text:
    A01A2047.
    CUPE v. THE STATE.
    (560 SE2d 700)
   Mikell, Judge.

A jury convicted Walter Charles Cupe, Jr. of battery for striking his girlfriend’s developmentally disabled eight-year-old daughter on her buttocks, legs, and lower back. OCGA § 16-5-23.1 (a). The court sentenced Cupe to 12 months to be served either in the Troup County work camp or in a work release program. After the court denied his motion for new trial, Cupe appealed, claiming that the evidence was insufficient to support his conviction and that he was denied effective assistance of counsel. He further argues that the trial court erred in ruling that the victim was competent to testify at trial, in admitting hearsay testimony, in denying his motion for a directed verdict, and in denying his motion for funds to hire a psychologist. We affirm the conviction.

On appeal from a criminal conviction, the evidence is viewed in the light most favorable to the verdict. Paul v. State, 231 Ga. App. 528 (499 SE2d 914) (1998). We do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Williams v. State, 233 Ga. App. 217 (1) (504 SE2d 53) (1998).

Viewed in the light most favorable to the verdict, the evidence shows that the victim in this case, K. L., suffers from a medical condition known as incontinentia pigmenti, which can cause a degree of mental retardation. K. L. has a vocabulary of approximately 35 words and is considered a special needs child. At the time of the incident, she was eight years old and resided with her mother, Terrie Fomby, and her mother’s boyfriend, Cupe.

K. L.’s father, Glen Loper, testified that he picked up his daughter for a weekend visit on October 8, 1999. When he bathed her later that evening, he noticed severe bruising on the child’s body that he described as “[w]hole hand prints across her butt, inside of her legs just like where they had been hit with a buckle, just belt marks across them. . . . All the way down from her lower back, all the way down to her knees.” When Loper asked K. L. who had beaten her, she said, “Waa-waa,” which is the name with which she referred to Walter Cupe.

Loper drove K. L. to the emergency room that night, where she was examined by Dr. Eric Richardson. The next morning, Loper took K. L. to her pediatrician, Dr. George Lechacz. At trial, the doctors identified photographs of K. L. showing extensive bruising. Both doctors concluded that the child’s bruises were caused by blunt trauma. Dr. Lechacz testified that the shape and characteristics of the bruises indicated that they were caused by a person’s hand and the end of a belt. The doctors further testified that the bruises were in various stages of healing. Dr. Richardson estimated that the more recent ones were approximately twenty-four hours old, and that the remainder varied from five to ten days old. Dr. Lechacz testified that he believed the bruises he observed were between one and three days old.

Loper reported the suspicious bruising to the Hogansville Police Department. Following an investigation, Cupe was charged with battery. At trial, Sheila Spinks, a special education teacher who taught the victim for two and one-half years, testified that during an interview in the course of the investigation, K. L. told her that Cupe had whipped her. A videotape of the interview was played for the jury over the defendant’s objection. Debra Roberts, the Troup County Department of Family & Children Services (the “Department”) caseworker who investigated the case, testified that she heard K. L. tell Spinks that ""Waa-waa” had hurt her. Officer David Wisniewski of the Hogansville Police Department similarly testified that K. L. told him that ""Waa-waa” had beaten her. Likewise, Lewis Fomby, K. L.’s maternal grandfather, testified that the child told him that Cupe had inflicted the bruises on her and that his granddaughter was afraid of Cupe. Itia Chester, Cupe’s cousin and next-door neighbor, testified that she had observed Cupe beat his children in the past. It was undisputed that Cupe had been caring for K. L. during the week prior to October 8, and that he was with the child that day.

1. On appeal, Cupe contends that the evidence was insufficient to support the jury’s verdict. In a separate enumerated error, he argues that the court erred in denying his motion for directed verdict. We disagree and affirm the conviction.

A directed verdict of acquittal should be granted only when there is no conflict in the evidence, and the evidence, with all reasonable deductions and inferences, demands a verdict of acquittal as a matter of law. OCGA § 17-9-1 (a); Gunter v. State, 237 Ga. App. 863 (517 SE2d 105) (1999). The standard for reviewing both a challenge to the sufficiency of the evidence and the denial of a motion for a directed verdict is whether, under the rule set forth in Jackson v. Virginia, supra, the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense. Id.

OCGA § 16-5-23.1 (a) provides: “A person commits the offense of battery when he or she intentionally causes . . . visible bodily harm to another.” The statute further provides in subsection (b) that the term “visible bodily harm” means “bodily harm capable of being perceived by a person other than the victim and may include, but is not limited to, . . . substantial bruises to body parts.”

We conclude that the evidence summarized above was sufficient to enable a rational trier of fact to find Cupe guilty of battery beyond a reasonable doubt under the standard set forth in Jackson v. Virginia, supra. See Hussey v. State, 206 Ga. App. 122, 123 (2) (424 SE2d 374) (1992).

2. We also reject Cupe’s argument that the trial court erred in ruling that the victim was competent and “available” to testify for the purposes of the Child Hearsay Statute, OCGA § 24-3-16. The court held a hearing to determine the competency of K. L. prior to the trial. After hearing testimony and viewing the videotape of Spinks and Deputy Rick Massie’s interview with the child, the court ruled that K. L. was available to testify. Consequently, the videotaped interview and the testimony of a number of the state’s witnesses with whom K. L. spoke about the abuse were admitted at trial.

Under the Child Hearsay Statute, a statement made by a child under the age of 14 that describes physical abuse by another is admissible in evidence by the testimony of the person to whom the statement was made “if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.” OCGA § 24-3-16. Cupe argues that K. L.’s competence at the time of trial was never established; therefore, the court erred in concluding that she was available to testify. We note that Cupe does not take issue regarding the second prong of the statute, whether the circumstances of the statements provide sufficient indicia of reliability. See generally Jenkins v. State, 235 Ga. App. 53, 55 (1) (b) (508 SE2d 710) (1998).

Contrary to Cupe’s argument, we find that the trial court did not err in ruling that K. L. was available to testify for the purposes of the Child Hearsay Statute. As a preliminary matter, we note that “[t]he trial court has broad discretion in determining the admissibility of child hearsay evidence.” (Punctuation omitted.) Woolums v. State, 247 Ga. App. 306 (1) (540 SE2d 655) (2000), citing Right v. State, 242 Ga. App. 13, 15-16 (1) (528 SE2d 542) (2000).

Cupe is correct that the relevant inquiry is whether the child is competent to testify at the time of the trial. Hunnicutt v. State, 198 Ga. App. 572, 573 (1) (402 SE2d 534) (1991). However, there was ample evidence in the record to support the court’s determination that K. L. was competent to testify at the relevant time. Spinks testified that K. L. was able to communicate, reason, and think, that she understood the questions she was asked during the investigation and gave appropriate responses, and that she would not be easily influenced to provide coached testimony. Deputy Massie testified that K. L. was able to provide meaningful responses to the questions he asked during the interview. The trial court had an opportunity to view the videotaped interview for the purpose of determining the child’s competency to testify at trial. Accordingly, the trial court did not abuse its discretion when it ruled that K. L. was “available” to testify at the trial.

3. Cupe argues that the trial court erred in denying his motion for new trial because he was denied effective assistance of counsel. He raises a number of alleged deficiencies in his trial counsel’s performance.

To establish ineffectiveness, a defendant must prove that his trial counsel’s performance was deficient and the deficiency prejudiced his defense to the extent that there was a reasonable probability the result of the trial would have been different but for defense counsel’s unprofessional deficiencies.

Hardegree v. State, 230 Ga. App. 111, 113 (4) (495 SE2d 347) (1998). “A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless clearly erroneous.” (Citations and punctuation omitted.) Williams v. State, 234 Ga. App. 191, 193 (2) (506 SE2d 237) (1998). Bearing these principles in mind, we find no merit to Cupe’s claims.

(a) In two enumerated errors, Cupe alleges ineffective assistance of counsel because his trial attorney failed to object properly to the state’s introduction of the videotaped interview at the competency hearing and at trial. He contends that the state failed to lay an adequate foundation before the videotape was played.

The use of videotape evidence has become very common, and it is likely that counsel made a tactical decision not to make that particular objection during the competency hearing and trial. If counsel had objected, the state would have easily established a foundation by asking the witness questions such as how the tape was preserved, whether any changes were made to the recording, who made the video, whether the recorder worked properly, whether he knew how to operate it, and whether the testimony on the tape was given under duress. See Nobles v. State, 233 Ga. App. 63, 64 (3) (503 SE2d 321) (1998).

“There is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance, and that any challenged action by trial counsel might be considered sound trial strategy.” (Punctuation omitted.) Williams, supra, 234 Ga. App. at 193 (2). “Counsel’s decisions on matters of tactic and strategy, even if unwise, do not amount to ineffective assistance of counsel.” Scott v. State, 238 Ga. App. 258, 260 (2) (518 SE2d 468) (1999) . See also Aleman v. State, 227 Ga. App. 607, 612 (3) (489 SE2d 867) (1997).

Furthermore, the transcript reveals that Cupe’s counsel did object to the introduction of the videotape during the competency hearing based on the Child Hearsay Statute, OCGA § 24-3-16. Immediately following the court’s ruling that the child was available for trial, counsel again argued that the state had not met the requirements of the Child Hearsay Statute. The court overruled his objection. Likewise, when the state introduced the videotape during the trial, counsel stated, “I renew my same objection,” referring to his prior objections to the admission of the videotape. Thus, Cupe’s argument that counsel failed to object has no merit.

(b) Cupe further alleges ineffective assistance because his trial counsel failed to object to the victim’s competency at the time of trial. We reject this argument.

