused.” (Punctuation omitted.) State of Ga. v. Gonzales, 213 Ga. App. 661, 662 (445 SE2d 808) (1994). Both times, the State showed good cause as to why the hearing should be continued, and the trial court did not abuse its discretion by continuing the hearing twice.

Nonetheless, the trial court erred by failing to dismiss the forfeiture action since the State failed either to ensure that the hearing was re-scheduled timely or to seek another continuance after the second continuance. In interpreting the statute, we look to the intent of the legislature and give effect to that intent. The legislature intended OCGA § 16-13-49 to ensure the prompt disposition of property subject to forfeiture under the statute. State of Ga. v. Jackson, 197 Ga. App. 619, 621 (1) (399 SE2d 88) (1990). Our Supreme Court has held that

the plain meaning of “must” is a command, synonymous with “shall.” A mandatory construction of “must” as used in OCGA § 16-13-49 (o) (5) is consistent in context with the remainder of this paragraph which provides that the 60-day requirement may be “continued for good cause.” If the 60-day requirement were directory, rather than mandatory, there would be no need for a “good cause” continuance. Moreover, our construction of OCGA § 16-13-49 (o) (5) as mandatory, rather than directory, is consistent with the apparent purpose of that paragraph, which is to ensure a speedy resolution of contested forfeiture cases in the courts, as well as a speedy resolution of property rights.

(Citations and footnote omitted.) State v. Henderson, supra at 510-511.

In the present case, the forfeiture hearing was not timely rescheduled after the second continuance. The motion to dismiss was filed nearly six weeks after the second continuance at which time a hearing still had not been scheduled. Furthermore, the hearing on the forfeiture action was not conducted until six months after the sixty-day period had expired and over four months after the second continuance.

Decided September 28, 1999

DeNorris A. Heard, for appellant.

William T. McBroom III, District Attorney, Andrew T. Jones, Victoria S. Aronow, Assistant District Attorneys, for appellee.

The 60-day period is a statutorily prescribed time limit within which the State must either conduct a hearing or seek a continuance. After the second continuance, the State did neither for four months, an unreasonably long time given these clear time constraints. Today we need not decide what period of time constitutes a reasonable delay after a continuance because, unquestionably, the outermost limits of a continuance would be another 60-day period before either the matter is heard or another continuance is granted.

Here the delay after the second continuance well exceeded 60 days. The State’s explanation that the lengthy delay was due to negotiations between the parties is to no avail. A continuance for good cause extends the time period, but negotiations do not. Such a lengthy delay in conducting the hearing renders meaningless the very purpose of the statute — the speedy resolution of contested forfeiture actions.

2. Our holding in Division 1 renders the remaining enumeration of error moot.

Judgment reversed.

Eldridge and Barnes, JJ, concur.


text:
    A99A1992.
    PATEL v. THE STATE.
    (522 SE2d 760)
   Blackburn, Presiding Judge.

Ramanbhal Patel appeals, following a jury trial, his conviction of driving under the influence to the extent of being a less.' safe driver. Patel contends the trial court erred in denying his motion for directed verdict, asserting that the only evidence to support the verdict was the product of an illegal use of radar equipment. For the reasons set forth below, we affirm.

The standard of review for the denial of a motion for directed verdict is that provided in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Holman v. State, 236 Ga. App. 111 (511 SE2d 240) (1999). On appeal the defendant no longer has a presumption of innocence. The evidence is viewed in the light most favorable to the verdict. The standard is met if a rational trier of fact could have found the defendant guilty beyond a reasonable doubt under the evidence presented. Id.

So viewed, the evidence reveals that Officer Eddie Green of the Garden City Police Department stopped Patel for speeding during the early morning hours of June 16, 1996. After observing Patel’s car and determining his speed by the use of radar equipment, Officer Green began the pursuit of Patel on 1-516 in Chatham County. Patel did not immediately pull over and was weaving in and out of traffic. During the pursuit in this 45-mph speed zone, Officer Green accelerated to 65-70 mph to keep pace with Patel. After pulling Patel over, Officer Green and other officers called to the scene observed that Patel had red, glassy eyes and detected the odor of an alcoholic beverage on his breath. Sergeant Gregory Gilder conducted field sobriety tests on Patel, all of which supported the conclusion that Patel was a less safe driver.

At a pre-trial hearing, the readings from the radar unit were suppressed because the police car was not visible to Patel for the 500 feet required by Georgia law. See OCGA § 40-14-7; Wiggins v. State, 249 Ga. 302, 304-305 (2) (a) (290 SE2d 427) (1982). Patel contends the trial court erred by denying his motion for directed verdict, alleging that, absent the radar reading, Officer Green did not have probable cause to stop him. Consequently, he argues, all evidence resulting from the stop should have been suppressed.

We disagree. Officer Green had observed the speeding car and had “paced” Patel’s car, i.e., compared his own speed to Patel’s. Pacing is an established method of determining vehicle speed. Staley v. State, 224 Ga. App. 806 (482 SE2d 459) (1997). Additionally, apart from the speeding, Officer Green reported that Patel’s car was weaving in traffic and that Patel did not immediately pull over. “ As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.’ ” Tukes v. State, 236 Ga. App. 77 (1) (511 SE2d 534) (1999). Officer Green had probable cause to stop Patel based upon his observations.

Patel’s argument that Officer Green would not have obtained the DUI evidence but for the illegal use of the radar equipment is misplaced.

“[Ejvidence is (not) ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ ”

Ruffin v. State, 201 Ga. App. 792, 793 (412 SE2d 850) (1991), quoting Wong Sun v. United States, 371 U. S. 471 (83 SC 407, 9 LE2d 441) (1963).

Decided September 28, 1999.

Harold J. Cronk, for appellant.

Spencer Lawton, Jr., District Attorney, Jerome M. Rothschild, Jr., Assistant District Attorney, for appellee.

Here, Officer Green’s visual observations of Patel’s car speeding and weaving, his pacing of Patel’s car, and Patel’s failure to pull over are “sufficiently distinguishable” from the use of the radar such that Officer Green had probable cause to stop Patel. It follows that the evidence of DUI discovered in the lawful stop was admissible. The evidence was sufficient to authorize the conviction, and the trial court properly denied Patel’s motion. See Jackson, supra.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.


author: Ellington, Judge.

text:
    A99A1010.
    CITY OF GRIFFIN v. McKEMIE et al.
    (522 SE2d 288)
   Ellington, Judge.

In 1994, the City of Griffin filed condemnation petitions against property owned by Dorothy, James, and Warren McKemie to acquire sewer easements to serve Nacom, Inc., the Griffin-Spalding County Airport, and other potential users with access to the sewer line. Following a hearing, the court granted the City’s petitions and awarded the McKemies a total of $44,900. The McKemies appealed. However, because the award was more than twice the City’s appraised value of the property, the City chose not to defend against the appeal, to abandon the condemnation proceedings, and to redesign the sewer line. Following the dismissal of the condemnation action, the McKemies filed a motion for attorney fees pursuant to OCGA §§ 22-4-7 and 9-15-14. The trial court awarded the McKemies $5,281.36 in attorney fees. We granted the City’s application for discretionary appeal and, for the reasons discussed below, reverse the trial court’s award.