First, as we noted above, the transcript shows that counsel did object when the state introduced the videotape of the interview during the trial. Furthermore, Cupe has failed to demonstrate deficient performance or prejudice based on counsel’s failure to raise the objection urged by Cupe on appeal. “As discussed in Division [2], the evidence supported the trial court’s finding of competency, and trial counsel’s failure to object further to the finding of competency was not ineffective assistance of counsel.” King v. State, 194 Ga. App. 662, 664 (7) (391 SE2d 660) (1990).

(c) Next, Cupe complains that his counsel failed to make a proper objection to the hearsay testimony of Dr. Richardson. Specifically, the doctor testified that the victim’s father told him that Cupe had inflicted the bruises on the child. The record shows that trial counsel objected to the testimony as hearsay, and that the court addressed the matter outside the jury’s presence. The court ultimately allowed the testimony under OCGA § 24-3-4 as a statement made for a medical diagnosis or treatment.

Cupe’s argument that his counsel’s performance was deficient in this instance is wholly without merit. Cupe suggests in his appellate brief that counsel should have made an argument related to the Child Hearsay Statute; however, the testimony was not admitted under that statute because the doctor testified as to K. L.’s father’s out-of-court statement, not the child’s. “Failure to make a meritless objection cannot be evidence of ineffective assistance.” (Citation and punctuation omitted.) Sanders v. State, 211 Ga. App. 859, 862 (1) (440 SE2d 745) (1994).

(d) In two errors, Cupe contends that his counsel was deficient for not objecting to the hearsay testimony of Dr. Lechacz and Loper. The pediatrician testified that when asked, K. L. said that Cupe had inflicted her injuries. Similarly, the victim’s father testified that K. L. told him Cupe had beaten her. Because Dr. Lechacz and Loper related what the child said, their testimony was admissible under the Child Hearsay Statute, OCGA § 24-3-16. Cupe argues that counsel should have objected on the ground that the victim’s competency to testify at trial had not been established, but this argument is without merit. We held in Division 2 that the court properly ruled that the child was competent and available to testify. Therefore, the objections would have been overruled. “Absent a showing of prejudice, inquiry into counsel’s alleged deficiency is unnecessary.” Hardegree, supra at 113 (4). See also Silcox v. State, 241 Ga. App. 845, 846 (c) (528 SE2d 271) (2000); King, supra.

(e) Cupe argues that his counsel rendered ineffective assistance by failing to file a motion for funds to hire a clinical psychologist with expertise in the proper procedure for interviewing children. He suggests in his appellate brief that “such a clinical psychologist could have testified at trial about the proper techniques for interviewing a child with K. L.’s disability and whether the interviewing techniques actually utilized by [Detective] Massie were proper.”

Cupe’s argument fails, however, because he has not demonstrated that there would have been a different outcome had counsel requested funds and called such a witness. To establish the prejudicial effect of trial counsel’s failure to present certain evidence, an appellant “is required to make an affirmative showing that specifically demonstrates how counsel’s failure would have affected the outcome of the case.” (Citation and punctuation omitted.) Ware v. State, 273 Ga. 16, 17 (3) (537 SE2d 657) (2000). “Absent a proffer of what the testimony of his expert would have been at trial, [Cupe] cannot show that there is a reasonable probability that the outcome of the trial would have been different had his counsel taken the suggested course.” Madge v. State, 245 Ga. App. 848, 851 (3) (a) (538 SE2d 907) (2000).

Cupe’s reliance on Barlow v. State, 270 Ga. 54 (507 SE2d 416) (1998), is misplaced. In that case, the Supreme Court held that a defendant should have been permitted to introduce expert testimony regarding how information is ideally obtained from children who have been the victims of sexual abuse. Id. at 55. The Court did not require that the trial court provide funds for such a witness, nor did it mandate that such expert witnesses be called in all cases involving child victims.

Because Cupe has failed to demonstrate that his counsel’s performance was deficient or how he was prejudiced by the fact that his trial counsel did not request funds to hire a psychologist, we reject his claim of ineffective assistance of counsel on this ground. See Ware, supra.

(f) Finally, we reject Cupe’s argument that he was denied effective assistance of counsel because his attorney elected not to call the child victim as a witness for cross-examination.

The decisions on which witnesses to call, whether and how to conduct cross-examinations, . . . and all other strategies and tactical decisions are the exclusive province of the lawyer after consultation with his client. In fact, there is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance and that any challenged action might be considered sound trial strategy.

(Citations omitted.) Rice v. State, 243 Ga. App. 143, 147 (3) (531 SE2d 182) (2000). See also Beecher v. State, 240 Ga. App. 457, 460 (4) (523 SE2d 54) (1999) (“Tactical or strategic decisions such as the failure to call certain witnesses do not equate with ineffective assistance of counsel.”) (citations and punctuation omitted).

4. Next, Cupe argues that the trial court erred in ruling that Dr. Richardson’s testimony that K. L.’s father told him Cupe inflicted the child’s bruises was admissible under the medical records exception to the hearsay rule. We agree that the court erred in admitting the statement under OCGA § 24-3-4, which permits out-of-court statements made for the purpose of describing medical history reasonably pertinent to diagnosis or treatment. Roberson v. State, 187 Ga. App. 485, 486-487 (370 SE2d 661) (1988). However, any error was harmless, as the doctor’s testimony was cumulative. Johnson v. State, 149 Ga. App. 544, 545 (5) (254 SE2d 757) (1979). Loper, Spinks, Wisniewski, Roberts, and Fomby testified that K. L. told them that Cupe had beaten her. Thus, this harmless error does not require reversal of Cupe’s conviction. Id. See also Respres v. State, 244 Ga. App. 689, 691 (3) (536 SE2d 586) (2000).

Decided January 25, 2002

Reconsideration denied February 21, 2002.

Alfred F. Zachry, for appellant.

Walter Cupe, pro se.

L. Jack Kirby, Solicitor-General, for appellee.

5. Finally, Cupe argues that the trial court erred in denying his post-trial motion for funds to hire a clinical psychologist with expertise in the proper procedure for interviewing children in connection with his motion for new trial.

It is well settled that “[t]he granting or denial of a motion for appointment of expert witnesses lies within the sound discretion of the trial court.” (Punctuation omitted.) Pruitt v. State, 270 Ga. 745, 750 (8) (514 SE2d 639) (1999), citing Henry v. State, 265 Ga. 732, 735 (462 SE2d 737) (1995). After considering Cupe’s motion, which was filed after his conviction, the trial court concluded: “here we have a case which has already been tried to a jury and a request for funds to seek out testimony which would be marginally relevant at best. Based on these facts, said motion is hereby denied.” We conclude that the court did not abuse its discretion in denying Cupe’s post-trial motion. See Snow v. State, 228 Ga. App. 649, 653 (8) (492 SE2d 564) (1997).

Judgment affirmed.

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


source: Caselaw Access Project

author: Smith, Presiding Judge.

license: Public Domain

text:
    A01A1704.
    In the Interest of A. A., a child.
    (560 SE2d 763)
   Smith, Presiding Judge.

Following a hearing, a juvenile court adjudicated A. A. delinquent, finding that A. A. committed acts which, if committed by an adult, would have constituted aggravated assault. A. A. was sentenced to 90 days in a “Short Term Program,” but this sentence of confinement was suspended provided that A. A. successfully completed a year’s probation. A. A. appeals, challenging the sufficiency of the evidence. She also contends that she was erroneously denied the opportunity to mediate her case and was denied due process and equal protection. Because the evidence supports the trial court’s findings, and because we conclude that A. A. waived her constitutional arguments and any argument concerning the failure to mediate, we affirm.

1. In considering a challenge to the sufficiency of the evidence supporting a juvenile court’s adjudication of delinquency, we construe the evidence and all inferences drawn therefrom in favor of the juvenile court’s decision to determine if a rational trier of fact could have found, beyond a reasonable doubt, that the juvenile committed the act charged. In the Interest of S. P., 240 Ga. App. 827 (525 SE2d 403) (1999). Viewed in this light, the record shows that M. P. and S. C. were threatened with a knife by A. A., age 12. M. P, age ten, testified that he and S. C. approached A. A. to talk with her, “and she pulled out this knife and stuck it a little bit to my throat . . . and said she’ll cut my throat. She threatened [S. C.] She got him in the middle of the head with the knife.” She also told the boys she was “not playing around.” S. C. similarly testified that A. A. “stuck a knife at us” and threatened “to throw the knife at” him. He described the weapon as a butcher knife.

A. A. testified that she acted in self-defense. She stated that she was sitting next to her mailbox talking on the telephone when she was struck in the head by a rock. She saw the boys she believed threw the rock run away in opposite directions. After staying on the telephone “a long time,” and after her mother returned home from work, rested, prepared dinner, and left the house again, A. A. retrieved a knife from her kitchen as “protection” or “self defense” and left her home. She found one of the boys she had seen earlier and asked him who hit her. He replied that the other boy with him did it. A. A. testified that M. P. and S. C. approached her, cursing and asking if she wanted to fight. She stated she thought they were “going to do something. So I just pulled the knife out and told them to back up and leave me alone, I’m not in the mood right now.”

The victims’ testimony, although in conflict with that of A. A., was sufficient to authorize the finding that through A. A.’s threats and use of the knife, the victims were placed in fear of immediately receiving bodily harm as required by OCGA § 16-5-21. Sufficient evidence was presented to support the “adjudication of delinquency for having committed the designated felony act of aggravated assault.” In the Interest of T.S., 211 Ga. App. 46, 47 (2) (438 SE2d 159) (1993).

2. A. A. argues that the juvenile court violated the Uniform Dispute Resolution Rules promulgated by the Supreme Court of Georgia’s Commission on Alternative Dispute Resolution. She maintains that but for this violation and the resulting failure to mediate her case, she would not have been subject to adjudication. But because we conclude that A. A. failed to raise this issue below, the issue has been waived and will not be considered on appellate review.

It appears that A. A.’s adjudication hearing was continued twice so that A. A., the victims, and all of the children’s parents could pursue mediation. During one hearing in which the possibility of mediation was discussed, the trial court explained the mediation process to the parents and the differences between mediation and adjudication. The victims’ parents indicated a willingness to mediate, and the court instructed the parents to contact the mediator and discuss dates on which to have the mediation. Nearly two months later, the case came on for adjudication, as it was never mediated. Before testimony was given during that hearing, the mediator explained that she had scheduled the mediation “with the victims and then the mama decided she didn’t want to pay for it and that I was violating all her civil rights. Then she decided later that she wanted to come back and do it and one of the victim’s phones had been disconnected and so I couldn’t get back in touch with them. So that is why it hasn’t been mediated.” The prosecutor added that “[w]hen I talked with the victims they said just have the hearing,” and the mediator said that they “had tried and tried and tried.” No objection was interposed at that time by appointed defense counsel, and the adjudication hearing proceeded. After the court heard testimony and determined that A. A. had committed a delinquent act as charged in the petition, A. A.’s mother was permitted to speak to the court. She said that she

would like to know why this trial took place when I did try everything. I have proof that I tried to reach [the mediator] and [defense counsel] to go ahead with the mediation and the mediation did not take place not on my behalf. The first time the mediation date was set I didn’t have all the money and I explained to [defense counsel] that I had half of the money and could I work a payment plan out with [the mediator]. I was never informed if they wanted to work a payment out and the next thing I know we had been contacted to come to court.

The mother also indicated her dissatisfaction with defense counsel’s representation. The court replied that defense counsel had done “an exceptional job in the trying of the case and presentation of the evidence” and explained to the mother that if she was not satisfied, she could employ a lawyer to represent A. A. at her own expense.

Trial counsel subsequently filed a motion to withdraw, explaining that the mother had “expressed her displeasure and disapproval” of his defense and that he had been contacted at the mother’s behest by outside agencies seeking information about the case and justification of his representation of A. A. For these reasons, he believed himself to be in an adversarial relationship with the parties.

The juvenile court allowed withdrawal, granting the motion during a hearing occurring approximately one month after the adjudication hearing, and new counsel entered an appearance. During that hearing, the trial court asked the mother her income. She began to answer that her income was difficult to determine and tried to estimate it, but the juvenile court interrupted her and stated that she would be required to fill out an affidavit of financial status and provide information so that the court could determine whether she qualified for appointed counsel. The court explained that although counsel had been appointed to represent A. A. during the adjudication proceedings, the court had not yet determined whether her parents would be required to reimburse the county to pay for the expenses. The court asked that the financial affidavit be filed within the week of December 18, 2000. A month later, A. A.’s dispositional hearing was held. The failure to have the case mediated was never mentioned or placed into issue by new counsel at either of these hearings. We note that the mother’s financial affidavit was not submitted in December, as directed by the juvenile court, but instead was filed February 2, 2001. The juvenile court then found that A. A. was indigent and entitled to appointed counsel.

On appeal, A. A. argues that the events here were simply a neighborhood dispute among children and that the parties should have been allowed to pursue court-annexed, court-referred mediation to its conclusion but that because she and her mother were indigent, her case was not mediated. Citing to the Uniform Rules for Dispute Resolution Programs, A. A. argues that the juvenile court was required to determine, among other things, and before referring the case to mediation, whether the parties were “able to compensate the neutral if compensation was required.” She points out that this did not occur and that the court “failed to determine whether the alternative dispute resolution service should have been provided free of charge if they were found to be indigent.” A. A. also cites “Alternative Dispute Resolution Rules,” arguing that the juvenile court was required to make “ ADR service free of charge to indigent parties.’ ”

We do not agree with A. A. that reversal is required under the circumstances of this case. After the mediator and prosecutor relayed information to the juvenile court concerning their efforts to mediate the case, A. A.’s counsel interposed no objection, and the adjudication hearing proceeded. Although her mother did state at the conclusion of the adjudication hearing that she had previously expressed a desire to have the mediation and had attempted to pay for the proceedings, A. A. was represented at the hearing by counsel whom the trial court found to be competent and who never made the failure to mediate an issue, either before the adjudication hearing, as discussed above, or afterward. Furthermore, although A. A.’s present counsel argues extensively on appeal that the trial court erroneously failed to require mediation based on A. A.’s failure to pay, after present counsel entered an appearance, the failure to mediate was never put in issue for the juvenile court’s consideration below. “As this is a court for the correction of errors, we will not consider any issues raised on appeal that were not raised and preserved in the trial court.” (Citations and punctuation omitted.) Harris v. State, 234 Ga. App. 126, 128 (2) (505 SE2d 49) (1998).

Decided February 21, 2002.

Alexander T. Rundlet, for appellant.

Tommy K. Floyd, District Attorney, Mary Evans-Battle, Assistant District Attorney, for appellee.

In addition, the record does not show that A. A.’s failure to pay was the sole reason the case did not proceed to mediation. The mediator’s pre-trial statement to the trial court demonstrated that A. A.’s mother had not been fully cooperative. As discussed above, according to the mediator, in addition to deciding that “she didn’t want to pay” for the mediation, the mother also felt that the mediator “was violating all her civil rights.” And although the mother apparently changed her mind, the mediator was unable to contact one of the victims in order to schedule mediation. The record does not show that these facts have been disputed. While the mother argued at the conclusion of the adjudication hearing that she had “proof” of her efforts of pursuing mediation, no such “proof” was ever proffered to the trial court. Finally, according to the prosecutor, the victims had decided to “just have the hearing.” Because the record does not show that the issue was appropriately raised below, and because other circumstances obviously precluded mediation, we find no basis for reversal.

3. A. A. argues that the failure to follow the applicable rules of alternative dispute resolution deprived her of due process and equal protection under the federal and state constitutions. Again, however, these issues were not raised timely below. “A constitutional issue cannot be considered when asserted for the first time on appeal but must be clearly raised in the trial court and distinctly ruled upon there. Contentions regarding a constitutional issue which were not made below are thus not passed upon here.” (Citations and punctuation omitted.) Martin v. State, 195 Ga. App. 548-549 (1) (394 SE2d 551) (1990).

Judgment affirmed.

Barnes and Phipps, JJ, concur.


author: Blackburn, Chief Judge.

text:
    A01A1773.
    ROGERS v. THE STATE.
    (560 SE2d 742)
   Blackburn, Chief Judge.

Dennis Rogers was arrested and charged with possession of marijuana with intent to distribute. Rogers filed a motion to suppress evidence of marijuana found during a search of his vehicle, but the motion was denied. The trial court’s order was certified for immediate review, and we accepted Roger’s interlocutory application to review the trial court’s ruling. For the reasons set forth below, we affirm.

“Upon review of the denial of a motion to suppress, the appellate court construes the evidence in the light most favorable to the trial court’s judgment, and its findings of fact based on conflicting evidence must be accepted unless clearly erroneous.” Woodward v. State.

The evidence presented at the suppression hearing shows that on March 7, 2000, Officer Charles Forney of the Statesboro Police Department stopped a vehicle driven by Rogers because of a defective headlight. After asking to see Rogers’s license and insurance card, Forney initiated a check to determine the status of the license and whether there were any outstanding warrants on Rogers. Forney issued a warning for the defective headlight.

While waiting for the results of the check, Forney began a conversation with Rogers and the passenger in his car and, after noticing apparent conflicts in what each told him about their destination, asked Rogers for consent to search the car. Rogers refused to consent to a search. Still waiting for a response to the license and warrant check, Forney requested that a drug dog be brought to the site of the stop. A few minutes before the drug dog arrived, the radio operator informed Forney that there was an outstanding warrant for Rogers for failing to appear in Screven County and that he was in the process of confirming the warrant. Forney placed Rogers in the back of his car while he waited for confirmation of the warrant, and a few minutes later an officer arrived with the drug dog. When the officer asked Forney if he wanted to make a search of the car incident to arrest, Forney replied, “I told him, I said, you know, the warrant has not been confirmed yet, I just rather that you run the dog around and we’ll wait for confirmation.” At this time the officer took the dog around the car, and the dog alerted to the presence of contraband. Forney searched the car, found marijuana, and placed Rogers under arrest.

Rogers filed a motion to suppress, challenging the search of his vehicle. A hearing was held, and the trial court denied the motion, finding that Forney’s detention of Rogers was reasonable and that the search of Rogers’s vehicle was a legal inventory search.

1. In his first enumeration of error, Rogers contends that the trial court erred in holding that his “continued detention” after the initial stop was reasonable. As an initial matter, we note, and Rogers does not contest, that the initial stop of Rogers’s vehicle was authorized. Officer Forney testified at the suppression hearing that he pulled the vehicle over for a defective headlight. A reasonable officer would have stopped Rogers’s vehicle under these facts. Roundtree v. State; O’Keefe v. State.

While acknowledging that the initial stop was valid, Rogers argues that once Forney issued a warning as to the defective headlight, the traffic stop was concluded and Forney did not have reasonable suspicion of criminal activity sufficient to continue his detention of Rogers. This argument ignores the factual situation presented by this case.