“It is a general rule that an award of attorney fees and expenses of litigation is proper only where provided for by statute or contract.” Walker v. Walker, 266 Ga. 414 (1) (467 SE2d 583) (1996). In this case, the trial court did not specify the statutory basis for awarding the McKemies attorney fees. The court explained that the award was made simply because the McKemies incurred legal expenses “because of this lawsuit.” The trial court’s findings are insufficient to support an award of attorney fees under either OCGA § 9-15-14 or § 22-4-7.

1. The award of attorney fees is not authorized under OCGA § 22-4-7 because that statute would apply only if the City had formally abandoned the condemnation proceeding and had been seeking “to acquire real property for a federal-aid [public works] project, the cost of which is now or hereafter financed in whole or in part from federal funds allocated to an acquiring public entity.” OCGA § 22-4-7. This provision is part of the Georgia Relocation Assistance & Land Acquisition Policy Act of 1973, OCGA § 22-4-1 et seq., and was “enacted to bring the state into compliance with federal law to enable the agencies of this state to continue to receive federal financial assistance for public works projects.” West v. Mayor &c. of Atlanta, 248 Ga. 844, 845-846 (286 SE2d 299) (1982). In fact, the Act contains legislative findings declaring its applicability when a public entity “acquires land, with federal financial assistance, for a public use.” OCGA § 22-4-2.

Although the City did abandon the condemnation proceedings, it is undisputed that the City’s sewer project was financed entirely from the proceeds of revenue bonds and that no federal or state assistance was provided to pay for or will be provided to reimburse the cost of any part of the project. Given the plain language of OCGA § 22-4-7, the McKemies are not entitled to attorney fees. See also West v. Mayor &c. of Atlanta, 248 Ga. at 846 (“MARTA is the state agency to which federal funds are allocated and which has the responsibility of carrying out the Federal-aid public works project.”); Jackson v. Alford, 244 Ga. 125, 126 (259 SE2d 68) (1979) (The sewer line “is funded in part by money from the United States Treasury.”).

The McKemies argue, however, that because the City receives federal funds for other projects and because one of the end-users of the sewer line receives federal funding, the statute should apply. We do not agree. In interpreting the Federal Uniform Relocation Assistance & Real Property Acquisition Policies Act of 1970, the United States Court of Appeals explained that the district court lacked jurisdiction to award attorney fee's and costs of litigation incurred by the condemnees for alleged violations of the Act because the Act “is applicable only when Federal financial assistance is used in or directly supports the property acquisition” (Emphasis supplied.) Rhodes v. City of Chicago in Trust &c., 516 F2d 1373, 1377 (7th Cir. 1975). Similarly, in this case, because federal financial assistance was neither used in nor directly supports the City’s land acquisition, the statute does not apply. Moreover, although the Griffin-Spalding Airport does receive federal funds and will benefit from the project, it is only a user of the sewer system and not the public entity acquiring the interest in land. By its plain language, OCGA § 22-4-7 applies only to an “acquiring public entity.” See West v. Mayor &c. of Atlanta, 248 Ga. at 846. Under these circumstances, no basis for an award of attorney fees under OCGA § 22-4-7 exists.

2. In deciding if the trial court’s award of fees was proper and may be sustained under OCGA § 9-15-14, we must determine whether, to the extent the trial court’s award was based on OCGA § 9-15-14 (a), there is any evidence to support it and whether, to the extent the award was based on OCGA § 9-15-14 (b), the trial court abused its discretion. Mitcham v. Blalock, 268 Ga. 644, 648 (491 SE2d 782) (1997). The McKemies did not argue, nor did the trial court find, that the City asserted a claim “to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim.” OCGA § 9-15-14 (a). In fact, the court granted the City’s petition, implicitly acknowledging the existence of a justiciable claim. Therefore, the only relevant inquiry in this case is whether the award can be sustained under OCGA § 9-15-14 (b).

To sustain an award of fees under OCGA § 9-15-14 (b) in a condemnation case, the Supreme Court has held that “there must be some evidence of improper conduct, a lack of substantial justification, or an intent to delay or harass.” Dept. of Transp. v. Woods, 269 Ga. 53, 56 (494 SE2d 507) (1998). Also, when ruling on a motion for attorney fees, the trial court’s order must include factual findings and specify the improper conduct upon which the award is based or the order must be vacated. Porter v. Felker, 261 Ga. 421, 422 (405 SE2d 31) (1991); Shimshi v. A. G. Spanos Dev., 228 Ga. App. 669 (492 SE2d 531) (1997); Aycock v. RE/MAX of Ga., 221 Ga. App. 587, 589-590 (472 SE2d 137) (1996).

The trial court found that the City chose to dismiss its petition and “to redesign the sewer line rather than pay the award and further litigate the condemnations.” The order reveals only that the City made an economic decision to abandon the proceedings, a decision which is not the equivalent of improper conduct. See Dept. of Transp. v. Woods, 269 Ga. at 56. Moreover, the trial court did not find that the McKemies incurred legal fees as a result of that decision, but, rather, “because of this lawsuit.” The order, therefore, does not contain a specific finding of improper conduct sufficient to support the award of attorney fees under OCGA § 9-15-14 (b). Id. Further, we find no evidence in the record that shows the City’s petitions were legally unfounded, that the City acted in a harassing or dilatory manner, or that it unnecessarily expanded the litigation. The award of fees, therefore, must be vacated. Id.

Judgment reversed.

Blackburn, P. J., and Barnes, J., concur.

Decided September 9, 1999

Reconsideration denied September 29, 1999

Mullins & Whalen, Andrew J. Whalen III, Jacob A. Maurer, for appellant.

Chamberlain, Hrdlicka, White, Williams & Martin, Richard N. Hubert, for appellees.


author: Eldridge, Judge.

text:
    A99A1197, A99A1328, A99A1329.
    STROZZO v. SEA ISLAND BANK et al. (three cases).
    (521 SE2d 392)
   Eldridge, Judge.

The Supreme Court ordered this case transferred to this Court for determination.

On September 23, 1997, Hampton County Warehouse, Inc. (“Hampton”), which operated a licensed bonded warehouse in Estill, South Carolina, had Sea Island Bank issue an irrevocable letter of credit, no. 339, in the amount of $262,500 to the South Carolina Department of Agriculture, Warehouse Division, to satisfy the statutory requirement under South Carolina law for obtaining a South Carolina warehouseman’s license to handle agricultural products.

At the same time, Statesboro Warehouse, Inc. (“Statesboro”) had Sea Island Bank issue a similar letter of credit for $150,000 to Thomas T. Irvin, Commissioner, Georgia Department of Agriculture, to obtain a warehouseman’s license for handling agricultural commodities in Georgia.

The South Carolina letter of credit read in part:

The funds under this Letter of Credit [were] available against sight draft(s) by the beneficiary. Each such draft, except as provided below, shall be accompanied by an affidavit from the Director of the Warehouse Division of the beneficiary stating that the customer, [Hampton], has failed to perform the duties and obligations of a licensed state warehouseman in conformity with the provisions of the South Carolina State System Law Section 39-22-10, et seq. [and the rules and regulations prescribed thereunder]. The affidavit shall state the amounts payable by the principal to the beneficiary due to the licensed warehouseman’s failure to carry out his obligations under the law and regulations.

Statesboro’s trust agreement stated:

The principal shall well and truly perform and fulfill all the duties as a public warehouseman, qualified under the Georgia State Warehouse Act, codified at OCGA § 10-4-2, et seq., and as a grain dealer, where applicable, under the Grain Dealers’ Act, codified at OCGA § 2-9-30, et seq., and the rules and regulations promulgated thereunder, and all of its obligations under any warehouse agreement or any modifications thereof that may hereafter be made, notification of which modifications being hereby waived, with respect to commodities stored for any person, firm, association, or corporation, or stored or handled by grain dealers, or held by Commodity Credit Corporation or others, the aforesaid commodity owned by Commodity Credit Corporation or other persons who have purchased such aforesaid named commodities from Commodity Credit Corporation or others and producers who have redeemed such commodities from Commodity Credit Corporation or others, then the obligations of the Principal shall become null and void; otherwise said obligation shall remain in full force and effect. The terms were: (a) Any person damaged by failure of the principal to comply with any condition of this agreement, in a transaction occurring on or after the effective date of this agreement and before the termination date of this agreement in accord with its provisions, may recover under this agreement in accord with and subject to its provisions. Acts, omissions, or failures of authorized agents or representatives of the principal or persons whom the principal shall knowingly permit to represent themselves as acting for the principal shall be taken and construed to be acts, omissions, or failures of the principal and to be within the protection of this agreement to the same extent and in the same manner as if they were the personal acts of the principal, (b) The trustee shall not be liable to pay any claim for recovery under this agreement if[:] it does not meet applicable statutory requirements or absent any statutory requirements; it is not in writing and received by the trustee within 120 days from the date of the transaction on which the claim is based. The trustee shall after receiving such a claim notify the principal at the earliest practicable date, (c) The trustee, upon determination that funds are due to a claimant, shall draw funds pursuant to a letter of credit obtained under this agreement, as necessary to pay what is due to the claimant, up to the amount of such letter, and pay such funds to the claimant, except as otherwise provided hereinafter.

Hampton’s and Statesboro’s sole stockholder, officer, and manager, David Prosser, executed notes to Sea Island Bank in the amounts of $262,500 and $150,000 as security for the letters of credit. Dominic Strozzo, plaintiff-appellant, executed a guaranty of each note.

On July 17, 1998, the South Carolina Department of Agriculture forwarded a sight draft to Sea Island Bank demanding payment of $262,500. The accompanying affidavit and supporting documents set forth the factual basis, which Strozzo contends is inadequate to call the letter of credit. The facts show that Hampton and Statesboro, through Prosser, received cotton from over 50 farmers for storage in Georgia and South Carolina, but issued them no warehouse receipts. Prosser electronically transferred the electronic warehouse receipts (“EWR”) to his trading company, Sea Island Cotton Trading Company; through it, sold the EWRs to mills and transferred EWRs to them; never obtained permission from the owners to transfer the EWRs or to sell the cotton; and never paid the farmers. Now Hampton, Sea Island Cotton Trading Company, Statesboro, and Prosser are in bankruptcy.

The South Carolina affidavit stated that three farmers’ losses had been verified, but their claims affidavits were not attached to the demand.

On July 31, 1998, after the South Carolina sight draft was presented to Sea Island Bank, Strozzo filed action 1B98CV245 in the Superior Court of Bulloch County to block the payment by injunction. Strozzo contended that it was not Hampton who sold the cotton without permission, but Prosser, and that the farmers’ affidavits had not been filed. The South Carolina Department of Agriculture petitioned to intervene, which petition was granted. The intervener moved to dismiss the equity action for injunction. After a hearing on August 28, 1998, the trial court dismissed the action. Strozzo filed his notice of appeal.

On October 28, 1998, Strozzo filed action 1B98CV336T in Bulloch Superior Court, which was identical to the above action. On December 3, 1998, the trial court dismissed this action as well. Strozzo appealed.

On November 5, 1998, Strozzo brought action 1B98CV342M to enjoin Sea Island Bank from paying the letter of credit to the Georgia Commissioner of Agriculture on the grounds that Prosser’s acts were not the acts of Statesboro. On December 11, 1998, the trial court dismissed the action and ordered that $150,000 be paid to the State of Georgia, Department of Agriculture. Strozzo appealed.

Case No. A99A1197

1. Strozzo contends that the trial court erred in dismissing his complaint for injunction. We do not agree.

An injunction is distinctly an equitable remedy. Howard v. Warren, 206 Ga. 838, 839 (2) (59 SE2d 503) (1950). There is no equity jurisdiction where there exists an adequate remedy at law. See Cantrell v. Henry County, 250 Ga. 822, 824-825 (1) (301 SE2d 870) (1983); Sherrer v. Hale, 248 Ga. 793, 797-798 (2) (285 SE2d 714) (1982); Morton v. Gardner, 242 Ga. 852, 856-857 (252 SE2d 413) (1979); Chadwick v. Dolinoff, 207 Ga. 702, 703 (2) (64 SE2d 76) (1951).

The universal test of the jurisdiction of a court of equity to issue injunctions is the absence of a legal remedy by which the complainant might obtain the full relief to which the facts and circumstances entitle him, and this is likewise the test of its power to restrain breaches of a contract.

(Citations omitted.) Id. Thus, where the relief sought can be obtained in a manner provided by law, a suit in equity will not lie. See OCGA §§ 23-1-3; 23-1-4; Housing Auth. v. MMT Enterprises, 267 Ga. 129 (1) (475 SE2d 642) (1996); Cantrell v. Henry County, supra at 826 (1); Blackmon v. Scoven, 231 Ga. 307, 310-311 (4) (201 SE2d 474) (1973); Allen v. Hub Cap Heaven, 225 Ga. App. 533, 540-541 (8) (484 SE2d 259) (1997).

Strozzo has a defense to any action on the guaranty. However, he seeks to assert it as a grounds for injunction and seeks to prevent both the transfer of the letter of credit and a subsequent suit against him on the guaranty. Thus, he seeks to use his legal defense in equity to avoid a suit in law. This he cannot do. There is no equity jurisdiction where there is an adequate legal remedy, i.e., a legal defense to a suit in law. See generally OCGA § 9-5-1; Morton v. Gardner, supra; Provident Life &c. Ins. Co. v. United Family Life Ins. Co., 233 Ga. 540, 541 (2) (212 SE2d 326) (1975); Stein Steel &c. Co. v. Briggs Mfg. Co., 219 Ga. 779 (135 SE2d 862) (1964); Peavy v. Gen. Securities Corp., 208 Ga. 82 (65 SE2d 149) (1951). Thus, Strozzo cannot enjoin the bank from committing what he contends is an anticipatory breach of contract, i.e., paying the sight draft in violation of the terms of the letter of credit because, he contends, the failure to file the three affidavit claims of the certified farmers with the sight draft did not satisfy the terms of the letter of credit, and also because the actions of Prosser in selling the cotton were not a violation by Hampton within the terms of the letter of credit. See Allsouth Sprinkler Co. v. Network Bldg. Systems, 238 Ga. 372 (233 SE2d 174) (1977).