As we have established, Forney initially stopped Rogers for a defective headlight violation, which is a valid reason for stopping a motorist. Although Forney decided to issue a warning rather than a ticket for the violation, he detained Rogers to investigate the status of his license and to ascertain if Rogers had any outstanding warrants. When the radio operator indicated that there appeared to be an outstanding warrant for Rogers and that confirmation of the warrant was being sought, Forney continued the detention for a period of time necessary to confirm the warrant. Regardless of Forney’s testimony regarding the bases for any suspicions he may have had about Rogers and his passenger, the reason for the continued detention was not suspicion of illegal activity but for the legitimate purpose of confirming that a warrant for Rogers was outstanding. Crenshaw v. State Accordingly, the detention of Rogers was authorized.

Because Rogers was validly detained while Forney sought confirmation of the warrant, Forney “was free to have the handler walk the dog around the car, as 'use of a trained drug detection dog, in a location where he is entitled to be, to sniff the exterior of a container, is not an unreasonable search.’” Crenshaw, supra. See also Casey v. State. As the O’Keefe court explained,

The dog in the instant appeal was in a place where he was authorized to be. The container, [defendant’s] car, was not being unlawfully detained. The dog did not intrude into the interior of [defendant’s] car. The area around [defendant’s] car is not [an] area protected by the Fourth Amendment or Par. XIII of Art. I, Sec. I of the Georgia Constitution. The owner or driver of an automobile has no reasonable expectation of privacy in the airspace surrounding his car. The use by the officer of a canine’s enhanced (through training) olfactory sense [ ] cannot convert a sniff of the air around the exterior of the car into an unreasonable search of the interior of the car.

Decided February 21, 2002.

Kicklighter & Persse, Robert L. Persse, for appellant.

O’Keefe, supra at 526 (3). See also State v. Foster. Since the drug dog’s sniffing of the exterior of the vehicle did not constitute a search within the meaning of the Fourth Amendment, reasonable and articulable suspicion is not required before a police officer may use a canine trained in drug detection to sniff the vehicle’s exterior. United States v. Goldstein.

Once the drug dog alerted on the exterior of the vehicle, Forney had probable cause to believe that contraband was contained therein and was authorized to conduct a search of its contents. Roundtree, supra at 794; Casey, supra at 790; Donner v. State. The trial court did not err in denying the motion to suppress.

2. Rogers also contends that the trial court erred in holding that the search of his vehicle was a valid inventory search. “Although the reasons for a trial court’s ruling may be wrong, we may still affirm the court’s ruling if it is right for any other reason. So even if a trial judge incorrectly denies a motion to suppress on one basis, we may affirm the denial on another basis.” (Footnote omitted.) Benton v. State. Though the trial court based its ruling on its determination that the search of the vehicle was a valid inventory search conducted pursuant to the arrest of Rogers, the denial of the motion to suppress was correct for the reasons set forth above.

Judgment affirmed.

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

R. Joseph Martin III, District Attorney, Keith A. McIntyre, Assistant District Attorney, for appellee.

        Woodward, v. State, 245 Ga. App. 409 (537 SE2d 791) (2000).

        Roundtree v. State, 213 Ga. App. 793, 794 (446 SE2d 204) (1994).

        O’Keefe v. State, 189 Ga. App. 519, 522 (376 SE2d 406) (1988).

        Crenshaw v. State, 248 Ga. App. 505, 511 (4) (546 SE2d 890) (2001).

        Casey v. State, 246 Ga. App. 786, 790 (542 SE2d 531) (2000).

        State v. Foster, 209 Ga. App. 143, 146 (433 SE2d 109) (1993).

        United States v. Goldstein, 635 F2d 356, 361-362 (5th Cir. 1981).

        Donner v. State, 191 Ga. App. 58, 60 (380 SE2d 732) (1989).

        Benton v. State, 240 Ga. App. 243, 245 (1) (522 SE2d 726) (1999).


text:
    A01A2078.
    THOMAS v. THE STATE.
    (560 SE2d 745)
   Blackburn, Chief Judge.

James Thomas appeals his convictions of possession of cocaine, driving under the influence of cocaine, exceeding maximum limits, and driving without insurance. He contends that the evidence was insufficient to support his convictions and that the trial court erred in denying his motion to suppress. We affirm in part and reverse in part.

1. In his first enumeration of error, Thomas challenges the sufficiency of the evidence. Specifically, he maintains that there is no evidence in the record that he: (1) was intoxicated or under the influence of either alcohol or drugs; (2) possessed a controlled substance, particularly the cocaine that is the State’s Exhibit 1; or (3) did or did not have insurance.

“In bench trials, the findings of the trial court will not be set aside unless clearly erroneous and regard must be given to the trial court’s opportunity to assess the credibility of the witnesses. [Cit.]” Covrig v. Miller. However, deference to the trial court’s findings does not lessen the burden of proof resting on the State to prove every material allegation of the indictment and every essential element of the crimes charged beyond a reasonable doubt.

Thomas filed a motion to suppress which was heard on October 18, 1999. At the hearing, the only issue was whether the stop of his vehicle was illegal. Officer David Morris, who made the stop, testified that he activated his radar unit when he noticed Thomas’s vehicle traveling at a high rate of speed. The radar indicated that Thomas was going 61 mph in a 45-mph zone. Morris, who had been traveling in the opposite direction, turned his vehicle around and stopped Thomas. The officer testified that he checked Thomas’s license and found that it was valid and then asked for proof of insurance. Thomas returned to his truck and began searching for his insurance card. Before Officer Morris testified any further, Thomas’s counsel informed the trial court that “our contentions are that the stop of the vehicle was illegal. From that point on, we don’t raise an issue. Our issues all occur prior to the physical stopping of the vehicle at the Texaco station.” There was, therefore, no testimony concerning anything that occurred after Thomas went to his truck to look for proof of insurance. Thomas’s main contention was that the radar unit had been used within 300 feet of a reduction of speed limit within a municipality, in violation of OCGA § 40-14-9, and that any evidence obtained as a result was inadmissible. Thomas tendered a photograph and testified himself in support of this contention. The court took the matter under advisement, and the hearing was adjourned.

Thomas waived a jury trial, and a bench trial was held on November 27, 2000. At that trial, Thomas and .the State agreed to the tendering of a crime lab report establishing that State’s Exhibit 1 was cocaine. Thomas also stipulated to the chain of custody of Exhibit 1. Both Thomas and the State stipulated to the transcript of the hearing on the motion to suppress, the State reserving its right to supplement the record. In addition, Thomas tendered as exhibits maps and records in support of his contention that the stop of his vehicle was illegal because the radar unit had been used within 300 feet of a reduction of speed limit in violation of OCGA § 40-14-9. No other argument was made or evidence submitted, and both Thomas and the State rested. The State did not supplement the record.

The case came before the trial court for final disposition on May 15, 2001. Thomas’s counsel, Gilbert Murrah, summarized for the court the prior proceedings, and the prosecutor indicated that he was ready for the court to dispose of the case on the basis of the existing record.

Murrah: On the hearing on the Motion to Suppress, the officer got to the point where he said he had pulled the car over and walked up to the car. There was a question about whether it was daylight or dark or light or dark inside the vehicle. And at that point, I indicated in the Motion to Suppress hearing that the only issue involved in that proceeding was the legality of the stop, and I think that’s where the State left it right there. And we dealt with that in the hearing on the Motion to Suppress. Then we subsequently had a bench trial and we agreed to submit it to you on the record of what was established in the hearing on the Motion to Suppress and the State was going to have an opportunity to put up any additional evidence after they reviewed the transcript if they saw any gaps in their proof. That’s where we are. I don’t know if they have got more they want to produce or not.
The Court: I don’t either.
The State: Like I stated to the Court, I have not reviewed the transcript, have not received the transcript, but am prepared to have the Court deal with this case.

After the State indicated that it was prepared for the court to decide the case based on the existing record, the trial court first ruled on the objection to the radar, finding that the unit had not been operated within 300 feet of a speed limit reduction. The court then found Thomas guilty of Count 1, possession of cocaine; Count 2, driving under the influence of drugs to the extent it was less safe for him to drive; Count 3, operation of a motor vehicle in excess of the maximum speed limit; and Count 4, driving without insurance. The trial court sentenced Thomas to ten years, three to serve, on Count 1, one year on Count 2, one year on Count 3, and one year on Count 4, all sentences to be served concurrently.

As to Thomas’s contention that there was no evidence in the existing record that he was under the influence of drugs, we agree. Count 2 of the indictment charges Thomas with driving under the influence of cocaine “to the extent that it was less safe for him to drive.” He was thus charged with a violation of OCGA § 40-6-391 (a) (2). No blood, urine, or other tests showing that Thomas had ingested cocaine are a part of the record before us. Additionally, there is nothing in the record from which the trial judge could have inferred that Thomas was under the influence of cocaine to the extent that he was a less safe driver. Under these circumstances, the evidence is insufficient to convict Thomas of driving under the influence of drugs in violation of OCGA § 40-6-391 (a) (2). See Sparks v. State, overruled on other grounds, Green v. State. The conviction and sentence for violation of OCGA § 40-6-391 (a) (2) must be set aside.

We also agree with Thomas that nothing in the record supports his conviction for driving without insurance. The State had the burden to show that Thomas did not in fact have insurance at the time he was stopped and that he knew that he did not possess insurance, “knowledge of the lack of insurance [being] an essential element of the offense.” Thompson v. State. The only evidence concerning insurance was Officer Morris’s testimony that when he stopped Thomas, Thomas could not find his insurance card. Accordingly, we find that Thomas’s conviction for driving without insurance must be reversed due to insufficient evidence.