In regard to compliance with the terms of the letter of credit, Georgia does not adhere to the standard of “strict compliance,” but adheres to the standard of “substantial compliance,” in keeping with its standards of statutory construction. OCGA § 1-3-1 (c); Jurisco, Inc. v. Bank South, N.A., 228 Ga. App. 799, 802 (1) (492 SE2d 765) (1997); First Nat. Bank &c. v. Wynne, 149 Ga. App. 811, 817 (1) (256 SE2d 383) (1979); cf. Vass v. Gainesville Bank &c., 224 Ga. App. 259, 261 (480 SE2d 294) (1997). However, in this case, the South Carolina Department of Agriculture fully complied with the terms and conditions of the letter of credit with its demands. Therefore, the trial court did not err in dismissing the complaint.

Further, even if the hearing was treated as a final adjudication on the merits, as a matter of law — not equity — the letter of credit clearly and plainly required only the affidavit of the Director of the Warehouse Division of the South Carolina Department of Agriculture, which requirement was fully satisfied. Therefore, the three farmers’ affidavits were not required under the letter of credit. Where the language of the contract is plain, unambiguous, and capable of only one reasonable interpretation, construction of the contract is not permitted, and the language of the contract is given effect. R. S. Helms, Inc. v. GST Dev. Co., 135 Ga. App. 845, 848 (219 SE2d 458) (1975).

Further, Hampton received the cotton in trust as bailee from the farmer-consignees, failed to issue warehouse receipts to them, and wrongfully issued the EWRs to Sea Island Cotton as a negotiable instrument without the consignees’ consent. OCGA §§ 11-7-102 (1) (a) and (b); 11-7-104 (1); 11-7-201; 11-7-202 (2); 11-7-402; 44-12-40; 44-12-43; 44-12-44. As a government-bonded warehouseman of agricultural commodities, Hampton was under statutory trust duties and violated that trust by failing to give the farmers their EWRs; failing to keep the cotton secure; and transferring the farmers’ EWRs to Sea Island Cotton without authority, knowing that the EWRs would be converted by sale.

Passage of the Uniform Commercial Code did not repeal or affect Georgia bailment law, and Hampton was liable in damages for failure to exercise ordinary diligence to protect the consigned cotton for the farmer-consignees. OCGA §§ 11-7-204; 44-12-43; 44-12-44; Ga. Ports Auth. v. Servac Intl., 202 Ga. App. 777, 778-779 (2) (415 SE2d 516) (1992); Gooden v. Day’s Inn, 196 Ga. App. 324, 326 (2) (395 SE2d 876) (1990); Sun Valley v. Southland Bonded Warehouse, 171 Ga. App. 233, 234-235 (319 SE2d 91) (1984); see also Harper Warehouse v. Henry Chanin Corp., 102 Ga. App. 489, 497 (14) (116 SE2d 641) (1960); Washburn Storage Co. v. Mobley, 94 Ga. App. 113, 114 (94 SE2d 37) (1956).

While it is undisputed that Prosser and Sea Island Cotton converted the cotton, ultimately sold the cotton, and failed to pay the farmers for it, Hampton violated its bailment under bond by failing to deliver the negotiable EWRs to the rightful owners and transferring the EWRs to Sea Island Cotton, which violated the terms and conditions of the letter of credit through its acts and omissions, which were also the acts of its agent, Prosser. See Citizens Bank &c. Co. v. SLT Warehouse Co., 368 FSupp. 1042 (M.D. Ga. 1974), aff’d, 515 F2d 1382 (5th Cir. 1975). Under Georgia bailment law, while the acts of Prosser in converting the EWRs and cotton were his own and not imputable to Hampton as the acts of the employer, Hampton would not be liable for his imputed acts as respondeat superior under bailment law. See Gooden v. Day’s Inn, supra at 327 (3); see also Merchants Nat. Bank &c. v. Guilmartin, 88 Ga. 797, 800-802 (15 SE 831) (1892). However, there was no way that Hampton could negate the presumption and all inference of negligence that it failed to exercise ordinary care to protect its consignees from the conversion by its principal officer, operator, and sole owner, since all its acts and omissions were through Prosser. See Scott v. Purser Truck Sales, 198 Ga. App. 611, 612-613 (402 SE2d 354) (1991); Frontier Contracting Co. v. L.S.R., Inc., 174 Ga. App. 478, 480 (3) (330 SE2d 414) (1985). Further, legal defenses under bailment law or the UCC are not defenses to the terms of the letter of credit. The UCC and bailment law are relevant only in determining what additional duties Hampton had other than under South Carolina Systems Law § 39-22-10 et seq. under the letter of credit. But all of these issues were Strozzo’s legal defenses to any future suit on the guaranty. The reason that a letter of credit with its terms was required was to avoid such defenses in the first place. Thus, the conditions precedent for payment of the letter of credit under its terms were fully satisfied.

Therefore, OCGA § 11-5-114 required that Sea Island Bank honor the terms of the letter of credit and satisfy the sight draft payable to the South Carolina Department of Agriculture. Under the “independence principle,” the South Carolina Department of Agriculture had complied with the requirements for payment of the letter of credit in its demand upon Sea Island Bank.

[T]he independence principle “states that the bank’s obligation to the beneficiary is independent of the beneficiary’s performance on the underlying contract. Put another way, the issuer must pay on a proper demand from the beneficiary even though the beneficiary may have breached the underlying contract with [Hampton].”

(Citations omitted; emphasis in original.) Jurisco, Inc. v. Bank South, N.A., supra at 803 (2). In this case, the South Carolina Department of Agriculture fully performed in determining that Hampton had breached the duties of a warehouseman and in filing a properly documented demand on the letter of credit, the only duties that it had under the contract for the letter of credit.

Decided July 29, 1999

Reconsideration denied September 29, 1999.

Robert S. Reeves, for appellant.

Brown & Livingston, Charles H. Brown, for appellees.

The sole issue before the trial court [,] and thus the sole issue on appeal, is whether the documents presented by [the South Carolina Department of Agriculture] to [Sea Island Bank] satisfied the prerequisites for payment on the letter of credit. We hold that they did and, therefore, the trial court did not err in ordering the money paid to [the South Carolina Department of Agriculture].

Id. at 804 (2).

Case No. A99A1328

2. This is an appeal from the dismissal of Strozzo’s petition for injunction in action 1B98CV336T; such case was a refiling of the petition in action 1B98CV245 and is controlled by our decision in Division 1 as to Case No. A99A1197, which was the originally filed case.

Case No. A99A1329

3. This is an appeal in the separate case 1B98CV342M between Strozzo and Sea Island Bank, involving the Georgia Commissioner as intervener and the same legal issues. Therefore, Division 1 controls.

Judgment affirmed.

Pope, P. J., concurs. Smith, J, concurs in judgment only.


text:
    A99A1671.
    SHORES v. THE STATE.
    (522 SE2d 515)
   Eldridge, Judge.

A Hall County jury convicted appellant, Patrick Shores, of seven counts of theft of services (felony), three counts of theft of services (misdemeanor), and one count of theft by taking (felony). Appellant appeals from the trial court’s denial of his motion for new trial.