As to Thomas’s conviction for possession of cocaine, we find that there was sufficient evidence of that crime. To convict a defendant for possession of cocaine, the State must prove that the defendant was (1) in possession of (2) an illegal substance. As noted above, Thomas stipulated to the admission of State’s Exhibit 1 and State’s Exhibit 2. State’s Exhibit 1 was a quantity of white powder. State’s Exhibit 2 was the crime lab report establishing that the white powder was in fact cocaine. Thus, there was evidence that Exhibit 1 was an illegal substance. Thomas also stipulated to the chain of custody of Exhibit 1. That chain of custody shows that Exhibit 1 was found in the vehicle owned by Thomas, thereby establishing Thomas’s possession of the cocaine. Viewing this evidence in the light most favorable to the prosecution, we find that the evidence was sufficient for the trial judge, sitting as the trier of fact, to conclude beyond a reasonable doubt that Thomas was guilty of the crime charged.

2. In his second enumeration of error, Thomas contends that the trial court erred in denying his motion to suppress. We find no error.

“When we review a trial court’s decision on a motion to suppress, the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them.” Stovall v. State. In support of his contention, Thomas first claims that the State did not establish that the radar unit was not operated within 300 feet of a reduction of speed limit inside an incorporated municipality, as required by OCGA § 40-14-9, and that evidence obtained in violation of that statute is inadmissible. At the hearing on the motion to suppress, both Thomas and the State agreed that they would have no objection to the trial judge’s “taking a view” of the location at which Thomas was stopped. The trial court did take a view of the area and found “that the spot at which the officer indicated that he commenced the radar, engaged the radar . . . was two-tenths of a mile from and inside the city limits from the 45-mph sign coming into Camilla, traveling south on 19.” This finding is not clearly erroneous; the trial court did not err in denying the motion to suppress.

Thomas also claims that the State did not present any proof that the City of Camilla had a permit authorizing its use of a radar unit, as required by OCGA § 40-14-2. Our review of the transcripts, however, reveals that Thomas did not preserve this issue for review. Thomas raised the issue of whether the municipality had a certificate authorizing use of the radar unit at the suppression hearing, objecting to Officer Morris’s testimony that the municipality had proper authorization on the ground of the best evidence rule. When the judge neither sustained nor overruled his objection, and the State continued questioning the officer about his competence to operate a radar unit, Thomas did not seek further clarification from the court regarding his objection or renew his objection. At the end of the hearing, Thomas, in summarizing his contentions for the trial court regarding the illegality of the stop, asserted that the stop was illegal because the radar was used within 300 feet of a speed reduction sign; he did not urge lack of proper certification of the radar unit as a basis for his contention that the stop was illegal. At the bench trial, Thomas presented additional evidence in support of his contention that the stop was illegal because it was made within 300 feet of a speed limit reduction. He did not contend that the municipality did not have proper certification for operation of the radar unit. Given his apparent abandonment of this argument, we find that the issue has not been preserved for appeal. Norman v. State

Decided February 21, 2002

Gilbert J. Murrah, for appellant.

J. Brown Moseley, District Attorney, Ronald R. Parker, Assistant District Attorney, for appellee.

Judgment affirmed in part and reversed in part.

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

        Covrig v. Miller, 199 Ga. App. 864, 865 (1) (406 SE2d 239) (1991).

        Sparks v. State, 195 Ga. App. 589, 590 (394 SE2d 407) (1990).

        Green v. State, 260 Ga. 625 (398 SE2d 360) (1990).

        Thompson v. State, 243 Ga. App. 878, 881 (1) (534 SE2d 151) (2000).

        Stovall v. State, 251 Ga. App. 7, 10 (1) (553 SE2d 297) (2001).

        Norman v. State, 197 Ga. App. 333, 336 (398 SE2d 395) (1990).


text:
    A01A2099.
    JONES v. THE STATE.
    (560 SE2d 749)
   Blackburn, Chief Judge.

Following a bench trial, Brian Keith Jones appeals his convictions for trafficking in cocaine, possession of a firearm, and carrying a concealed weapon, contending that the trial court erred by denying his motion to suppress. For the reasons set forth below, we affirm.

On appeal from a denial of a motion to suppress, this Court must construe the evidence most favorably to uphold the ruling of the trial court. State v. Winnie. Furthermore, the trial court’s application of law to facts which are undisputed is subject to de novo review. Id.

Viewed in this light, the record shows that, on the evening of February 17, 2000, Officer Bearden and Officer Loudermilk were parked in their patrol vehicle on the side of 1-20. At approximately 10:00 p.m. that night, a car with no apparent tag driven by Mark Lynch passed them. Jones was riding as a passenger in Lynch’s car. The officers pulled out onto the interstate and began following Lynch’s car to investigate the tag situation. At that point, Lynch weaved across the centerline twice, and Officer Bearden decided to stop the car to investigate the tag and registration and to determine if Lynch was impaired.

After the stop, Officer Bearden approached Lynch, whom he characterized as being “intensely” nervous. Officer Bearden informed Lynch that he stopped him to investigate the tag on the car and to determine whether he had been drinking. Lynch, who denied having consumed any alcoholic beverages, gripped the steering wheel tightly and pushed himself deep into the driver’s seat. Officer Bearden testified that the level of nervousness displayed by Lynch exceeded that which was normal for a person stopped.

Shortly after approaching Lynch, Officer Bearden noticed the strong scent of several air fresheners located throughout the car. Officer Bearden testified that, at that point, he became wary that the car might contain contraband because of three factors: (1) Lynch’s erratic driving; (2) the use of air fresheners to mask the odor of illegal contraband; and (3) Lynch’s nervous behavior.

Officer Bearden requested Lynch’s license, and, after handing over his learner’s permit, Lynch informed the officer that Jones, the passenger, was the actual owner of the car. Officer Bearden then approached Jones and asked him for his driver’s license and proof of registration. Although Jones did not have proof of registration, he handed Bearden his driver’s license and explained that, because the car had recently been purchased, it had only a drive-out tag.

Officer Bearden next ran both driver’s licenses through his police computer. At that point, Officer Bearden determined that Jones’ license had been suspended. Bearden then approached Lynch, asked him to step out of the car, and contemporaneously asked him where he was going. Lynch responded that he and Jones were on their way to Birmingham, where they resided. After Lynch answered his question, Officer Bearden briefly patted him down and explained to him that he was giving him a warning citation and returned Lynch’s license. At the same time, Officer Bearden stated that he needed to talk to Jones for a moment.

Having learned that his license was suspended, Officer Bearden approached Jones again in order to return his paperwork and inform him of his license status. While doing so, Officer Bearden asked Jones where he and Lynch were going when they were stopped. Jones initially replied that he and Lynch were “just riding.” Officer Bearden asked the question a second time, and Jones responded that they were traveling to their cousin’s house and asked Bearden if they had already passed Thornton Road, clearly implying that was their destination. Officer Bearden next asked Jones to step out of the car and patted him down.

At that time, Officer Bearden informed Jones that he was about to let them go, but he wanted to ask a “quick question.” Officer Bearden then told Jones that he could not allow him or Lynch to drive the car, and he asked permission to search the car for drugs. Jones did not respond, and Officer Bearden told him that, although he and Lynch were free to leave, he was detaining the vehicle for a search by a drug dog. Approximately thirty minutes later, the canine unit arrived, and the subsequent search of the car revealed over 3,000 grams of cocaine, two revolvers, and a semi-automatic pistol.

Based on the discovery of this contraband, Jones was charged and convicted for trafficking in cocaine, possession of a firearm, and carrying a concealed weapon. Jones now contends that this conviction must be reversed because Officer Bearden violated his Fourth Amendment rights by detaining and questioning him after termination of the initial traffic stop. We disagree.

Jones does not question the efficacy of the initial stop, and, accordingly, we do not consider that issue here. Jones does, however, question the propriety of his detention and his car’s detention after Officer Bearden returned Lynch’s license to him and issued a warning. Jones argues that these latter acts ended the initial stop, and, at that point in time, Officer Bearden had no right to detain him any longer and ask him questions regarding contraband, a matter unrelated to either the drive-out tag or the earlier moving violation. The determination which must be made here, therefore, regards whether Officer Bearden’s questioning of Jones and the ultimate detention and search of his car were reasonable pursuant to the Fourth Amendment, under the facts of this case.

First, we must determine at what point the initial stop terminated. The record supports a finding that the initial stop had not terminated at the time that Officer Bearden issued a warning to Lynch and returned his license to him, contrary to Jones’ arguments. At that point, although Officer Bearden had concluded that Lynch was not impaired, and he had completed his investigation into the car’s drive-out tag, he had not returned Jones’ license to him or had the opportunity to discuss the driving situation with Jones. Necessarily, Officer Bearden had to discuss this situation with Jones because neither he nor Lynch could legally drive the car at that time. As such, the investigation continued.

As he was returning Jones’ paperwork, Officer Bearden asked Jones where he and Lynch were going and received a response directly in conflict with the one given by Lynch. Subsequent to this response, and given the fact that neither Jones nor Lynch could be permitted to drive the vehicle, Officer Bearden decided to question Jones about possible contraband in the vehicle which might be left on the roadway for some time and asked for consent to conduct a search.

The validity of an officer’s investigative conduct upon making a stop is determined by balancing the extent of the intrusion against the immediacy and importance of the interest in crime prevention or law enforcement which he seeks to advance. In striking this balance, we have held that traffic stops must be limited in time and scope and that police officers must limit their questions to those reasonably related to the circumstances that justified the initiation of the stop. If the officer questions and detains the suspect for other reasons, he exceeds the scope of permissible investigation unless he has reasonable suspicion of other criminal activity. Whether a given set of facts rises to the level of reasonable, articulable suspicion of criminal activity is a legal question.