In the light most favorable to the verdict, the evidence shows the following: In September 1994, appellant, together with two partners operating as SMC Motorsports, L.P. (“SMC”), purchased Lanier Raceway in Hall County. Appellant was primarily responsible for promotion and race operations. In June 1995, SMC filed a petition for bankruptcy. At the time bankruptcy was filed, SMC had a monumental amount of debt. Some operating expenses had been paid that would allow SMC to keep the doors open and the drivers and spectators coming in, but SMC had not paid any of the mortgage payments and very little on payroll and other taxes. After filing bankruptcy, the debt structure of SMC did not improve. SMC paid no mortgage payments, made only part of their tax payments, and owed thousands of dollars to various vendors.

Even though the race track was operating without any capital and had massive pre-bankruptcy and post-bankruptcy debts, a decision was made to proceed with the final race of the 1995 season. This final race, which occurred over a four-day period from October 26 through 29, 1995, was unsuccessful. Only a few race cars and drivers participated in each event, and there were not many spectators in the stands. On Saturday there were only about 200 spectators. On Sunday, the day of the large races, only between 150 and 200 people were in the stands.

Jeffery Sliz, an attorney and operator of a competing track, testified that an owner of a race track can tell if a race is going to be profitable prior to the beginning of the race. Sliz further testified that it was apparent early in the weekend that, based on the number of spectators and the low turnout of race cars, there would not be enough money from the weekend to meet race expenses. Some of the drivers testified to the same effect. Fred Query, Jr., a race car driver, testified that he wrecked his car the first night of practice and had to return home to North Carolina to bring back his other car; that he was concerned, due to the low number of cars at the track, the race would not go forward; and that appellant assured him on two separate occasions that the race would go forward and that he would be paid if he won. Wayne Willard, another race car driver, testified that, due to the low number of race cars and spectators, he felt that the race would not be profitable and urged appellant either to call off the race or to scale back the race. Willard testified that appellant refused and stated that everything was fine.

Further, appellant testified that during the last race of the weekend, he and his partners knew that they would be unable to cover the purses owed to the winning racers. However, knowing that there were insufficient funds in SMC’s checking account and that they did not have funds available to deposit into the account to cover the amount of the checks, they issued checks to various winners of the races on Sunday night. Early the next morning, appellant and his partners instructed their bank to “stop payment” on the checks they had written.

Wayne Willard, Fred Query, Jr., Allen Craig Willard, Jimmy Garmon, Larry James Killingsworth, Jr., Greg Garrison, Jeff Bradford, and Christopher Wingo testified that they received checks for the amount of the winning purses they were entitled to and that, when they presented their checks to the bank, they were denied payment because a stop payment had been entered on each of the checks. All these victims further testified that, at the time of trial, they had not received payment for the amount they were owed. Based on this testimony, the jury found appellant guilty of six counts of theft of services (felony) and two counts of theft of services (misdemeanor).

Partially unpaid was George Echols, President of American Winged Outlaws Sprint Car Association. Pursuant to a written contract with appellant and his partners, the Winged Outlaws raced on Friday and Saturday nights. The contract provided for an advance cash payment each night. Appellant and his partners made Friday’s payment timely, in cash. On Saturday, appellant and his partners did not have sufficient cash to pay Echols. In order to induce Echols to go forward with the show, appellant and his partners convinced Echols to accept the remaining portion of his payment by check, knowing there were insufficient funds in their checking account. Appellant and his partners specifically promised Echols that there were sufficient funds in their checking account to cover the check. Echols accepted a check in the amount of $6,500. When Echols presented the check to the bank where SMC maintained its account, there were insufficient funds in SMC’s checking account to cover the amount of the check. When Echols re-presented the check for payment, appellant and his partners had placed a stop payment on the check. Echols testified that he had not received payment for the amount of the check at the time of trial. The check given to Echols was the basis for a conviction of an additional count of felony theft of services.

The State also put up evidence that several law enforcement officers who worked security were not paid by appellant and his partners. These individuals were normally paid a week after they worked and testified that they never received checks for the last race. The failure to pay John Marshall, a Hall County deputy sheriff, was the basis for a conviction of misdemeanor theft of services.

Also unpaid was Bearden Oil Company, which delivered, for cash on delivery, 1,200 gallons of race fuel to Lanier Raceway prior to this race event. Appellant was found guilty of theft by taking for his unlawful appropriation of this fuel without payment. Held:

1. Appellant asserts that the trial court erred in entering a judgment of conviction.

(a) OCGA § 16-8-5 provides that: “[a] person commits the offense of theft of services when by deception and with the intent to avoid payment he knowingly obtains services, accommodations, entertainment, or the use of personal property which is available only for compensation.” Appellant argues that the State failed to show the required element of criminal intent to avoid payment on the part of the appellant and that the evidence could support only a finding that appellant made a bad business decision, resulting in appellant’s convictions for theft of services representing an unconstitutional imprisonment for debt. We disagree.

[I]ntent is a question of fact for jury resolution. Farlow v. State, 59 Ga. App. 881, 883 (1) (2 SE2d 500) (1939). Intent may be proven by circumstantial evidence, by conduct, demeanor, motive, and all other circumstances. Harp v. State, 136 Ga. App. 897, 900 (3) (a) (222 SE2d 623) (1975).

Kennon v. State, 232 Ga. App. 494, 496 (3) (502 SE2d 330) (1998). In this case, appellant testified that, when the winners’ checks were written on Sunday night, he knew that there were insufficient funds in SMC’s checking account to cover the amount of the checks. Appellant and his partners placed “stop payment” orders on the winners’ checks when the bank opened the next day. Testimony was offered by victims, business associates, and the bankruptcy trustee from which the jury could infer that the appellant had the requisite criminal intent to commit theft of services as proscribed by the statute.

The evidence showed that, at the time of this race, SMC was in bankruptcy; had no cash reserves; had monumental pre-bankruptcy and post-bankruptcy debts; and could pay the winners’ purses and other debts of the race only from the cash flow, including profits that the event generated, if there was sufficient attendance. The evidence further showed that it should have been evident to appellant and his partners from the inception of the racing event that, because of the low turnout of both drivers and spectators, the event would not be profitable. Further, during the course of the event, several drivers voiced their concerns to appellant that there would not be sufficient funds to pay the winners’ purses, and they were assured by appellant that the race track was solvent and they would be paid. When appellant was urged either to call off the race or to scale back the race, appellant refused. The evidence further showed that there was not sufficient cash to pay George Echols on Saturday night and that, in order to keep Echols from canceling the performance of the Winged Outlaws, appellant and his partners issued Echols a check for the balance he was due and assured him the check was “good,” knowing at such time that there were insufficient funds in their business account to cover the amount due on the check. Thus, appellant knew, prior to the Sunday races, that there were insufficient funds to pay the purses.

Further, the State put up evidence that the cash received that weekend was handled differently than in previous races. Clint Sloan testified that he and another law enforcement officer normally would stay each night after a race while the appellant and his partners counted the cash; Sloan then would take the cash and deposit it in the bank. After this particular race, Sloan was not requested to stay and did not make any deposits for appellant and his partners.