(Footnotes omitted.) Bell v. State.

At the time that he decided to conduct a search of Jones’ car if the drug dog reacted, Officer Bearden realized that the vehicle could be on the public roadway for some time and was also aware that: (1) 1-20 is often used as a route to transport contraband; (2) Lynch was nervous after being stopped; (3) the car contained an unusual number of air fresheners (often associated with drug use); and (4) Jones and Lynch gave directly conflicting stories about their travel itinerary. Under the totality of the circumstances, the officer was authorized to detain Jones’ car. See, e.g., Almond v. State; Pitts v. State.

Upon stopping the car, the officer’s suspicions of illegal activity were aroused by the inconsistencies in the explanations given by [Jones] and [Lynch] concerning [their destination], and [Lynch’s] increasing nervousness. Under such circumstances, the officer’s suspicions were reasonable, and justified the brief investigative stop that grew out of the lawful traffic stop.

Roundtree v. State.

Contrary to Jones’ argument, it was not per se impermissible for Officer Bearden to ask him about his travel plans. Officer Bearden “merely asked these suspects about their travel itinerary in a manner which was not extensive or prolonged, and was not unconstitutionally intrusive when balanced against the widespread clear danger of drug peddling . . . via the roads of this state.” (Punctuation omitted.) Pitts, supra at 311 (2).

Decided February 21, 2002

Bruce S. Harvey, David S. West, for appellant.

David McDade, District Attorney, William H. McClain, Assistant District Attorney, for appellee.

Moreover, the fact remains that Officer Bearden did not detain Jones in this case. As neither Jones nor Lynch had a valid license to drive the car at that time, they were not free to drive the car from the scene, and the officers were free to call in the drug dog to check out this car on the side of a public roadway.

The trial court did not err in denying Jones’ motion to suppress.

Judgment affirmed.

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

        State v. Winnie, 242 Ga. App. 228, 229 (529 SE2d 215) (2000).

       It was ultimately determined that the car had a dealership “drive-out” tag.

       It is undisputed that this initial stop was valid.

        Bell v. State, 248 Ga. App. 254, 256-257 (546 SE2d 34) (2001).

        Almond v. State, 242 Ga. App. 650 (530 SE2d 750) (2000).

        Pitts v. State, 221 Ga. App. 309 (471 SE2d 270) (1996).

        Roundtree v. State, 213 Ga. App. 793, 794 (446 SE2d 204) (1994).


text:
    A01A2196.
    WAGNER v. THE STATE.
    (560 SE2d 754)
   Smith, Presiding Judge.

Clarence Wagner was indicted by a Fulton County grand jury for the offenses of rape, statutory rape, and aggravated child molestation. He was tried by a jury. The trial court directed a verdict on the child molestation charge at the close of the State’s case, and the jury found Wagner guilty of the remaining two counts. Following the denial of his amended motion for new trial, Wagner appeals from the judgment of conviction and sentence. He raises eight enumerations of error, challenging the admission of certain evidence, the trial court’s refusal to allow him to introduce evidence of prior false accusations by the victim or to impeach the victim’s testimony on cross-examination, the trial court’s excusing a juror for cause and failure to exclude a different juror for cause, and the trial court’s denial of his motion for mistrial based on juror misconduct. We find no reversible error, and we affirm.

Construed to support the jury’s verdict, the evidence presented at trial showed that the victim, who was 14 at the time, was living with her aunt when the incident occurred. Wagner, who was the victim’s cousin, and Deon Warner, her uncle, visited the home during the early morning hours of April 11, 1996. The victim testified that while she was speaking on the telephone in a bedroom, Wagner came in and lay down close to her on the bed, prompting her to move to another room so she could continue her telephone conversation in privacy. Wagner knocked on the door of that room and told her to follow bim downstairs so she could lock the door when he left. When she did so, however, Wagner grabbed the phone, pushed the victim into the room, and “snatched” off her shirt and her bra and then her jeans. When the victim began screaming, Wagner grabbed her under the arms and forced her into a different room. Although she told him she was “too young for that to happen to me,” and she was “screaming and hollering for” her uncle, he “slammed” her on the bed, penetrated her, and then hit her. When he finished, before leaving he told her “how sorry he was and that he was sick.” The victim told her uncle that Wagner had raped her, and her uncle called the police. The victim was taken to the hospital, where she was examined by a doctor. A rape kit was not performed, but the victim testified that hair and semen samples were collected.

Warner testified that Wagner had just been released from jail and he and Wagner had been out celebrating. They did not have a ride back to Warner’s home, so they decided to spend the night aWarner’s sister’s home, where the victim was staying. At about 5:00 a.m., the victim came running downstairs, “crying hysterically.” She reported that Wagner had raped her and confirmed upon questioning that he had penetrated her. He called the police, who responded and drove them to the hospital.

A City of Atlanta Police Department detective was called to investigate. He testified that the victim first appeared to be upset, somewhat confused, and reluctant to speak to him, but she later “opened up” and discussed the rape with him. After learning where Wagner was located, he obtained an arrest warrant, and Wagner was arrested.

1. Wagner challenges the admission of evidence placing his character in issue.

(a) He maintains that his right to due process of law under the Georgia and United States Constitutions was violated when the trial court allowed the State to introduce evidence of his previous conviction for aggravated assault as a similar transaction. He maintains it was not sufficiently similar because in the prior crime, the sexual assault was on an adult woman, whereas in the charged incident, the victim was a minor. The trial court “reluctantly” admitted this evidence to show Wagner’s bent of mind.

We find no error. “[I]n the area of sexual offenses, the admissibility of similar transaction evidence is liberally construed. [Cit.]” McBee v. State, 228 Ga. App. 16, 19 (1) (491 SE2d 97) (1997). In addition, when

forcible sexual assaults are involved, there is at least much sociological evidence to support the conclusion that this type of deviant sexual behavior is a sufficiently isolated abnormality so that proof of the propensity of the defendant to engage in it is at least admissible, and to this extent proof of the one tends to establish the other.

(Citations and punctuation omitted.) Id. at 18-19 (1). The crime need not be identical to the charged crime to be admissible. Brooks v. State, 230 Ga. App. 846, 847 (1) (498 SE2d 139) (1998). Here, the similar transaction involved a forcible sexual assault, as did the charged crime. And when the crimes are similar, the difference in the victims’ ages need not render the similar transaction inadmissible. See, e.g., Tucker v. State, 191 Ga. App. 648 (382 SE2d 425) (1989) (similar transaction admitted even though victim of prior offense was 24 and charged crime involved 12-year-old). Here, the similar transaction and the charged crime were sufficiently similar. Both occurred in the early morning hours in a bedroom of a residence where the accused had been invited, and both involved forcible sexual assault. We find no error in the admission of the prior crime.

(b) Wagner contends that his right to due process of law was also violated when the court allowed the State to present evidence of the date he was released from prison on his prior conviction for aggravated assault. The State argued at trial that this evidence was part of the similar transaction and that it was relevant to show bent of mind, course of conduct, and motive.

Wagner argues that since he made no reference to his prior incarceration and it was not relevant to his motive, intent, or course of conduct, it was inadmissible; the fact that he had just been released from prison had nothing to do with these things. Unlike the situation in Greer v. State, 199 Ga. App. 106 (403 SE2d 825) (1991), where the accused stated that he was on probation, just got out of prison, and would not have committed the crime, id. at 107 (1), Wagner argues that he did not use his release from prison as part of his defense and it had no relevance to bent of mind or course of conduct.

But the challenged evidence was cumulative of other evidence, since the State introduced a certified copy of the prior conviction, as well as the testimony of the victim of the prior aggravated assault. We have determined that this testimony was properly admitted. In addition, Warner testified that he and Wagner had been out celebrating Wagner’s release from prison. Wagner did not object to that testimony. Even assuming, therefore, that admission was error, it was harmless. Jowers v. State, 245 Ga. App. 773, 776 (6) (538 SE2d 853) (2000).

(c) Citing Eiland v. State, 213 Ga. App. 838 (445 SE2d 765) (1994), Wagner complains that the trial court allowed the indictment in the prior crime to be admitted into evidence even though he pled guilty to a lesser offense. But in Eiland, the defendant pled guilty to two counts of child molestation and then withdrew his plea, later pleading guilty to two counts of sexual battery. The original indictment, showing the original guilty plea, was later admitted into evidence as a similar transaction in Eiland’s unrelated subsequent trial on three counts of child molestation, notwithstanding a judge’s previous ruling that the indictment must be redacted. This court held that this was error because the indictment showed that the defendant had pled guilty to child molestation, which was not true, and child molestation involves a different intent than sexual battery. Id. at 839. Here, the offense of sexual battery, to which Wagner pled, involves the intent to rape, with which Wagner was charged in the prior crime. In addition, in Eiland no other evidence of the prior crime was admitted. Here, the State presented the testimony of the victim of the similar transaction, and her testimony supported the charge in the indictment. Under these circumstances, it was not error to admit the prior indictment.

2. Wagner contends the trial court erred in refusing to allow him to present evidence that the victim made a false allegation against another person. Wagner sought to show that the victim had also accused her grandfather of molesting her. Evidence of prior false accusations by a rape victim does not fall within the proscription of the rape shield law, but before admitting such evidence the trial court must determine outside the presence of the jury that a reasonable probability exists that such accusations were false. Strickland v. State, 205 Ga. App. 473 (422 SE2d 312) (1992). The court held a hearing on this matter and determined that a reasonable probability did not exist that the accusation against the victim’s grandfather was false.