The bankruptcy trustee’s testimony showed that, up until the time SMC filed bankruptcy, appellant received a net salary of over $2,500 per week; that, even though appellant’s salary was in excess of $100,000 per year, the business mortgage and taxes were not paid; and that, post-bankruptcy, the business mortgage and taxes still were not paid, and thousands of dollars were owed to vendors. Further, the bankruptcy trustee testified that, post-bankruptcy, appellant received several checks in large amounts that did not appear to be payroll checks, and that one check indicated it was for cash; that appellant took tires from SMC and sold them in Florida; and that appellant contacted at least one customer and requested that payment be made directly to SMC. Such evidence was sufficient within the meaning of Jackson v. Virginia, supra, to show intent and support the verdict.

(b) OCGA § 16-8-2 provides that:

[a] person commits the offense of theft by taking when he unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated.

Wendall Bearden, president of Bearden Oil Company, testified that, on Thursday, October 26, 1995, he delivered race fuel to the raceway and that appellant and his partners sold this fuel at the raceway to the drivers of the race cars for a profit. The cost of the fuel was $2,856, and Bearden required cash payment for the fuel by appellant and his partners at the time of delivery. At delivery, appellant and his partners wrote Bearden a check for the amount due. When Bearden presented the check to a bank for payment, payment on the check had been stopped by appellant and his partners. Bearden further testified that he had not been paid for the fuel at the time of trial and that any unused portion of the fuel was not returned to him. From such evidence, the jury was authorized to find that appellant and his partners issued a check they had no intention to honor in order to induce Bearden to deliver the fuel. The foregoing evidence, construed in a light most favorable to the jury’s verdict, was sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of theft by taking. Jackson v. Virginia, supra.

Decided September 13, 1999

Reconsideration denied September 29, 1999

Christopher J. McFadden, for appellant.

Lydia J. Sartain, District Attorney, Lee Darragh, Assistant District Attorney, for appellee.

2. Appellant also enumerates as error the trial court’s denial of his motion for new trial. In his motion for new trial, appellant sets out five grounds on which he contends the trial court should grant him a new trial. Grounds one through four clearly go to the sufficiency of the evidence, and our ruling in Division I is dispositive of these grounds. To the extent ground five can be construed to set forth an ineffective assistance of counsel claim, appellant did not support this assertion in his brief with any argument or citation to the record. Accordingly, this assertion is deemed abandoned. Court of Appeals Rule 27 (c) (2); Luxenberg v. Griffith, 237 Ga. App. 201, 202 (514 SE2d 63) (1999).

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.

       The trial court directed a verdict to the remaining counts.

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

       Initially, SMC filed a petition for Chapter 11 bankruptcy. On motion of creditors, about six months after SMC filed bankruptcy, the bankruptcy court appointed a Chapter 11 trustee and converted SMC’s bankruptcy petition to Chapter 7.

       Appellant’s reliance on Elliott v. State, 149 Ga. App. 579 (254 SE2d 900) (1979), and Gill v. State, 197 Ga. App. 558 (398 SE2d 833) (1990), is misplaced. In this case, appellant was to pay cash at the time of delivery. In both Elliott and Gill the defendant was allowed to take possession of the goods with the promise of payment in the future.


author: Smith, Judge.

text:
    A99A0840.
    COLUMBUS FIRE DEPARTMENT/COLUMBUS CONSOLIDATED GOVERNMENT v. LEDFORD.
    (523 SE2d 58)
   Smith, Judge.

The Columbus Fire Department/Columbus Consolidated Government appeals an order of the superior court that reversed an award by the appellate division of the State Board of Workers’ Compensation. We granted the request for discretionary review to determine whether the superior court erred in finding that Walder L. Led-ford, Jr., a firefighter, had sustained a compensable claim for workers’ compensation benefits relating to post-traumatic stress.

In February 1997, Ledford filed a claim using September 22, 1995, as the date of accident and seeking temporary and permanent partial disability benefits, medical expenses, attorney fees, and penalties. The claim form described the “accident” as “fp]ost-traumatic stress causing anxiety disorder.”

The administrative law judge (“ALJ”) took judicial notice of the fact that the claim form alleged a non-physical injury and relied upon the following facts in making her decision.

On January 12, 1995, Ledford experienced chest pains and tingling before going to a fire. He had felt this same tightness in his chest in March 1994 while undergoing training for a survival course.

In February 1995, Ledford participated in fighting a fire at an abandoned hosiery mill where he experienced some minor smoke inhalation. The fire department accepted responsibility for medical treatment, and Ledford returned to full duty less than a week later.

In June 1995, Ledford was dispatched with other firefighters to the scene of a house fire. When Ledford discovered that a person had succumbed, he sat on the back of the fire truck, claiming that psychologically he could not fight the fire. The ALJ noted that Ledford “incurred no physical injury and in fact did not even engage in fighting the fire.” Ledford continued, however, working regular duty as a firefighter. In July 1995, Ledford was dispatched to an automobile accident scene in which there were multiple fatalities. The ALJ noted that “[w]hile the employee received absolutely no physical injury while performing his job duties at this accident scene, he testified he experienced psychological trauma from witnessing multiple deaths and hearing the screams of one accident victim.” Ledford continued working regular duty. Finally, on September 22, 1995, during a survival training session, Ledford experienced a panic attack while pulling a breathing mask over his head. As noted by the ALJ, Ledford “testified that he received no physical injury at this training session.” Ledford consulted Dr. Michael Sims, his family physician, who, after diagnosing a panic attack, referred Ledford for counseling from a psychologist, Dr. William McGowan. While receiving his full salary, Ledford remained out of work from September 22, 1995 through May 20, 1996. When he returned to work, the department assigned him to a fire station maintenance position that did not require that he respond to fires or accidents.

The ALJ found that when Ledford experienced the problem with smoke inhalation in February 1995, “he suffered no psychic trauma.” The ALJ further noted that Ledford admitted that on September 22, 1995, when he was diagnosed with psychic trauma, he had suffered no physical injury. The ALJ determined that Ledford’s “psychic injury is the result of and has continued only as the result of purely psychic stimuli and not of a physical injury.” The ALJ decided that Ledford’s psychological condition, which manifested in chest tightness, irritability, insomnia, and restlessness, was the result of witnessing severe injuries and deaths in fires and automobile accidents. Applying Southwire Co. v. George, 266 Ga. 739 (470 SE2d 865) (1996), the ALJ determined that the fire department had no liability for Ledford’s claims. Citing Abernathy v. City of Albany, 269 Ga. 88 (495 SE2d 13) (1998), the appellate division affirmed, finding that “the evidence failed to persuasively establish that the employee’s psychological condition was causally related to a physical injury sustained on the job.”

The superior court, however, reversed, deciding that the ALJ had misstated crucial testimony in finding that Ledford would still be suffering psychological injury and post-traumatic stress disorder even had he not experienced the smoke inhalation incident. Specifically, the superior court pointed to testimony by Ledford’s physician that the smoke inhalation incident was the “ ‘straw that broke the camel’s back,’ tipping the claimant over into the psychological disability he suffers.” The court emphasized Dr. Sims’s testimony that observed that the smoke inhalation episode had “certainly contributed” to Ledford’s psychological disability. The superior court concluded that both the ALJ and the appellate division had applied an incorrect legal standard “amounting to erroneously requiring that the claimant’s physical injury precipitate and/or cause his psychological disability.”

1. The fire department contends that the superior court erred by improperly engaging in factfinding and evidentiary inquiry.

When reviewing a workers’ compensation award, the evidence must be construed in the light most favorable to the party who prevailed before the appellate division. Atlas Automotive v. Wilson, 225 Ga. App. 631, 633 (1) (484 SE2d 669) (1997). When supported by any evidence, findings of fact by the state board are conclusive and binding on reviewing courts, and judges lack authority to set aside an award based on disagreement with the board’s conclusions. Gleaton v. Hazelwood Farms, 214 Ga. App. 825, 826 (449 SE2d 170) (1994).

By law, a psychological injury is compensable only “if it arises ‘“naturally and unavoidably” . . . from some discernible physical occurrence.’ [Cits.]” Southwire, supra at 741.

[A] claimant is entitled to benefits under the Workers’ Compensation Act for mental disability and psychic treatment which, while not necessarily precipitated by a physical injury, arose out of an accident in which a compensable physical injury was sustained, and that injury contributes to the continuation of the psychic trauma. The physical injury need not be the precipitating cause of the psychic trauma; it is compensable if the physical injury contributes to the continuation of the psychic trauma.

Abernathy, supra at 88-89.

As we read Abernathy in conjunction with Southwire, in order for a psychological injury to be compensable, it must satisfy two conditions precedent: (1) it must arise out of an accident in which a compensable physical injury was sustained; and (2) while the physical injury need not be the precipitating cause of the psychological condition or problems, at a minimum the physical injury must contribute to the continuation of the psychological trauma. Here, Ledford, who had the burden of proof, failed to satisfy the first condition: proving that his psychological problems arose out of an accident in which a compensable physical injury was sustained. Compare Wilson, supra at 634 (1) (major depressive disorder worsened by inability to fully recover from back injury suffered at work). In fact, it is undisputed that on September 22, 1995, the date of the purported accident, Led-ford did not sustain any physical injury.

Ledford’s physician, Dr. Sims, concluded that Ledford had experienced a panic attack. Moreover, the office notes of Dr. Sims for that day disclose that Ledford’s feelings were similar to those experienced during a March 1994 survival training session, a date nearly a year before the smoke inhalation incident. Dr. McGowan’s testimony suggested that Ledford’s psychological disorder of post-traumatic stress was likely the result of Ledford’s suppression of witnessing traumatic events. In fact, Ledford, a veteran firefighter with 21 years of service, admitted that his psychological problems had begun very early in his fire fighting career. According to Ledford, within a few years of commencing work with the fire department,

I experienced a gentleman had set himself on fire. And we had to chase him down. And I think that’s actually when it first began, because I had never been used to seeing deaths and stuff. And as my career continued on, I had seen multitudes of deaths and burn victims and wreck victims.

Decided September 29, 1999

Swift, Currie, McGhee & Hiers, Douglas A. Bennett, for appellant.

Hatcher, Stubbs, Land, Hollis & Rothschild, Teri Y. Callahan, for appellee.

As was noted by his treating physician in a May 8, 1996 letter, Led-ford has what is “felt to be a post-traumatic stress syndrome which evolved and has been associated with his work in the fire department.”

Even assuming that Ledford’s psychological problems emanated from “revolting employment related experience [s]” that caused the ensuing psychological injury, such an injury is not compensable under present law. Abernathy, supra at 90-91; Bibb County v. Short, 238 Ga. App. 291, 292 (518 SE2d 484) (1999). Since the record contains some evidence to support the ALJ’s findings, under the “any evidence” standard of review that award and the board’s affirmance of it must be upheld. Winn Express Co. v. Hall, 202 Ga. App. 45, 47 (413 SE2d 505) (1991). The superior court erred by substituting its own findings and in reversing the state board’s award. Guarantee Mut. Ins. Co. v. Wade Investments, 232 Ga. App. 328, 330 (499 SE2d 925) (1998); Metro Interiors v. Cox, 218 Ga. App. 396, 399 (461 SE2d 570) (1995); Gleaton, supra.

2. In light of this holding, we need not reach the remaining enumerations of error.

Judgment reversed.

Pope, P. J., concurs. Eldridge, J., concurs in judgment only.

       The space under “[a]dditional dates of accident which will be involved (if any)” was left blank.


text:
    A99A1240.
    THOMPSON v. THE STATE.
    (523 SE2d 53)
   Blackburn, Presiding Judge.

Ronald Wade Thompson appeals the denial of his motion to dismiss a probation warrant, contending that the trial court lacked jurisdiction to issue the warrant because his sentence was completed. Because the language of Thompson’s sentence is ambiguous and we are required to construe any ambiguities in the sentence to the defendant’s benefit, we reverse.

On December 19, 1991, Thompson pled guilty to one count of forgery in the second degree and was sentenced to five years probation consecutive to a sentence imposed in a prior conviction. In addition, the trial court required Thompson to attend alcohol counseling twice monthly for two years after his release from prison as a special condition of his probation. As the sentence in the prior conviction ended on or about August 18, 1994, Thompson began his five-year probated sentence that same date. Thus, his sentence would have been completed on or about August 18, 1999.

On April 17, 1995, the trial court, finding that Thompson had violated the terms of his probation, ordered in relevant part:

[T]he probation provisions, in said original sentence be: Revoked in accordance with OCGA § 42-8-38, 17-10-1 (a) (3) (A) and the Defendant is hereby required to complete the Detention Center Program, at the Northwest Probation Detention Center. He is also required to attend weekly alcohol counseling until expiration of sentence.

Thompson completed the Detention Center Program in August 1995, approximately one year after his five-year probated sentence began.

In April 1998, Thompson was arrested for aggravated assault, criminal trespass and driving on a suspended license. After the State filed a petition for modification/revocation of probation based on the aggravated assault charge, Thompson filed a plea of former jeopardy and motion to dismiss the probation warrant, which was denied by the trial court. The trial court found that the April 17, 1995 order intended for Thompson to remain on probation supervision after his release from the probation detention center.

Thompson contends that his sentence ended in August 1995 when he completed the Detention Center Program in accordance with the trial court’s April 17, 1995 order. Thus, he asserts the trial court erred by denying his motion to dismiss the State’s petition to revoke probation. We agree.

We are called upon to interpret the trial court’s order in which Thompson’s probation was revoked, and we look to the intent expressed in the order as written. Hulen v. State, 207 Ga. App. 465 (428 SE2d 405) (1993). The language at issue in Hulen was identical to the language here, stating “that the probation provisions in said original sentence be revoked in accordance with OCGA § 42-8-38.” The order continued, sentencing Hulen to incarceration and stating the date of his release. “There [was] no indication in the sentence that any portion of Hulen’s probation was to be reinstated upon his release.” Id. at 466 (1). Likewise in Fulp v. State, 217 Ga. App. 603 (458 SE2d 395) (1995), the trial court stated that probation was revoked “in its entirety,” and Fulp was sentenced to serve five years.

Decided September 29, 1999.

Sanford A. Wallack, Jill L. Anderson, Lee W. Fitzpatrick, for appellant.

David McDade, District Attorney, Stephen L. Corso, Assistant District Attorney, for appellee.

In the present case, the order expresses the intent to abolish the sentence of probation in the original order and change Thompson’s sentence from five years probation to incarceration. The order expressly revoked the probation provisions in the original sentence and sentenced Thompson to a detention center. Notably, probation was not reinstated after completion of the Detention Center Program.