At the hearing, both the grandfather and a Department of Family & Children Services (DFACS) worker testified. A pending indictment existed against the grandfather, accusing him of child molestation and aggravated sexual battery against the victim. The grandfather was therefore given the Miranda warnings, and he testified that the charges against him were not true and that his granddaughter had fabricated them because she was angry at him. He testified that the victim had made up lies against other people when she was angry, including one which caused her mother to lose custody of her children. He testified before the jury that the victim’s reputation for truthfulness was “bad” and that she should not be believed under oath. The caseworker testified that no physical evidence existed of molestation, that absence of such evidence is usual in a case involving fondling, and that because of the lack of such evidence DFACS had closed the case against the grandfather as unconfirmed.

This evidence did not show that the victim’s accusation against her grandfather was false. The grandfather simply gave his opinion that it was false. This unsupported testimony is insufficient. Gilmer v. State, 234 Ga. App. 309, 310 (2) (506 SE2d 452) (1998). The caseworker’s testimony similarly did not show that the allegation was false; it showed merely that DFACS could not confirm the allegation with physical evidence, which was not unusual in that type of case. Regardless of this testimony, an indictment remained pending against the grandfather. Contrary to Wagner’s suggestion, the fact that an accused states that the accusation against him is false is hardly evidence sufficient to raise a “reasonable probability” of falsity. The trial court did not err.

3. Wagner also asserts that the trial court erred in refusing to allow him to impeach the victim’s testimony on cross-examination or to offer substantive evidence to impeach her. The victim testified on direct examination that she told Wagner she was “too young for that to happen to me.” Defense counsel asked the victim to explain this statement, and the State interposed an objection based upon the rape shield statute, OCGA § 24-2-3. The trial court sustained the objection. Wagner moved for mistrial, which was denied. Defense counsel made an offer of proof consisting of his own statement that the defense and the State both had records indicating that the victim had been sexually active.

Relying on Jones v. State, 190 Ga. App. 416 (379 SE2d 189) (1989), he argues that since the import of her testimony was that she was too young to engage in sex, he had the right to prove that she had already done so, as a matter of impeachment. In Jones, the defense to the rape charge was consent. The defendant sought to show that the victim was not a virgin, as she had indicated to the examining physician. The trial court prohibited this line of questioning based upon the rape shield law because the victim had not testified to her virginity or referred to her statement to the doctor. This court affirmed the trial court’s prohibition but said: “Had the victim in fact represented at trial that she was a virgin prior to her encounter with defendant, evidence of her prior sexual activity would have been admissible for impeachment. [Cit.]” Id. at 417 (1). This is consistent with established law that the rape shield law will not be applied to permit perjured testimony. When a victim voluntarily testifies to her lack of sexual experience, she waives her protection under the shield and may be impeached with proof of prior sexual acts. Villafranco v. State, 252 Ga. 188, 194-195 (2) (313 SE2d 469) (1984).

Had the offer of proof included a question put to the victim asking what she meant by her statement, and had the victim responded that she meant she was too young to have sex, we would be inclined to agree with Wagner. But her statement was ambiguous, at best. As in Jones, supra, the victim did not testify directly as to her virginity, and we conclude that the trial court did not abuse its discretion in sustaining the objection and denying the motion for mistrial.

4. Wagner claims error in the denial of his motion for mistrial made on the ground of juror misconduct. This refers to an incident that occurred during jury deliberations, when some of the jurors informed the court that one juror had driven to the neighborhood where the crime took place. The juror in question testified that he drove through the area without stopping, “just on plain curiosity,” and then told the other jurors his impression of the area. He told them it was a low-income housing project, and if you slowed your car people would approach and ask you what you need, at least implying prostitution and drugs.

Upon questioning by the court, that juror indicated that his trip to the scene had been made because he had been familiar with the area approximately ten or fifteen years ago, and he wanted to see if it had changed. He testified his visit would not affect any decision he would make as a juror in the case. In fact, at that point the jury had already reached a verdict as to one count of the indictment. The juror did indicate that he told other jurors that he drove through the area, but he said he had not “discussed” it. He informed the trial court that the “only thing we talked about was the evidence that was given in this court.” The remaining jurors were then questioned extensively. Two jurors indicated they felt that the juror’s observation of the scene had some influence on that juror’s thinking about the case, but the overwhelming impression left by the jurors was that they had admonished that juror for doing something they had been instructed not to do and that the information had not and would not play any part in their decision in the case.

In considering possible juror misconduct, the trial court must consider whether a reasonable possibility exists that the improper action contributed to the jury’s verdict. Brooks v. State, 265 Ga. 548, 550 (5) (458 SE2d 349) (1995). We agree with the State that the juror’s conduct in this case, although unfortunate, did not necessitate a new trial. First, the remaining jurors were questioned carefully, and the trial court was satisfied that they were not influenced.

Second, the cases cited by Wagner, such as Bobo v. State, 254 Ga. 146 (327 SE2d 208) (1985), involved issues that could be influenced by a view of the scene, such as whether adequate lighting existed or the dimensions of the store in which the crime took place. Here, in contrast, since the charged crime took place inside the victim’s home, it is difficult to discern the harm that could be occasioned by a juror’s observations of the neighborhood. Regardless of the character of the surrounding area, the issue for decision was whether the victim had been raped. Even if error occurred, therefore, it was harmless.

5. In his last two enumerations of error, Wagner contends the trial court abused its discretion during jury selection by excusing one juror for cause and failing to strike another for cause.

(a) The juror who was stricken for cause was a convicted felon who had completed his sentence under the First Offender Act and was discharged. At the beginning of voir dire, the jurors were asked as a group whether any of them had been convicted of a crime or knew anyone who had been convicted. The juror in question did not respond. He further failed to disclose his conviction upon individual questioning. When this juror’s conviction for drug possession came to the court’s attention, the juror admitted the conviction. He was, in fact, prosecuted by the same prosecutor’s office involved in the trial. The juror also admitted he had a friend who was a convicted felon but had not mentioned that fact, either.

Wagner argues that this juror should not have been excused for cause because if he was discharged under the First Offender Act, he had no felony conviction. OCGA § 42-8-62; see Gunter v. State, 182 Ga. App. 548 (356 SE2d 276) (1987). A juror’s failure to respond truthfully to a question may be insufficient to disqualify him or her if that failure is the result of an honest mistake. See Gainesville Radiology Group v. Hummel, 263 Ga. 91, 94 (428 SE2d 786) (1993). We need not attempt to determine whether this juror’s failure to respond to the question of whether any jurors had been convicted of a crime was a correct response, under the law, because it is clear that the juror was simply untruthful in concealing the fact that he had a friend who had been convicted of murder. The subject matter of this particular failure to respond truthfully suggests possible bias.

“Moreover, a defendant has no vested interest in a particular juror but rather is entitled only to a competent and impartial jury. Thus, even assuming that the trial court wrongfully dismissed the prospective juror, the error affords no ground for appeal if, in the end, [the defendant’s] case was heard by a competent and unbiased jury.” (Citations omitted.) Scott v. State, 219 Ga. App. 906, 907 (1) (467 SE2d 348) (1996).

(b) Wagner asserts that legal cause existed to strike another juror and the trial court abused its discretion for not striking him. This juror informed the court during voir dire that he was in the process of selling his home and moving to a new home. He felt that given this personal business, he could not concentrate on the trial. He also admitted prejudice against the judicial system because a family member had been murdered by a repeat offender.

The juror himself, however, characterized his housing concern as “trivial,” and disclosed that he felt the trial was “important also.” Upon further questioning, the juror indicated that he had previously served on a jury that reached a verdict in a criminal trial and that he could listen to the evidence and set any possible bias aside. This juror was therefore rehabilitated.

Decided February 21, 2002.

Zell & Zell, Rodney S. Zell, for appellant.

Paul L. Howard, Jr., District Attorney, Anne E. Green, Amira S. AbuBakr, Assistant District Attorneys, for appellee.

Wagner cites this court’s recent decision in Walls v. Kim, 250 Ga. App. 259 (549 SE2d 797) (2001), in support of his argument that “rehabilitating” jurors “has become something of á talisman relied upon by trial and appellate judges to justify retaining biased jurors.” Id. While we certainly agree that judges should err on the side of caution by dismissing biased jurors, significant differences in the bias involved in the Walls case and this one persuade us that the trial judge in this case did not abuse his discretion in failing to excuse him for cause. In Walls, a wrongful death action against a doctor, the potential juror was a nurse who had worked with the defendant. She stated her hope that “the case would [come] out in favor of” the doctor, id. at 261, although she also denied a bias, but the judge refused to excuse her for cause. That juror was objectionable because of her personal interest in the case and personal relationship with one of the parties. Regardless of any claim of impartiality such a juror might make, ordinary human experience teaches that some bias would enter the deliberative process.

No such personal interest was evident in the juror challenged by Wagner. Most jurors have personal business that will be impeded by serving on a jury, yet most realize, as did this juror, the importance of such service. Although negative feelings about “the judicial system” should dictate caution in qualifying a juror, such feelings would be directed against the State as well as the defendant. We conclude, therefore, that the trial court did not abuse its discretion in declining to strike this juror for cause.

Judgment affirmed.

Barnes and Phipps, JJ, concur.


text:
    A01A2293.
    VONSLEP v. THE STATE.
    (560 SE2d 752)
   Blackburn, Chief Judge.