The State argues that the requirement that Thompson attend weekly alcohol counseling “until expiration of sentence” indicates that his probation was to continue. However, that requirement is also consistent with Thompson’s interpretation that the sentence and alcohol counseling terminated when Thompson’s incarceration ended, which he believed to be the end of his sentence. These two conflicting interpretations show that the sentence is ambiguous with regard to whether Thompson was to remain on probation supervision after completing the detention center program.

Sentences must be clear, unambiguous and above reasonable question as to the intent. Fulp, supra. “[W]here the contrary is the case, the benefit of the doubt should be given to the accused.” (Punctuation omitted.) Id. at 605. A “[d]efendant must be given the benefit of the doubt as to the effect of the sentence. In other words, the ambiguous sentence must be given the construction which favors the liberty of the individual.” (Citation omitted.) Thomason v. State, 199 Ga. App. 875, 876 (2) (406 SE2d 528) (1991). Consequently, under the circumstances of this case, we are required to give Thompson the benefit of the doubt. Thus, the sentence must be construed as sentencing Thompson to completion of the Detention Center Program in lieu of probation, and the trial court abused its discretion by denying Thompson’s motion. State v. Jones, 196 Ga. App. 896 (397 SE2d 209) (1990).

Judgment reversed.

Barnes and Ellington, JJ, concur.


text:
    A99A1393.
    In the Interest of T. L. H. et al., children.
    (523 SE2d 50)
   Smith, Judge.

The father of D. T. B. appeals from the order of the Juvenile Court of Glynn County terminating his parental rights. The mother’s parental rights to three of her children, including D. T. B., were also terminated, as were the rights of the putative fathers of the other two children. The mother filed an appeal as well, but subsequently withdrew her appeal. Although the father contends that the burden of proof required for termination was not met, we find that the evidence presented amply supported the decision to terminate his parental rights to D. T. B.

The decision to terminate parental rights is a two-step process. The court must first determine whether clear and convincing evidence exists of parental misconduct or inability. OCGA § 15-11-81 (a). If it does, then the court decides whether termination of parental rights is in the best interest of the child. Parental misconduct or inability is found when the child is deprived; the lack of proper parental care or control has caused the deprivation; the deprivation is likely to continue or will not be remedied; and it is likely to cause serious physical, mental, emotional, or moral harm to the child. OCGA § 15-11-81 (b) (4) (A); In the Interest of A. M. V., 222 Ga. App. 528, 529 (474 SE2d 723) (1996). The same factors that show parental misconduct or inability may also support a finding that termination is in the best interest of the child. In the Interest of D. T., 221 Ga. App. 328, 329 (1) (471 SE2d 281) (1996). In cases where a parent’s rights to a child have been terminated, the appropriate standard of appellate review is whether any rational trier of fact could have found by clear and convincing evidence that the parent’s rights to custody have been lost, viewing the evidence in the light most favorable to the appellee. In the Interest of J. D. D., 215 Ga. App. 68, 69 (449 SE2d 655) (1994). We must give deference to the juvenile court in the area of factfinding and affirm its judgment unless the appellate standard is not met. Id.

The record shows that D. T. B., a boy, was bom on September 23, 1993. His mother has a long history of drug abuse going back to age 14. She has been in numerous outpatient treatment programs and at least seven long-term residential treatment programs. At the time of the hearing on the termination petition she was enrolled in her second one-year residential treatment program, with nine months left to complete. Two older female siblings of D. T. B. were removed from her custody in 1991 because of her neglect and involvement with drugs. D. T. B. was removed from her custody in 1994 when appellant and the mother were arrested for selling crack cocaine.

The father has a long history of involvement with drugs and other criminal activity. He has been incarcerated for a number of felonies, has spent most of the time since 1988 behind bars, and was in prison when D. T. B. was bom. He was released when D. T. B. was two months old and lived with him for two months before being arrested with the mother. He has remained incarcerated since that time.

The father essentially concedes that this evidence demonstrates D. T. B.’s deprivation. He contends, however, that the standard required for terminating his parental rights was not met in this case because no showing was made that the deprivation will continue. He focuses on the lack of evidence of his unfitness, and on certain apparently mistaken testimony of a caseworker from the Glynn County Department of Family & Children Services concerning his possible release from prison.

The father argues that D. T. B.’s deprivation was caused entirely by his incarceration. He points to the testimony of D. T. B.’s mother that during the two months the father lived with D. T. B., he provided the baby with food and diapers and made an effort to be a father. He also argues that the trial court relied heavily on the testimony of the DFACS caseworker that she believed the father could not be paroled from prison until 2001 and that it was not fair to make D. T. B. wait that long to determine whether the father could demonstrate an ability to care for the child. The father states in his brief that he has now been released from prison, maintains a home, and works full-time. But he has not supplemented the record with evidence to support these statements in his brief, which do not constitute evidence. “The burden is on him who asserts error to show it affirmatively by the record. A brief cannot be used in lieu of the record for adding evidence.” (Citations and punctuation omitted.) CNL Ins. America v. Moreland, 226 Ga. App. 57, 58 (485 SE2d 515) (1997).

But even if the statements in his brief are true and supported by the record, the juvenile court could not rest a decision with regard to the child’s future on a father’s bare assertion that he is now ready to assume the responsibilities of fatherhood, when those positive promises are “contrary to negative past fact.” (Citation and punctuation omitted.) In the Interest of R. N., 224 Ga. App. 202, 205 (2) (480 SE2d 243) (1997). And in this case, notwithstanding two months of diapering and feeding, the father’s past conduct also includes the complete failure to communicate with D. T. B. in any way during the father’s most recent incarceration. It includes a nearly complete failure to comply with the case plan goals established for him. The case plan required him to file a legitimation petition, pay child support, and visit and maintain a relationship with D. T. B. to the best of his ability. He did not pay child support and had no contact whatsoever with the child. D. T. B. does not even know that appellant is his father. The father filed a legitimation petition only after DFACS filed a petition to terminate his parental rights.

Decided September 29, 1999.

Newell M. Hamilton, Jr., for appellant.

Edward Bess, Sr., pro se.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Stephanie B. Hope, Assistant Attorneys General, James A. Chamberlin, Jr., for appellee.

Appellant has four other children, ranging from 14 to 29 years old, and his failure to provide proper support for them indicates that the deprivation of D. T. B. is likely to continue. Termination of parental rights is not warranted because of incarceration of the parent alone. But repetitive past incarcerations may be a factor in deciding whether the deprivation caused by the parent’s incarceration is likely to continue.

When an incarcerated parent has a criminal history of repetitive incarcerations for the commission of criminal offenses, this constitutes an additional factor which may be considered in determining whether the child presently is without the proper parental care and control of the offending parent, and that such is likely to continue.

(Citation and punctuation omitted; emphasis in original.) In the Interest of D. A. P., 234 Ga. App. 257, 259 (506 SE2d 438) (1998).

After reviewing the evidence presented in the light most favorable to the appellee, we conclude that given the length of time that the father’s problems have existed, his history with four other children, and his failure to communicate with D. T. B., the juvenile court correctly determined that the child’s deprivation was likely to continue and that it was in the best interest of D. T. B. to terminate the father’s parental rights.

Judgment affirmed.

Pope, P. J., and Eldridge, J., concur.