Phyliss A. Vonslep appeals the denial of her motion for discharge and acquittal, claiming that the trial court erred in denying the motion: (1) because her case was never called, reached, or scheduled during the two terms of court during which her demand for speedy trial was pending; (2) by characterizing her counsel’s signing of an acknowledgment of on-call status and notice of new court date as an affirmative consent to reset her case outside the term of court and a waiver of her speedy trial demand; and (3) by requiring that she stand ready for trial for the entire two terms of court during which the demand was pending without filing any leaves or conflicts pursuant to Uniform Superior Court Rule 17.1. For the reasons set forth below, we affirm.

1. Appellant first argues that the trial court erred in denying her motion for discharge and acquittal because her case was never called, reached, or scheduled for trial during the entire two terms of court during which her demand for speedy trial was pending. OCGA § 17-7-170 (a) allows a defendant to “enter a demand for trial at the court term at which the indictment or accusation is filed or at the next succeeding regular court term thereafter.” OCGA § 17-7-170 (b) further provides that “[i]f the person is not tried when the demand is made or at the next succeeding regular court term thereafter, provided at both court terms there were juries impaneled and qualified to try him, he shall be absolutely discharged and acquitted of the offense charged in the indictment or accusation.” The right to automatic discharge is not, however, absolute.

The defendant may waive his right to such automatic discharge by some action on his part or on the part of his counsel. Any affirmative action of the defendant which results in a continuance of the case, or a failure to try it within the time fixed by the statute after the filing of a demand, has the effect of tolling the time. A waiver of the demand would result from a continuance granted on the motion of the accused, or from any other act on his part showing affirmatively that he consented to passing the case until a subsequent term.

(Punctuation omitted; emphasis in original.) Ballew v. State.

Vonslep was issued citations for improper turn and for driving under the influence on August 25, 2000. She appeared in Division II of Cobb County State Court on September 28, 2000, pled not guilty, and requested a jury trial. Because Division II does not impanel juries, Vonslep was assigned a case number and given a new arraignment date of November 16, 2000, in Division I of Cobb County State Court, which impanels juries. On October 20, 2000, she filed a demand for jury trial and a demand for a speedy trial pursuant to OCGA § 17-7-170. Her filing of the demand for speedy trial required that she be tried either in the September Term, which ran from September 11, 2000, to November 12, 2000, or in the November Term, which ran from November 13, 2000, to January 7, 2001, provided that neither she nor her counsel had acted in any way which would show affirmatively that she consented to passing the case until a subsequent term. On that same date, Vonslep’s counsel also filed a notice of leave of absence. Vonslep appeared for arraignment on November 16, 2000, and pled not guilty. Her case was set for a motions hearing on January 3, 2001, and for calendar call on January 29, 2001, her attorney signing the waiver of formal arraignment and notice of return. Vonslep’s counsel requested a continuance from the January 3, 2001 criminal motions calendar, reserving all motions until the time of trial.

On March 12, 2001, Vonslep filed a motion for discharge and acquittal. A hearing was held on the motion on April 30, 2001. Following that hearing, the court issued an order denying the motion. The court found that counsel’s request for leave of absence, which reduced his availability for trial to eight days in the two terms, “completely eroded the State’s ability to call in Defendant’s case for trial within the two terms available” and thus waived Vonslep’s right to automatic discharge and acquittal. We agree, and the trial court did not err in denying the motion. See State v. Davis; Jones v. State.

2. Vonslep also argues that the trial court erred in denying her motion on the ground that her right to automatic discharge and acquittal was waived by counsel’s consent to reset the trial outside the term of court. The trial court held that by placing the case in on-call status, announcing ready for trial, and agreeing to reset new court dates during the period after the speedy trial demand had expired, Vonslep waived her right to automatic discharge and acquittal. We found in Division 1 that counsel’s actions during the two terms constituted evidence of an intent to avoid trial. “A trial court’s judgment, right for any reason, will be affirmed. [Cit.]” Gwinnett Place Assoc. v. Pharr Engineering. Because we hold that the trial court did not err in denying Vonslep’s motion for discharge and acquittal on that ground, “we need not consider [her] other enumeration addressed to the alternative ground relied upon by the trial court.” Id.

3. Finally, Vonslep argues that the trial court erred in denying her motion for discharge and acquittal by requiring that she stand ready for trial for the entire two terms of court during which the demand was pending without filing any leaves or conflicts pursuant to USCR 17.1. This enumeration of error concerns a comment made by the trial court at the hearing on Vonslep’s motion. The trial court clearly set forth in its order the basis for its denial of Vonslep’s motion, and the reasoning in the statement about which she complains neither found itself into the order of the court nor formed a basis for the court’s denial of the motion. For this reason, and for the reason set forth in Division 2, this enumeration of error is without merit.

Decided February 21, 2002.

George A. Stein, Margaret A. Reeves, for appellant.

Barry E. Morgan, Solicitor-General, Jessica K. Moss, Sandra G. Dawson, Assistant Solicitors-General, for appellee.

Judgment affirmed.

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

        Ballew v. State, 211 Ga. App. 672, 673 (440 SE2d 76) (1994).

        State v. Davis, 243 Ga. App. 867, 868 (534 SE2d 159) (2000).

       Jones v. State, 250 Ga. App. 829 (553 SE2d 24) (2001).

        Gwinnett Place Assoc. v. Pharr Engineering, 215 Ga. App. 53, 56 (2) (449 SE2d 889) (1994).


text:
    A01A2375.
    KAY et al. v. DAVIS et al.
    (560 SE2d 761)
   Blackburn, Chief Judge.

In this case regarding the alleged failure to impose the requirements of a zoning ordinance, Dwight and Nancy Kay appeal the trial court’s grant of summary judgment to the Mayor and City Council of Blue Ridge (collectively referred to herein as the “City”) contending that the trial court erred by finding that: (1) the Kays had no standing to bring suit; (2) the Kays’ ante litem notice was insufficient; and (3) the City was not responsible for a continuing nuisance created by the City’s failure to require a 15-foot buffer zone between the Kays’ property and the property of certain adjoining landowners. Because, under the facts of this case, no 15-foot buffer zone is required by the applicable ordinance, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Matjoulis v. Integon Gen. Ins. Corp.

Viewed in this light, the record shows that Bobby Davis and William J. Holt are the owners of approximately sixteen acres of land, six acres of which lie within the City of Blue Ridge and are adjacent to the Kays’ home. While the Kays’ property is located on the side of a mountain lot, the Davis and Holt property is located in the valley below. Both the Kays’ property and the adjacent six acres held by Davis and Holt are zoned “R-A,” for residential or agricultural use.

In July 1999, Davis and Holt began grading their property, which the Kays contend was intended to facilitate the use of the land for improper commercial purposes. The Kays maintain that, during this grading process, their home was damaged and foliage was destroyed. For example, although the Kays’ home was not originally visible from the highway, it became visible after the grading began. In addition, the Kays contend that, contrary to the zoning ordinances of the City of Blue Ridge, Davis and Holt failed to establish a 15-foot buffer zone between their alleged commercial property and the Kays’ residential property.

In early September 1999, Bill Sowers, the city clerk of Blue Ridge, was notified by a staff planner for the City about the grading that was taking place on the Davis and Holt property. Thereafter, Sowers, along with the mayor and the City’s building inspector, traveled to the site and advised Davis and Holt that they would need a grading permit to continue their work within City limits. When Sowers asked why the property was being graded, Davis and Holt responded that they intended to build apartments on the lot. Sowers then informed Davis and Holt that apartments would not be permitted on the property because the highest density allowed in a plot zoned R-A would be duplexes. At that time, Davis and Holt indicated that they would build duplexes on the property pursuant to the zoning limitations, although they intended to apply for rezoning for commercial use. Sowers then informed Davis and Holt that, if they were ultimately successful in getting the property rezoned for commercial use, they would have to maintain a 15-foot buffer between the commercial area and the adjoining residential area, as required by City zoning ordinances.

On September 3, 1999, in response to a request by Davis and Holt, the City granted a permit to grade the property under development for residential use only. On September 9, 1999, Davis and Holt filed an application with the City to have the zoning of their property changed from residential to commercial, and, on October 8, 1999, the Kays sent an ante litem notice to the City in which they demanded that “the Mayor and Council of the City of Blue Ridge . . . enforce the zoning ordinance of the City of Blue Ridge and . . . take whatever steps might be necessary to replace the fifteen (15) foot buffer area called for by the zoning ordinance of the City of Blue Ridge or to pay damages in the amount of $250,000.”

Then, on October 19, 1999, the planning commission for the City recommended denial of the rezoning application submitted by Davis and Holt. On November 9, 1999, the mayor and city council voted to deny the application; however, ten days later the mayor changed his mind and decided to veto the denial. Following this veto, the city council discovered that rezoning of the property to a commercial use would require major amendments to the Future Land Use Plan employed by the City of Blue Ridge, and it voted not to undertake any such amendments. As a result, the rezoning application was effectively denied, and the property remains residential. Davis and Holt have made no further applications for rezoning, and at no time has the property been used for commercial uses.

Throughout this litigation, whether in terms of general damages, punitive damages, or public nuisance, the claim brought by the Kays against the City has been that the City failed to require Davis and Holt to provide them with a 15-foot buffer zone required by the commercial zoning ordinance. Pretermitting the issue of the Kays’ standing and the sufficiency of their ante litem notice, there is no evidence that the City has acted in such a way to deprive them of a 15-foot buffer pursuant to the zoning ordinance. All of the Kays’ claims are premised on the argument that, prior to the grading of the property owned by Davis and Holt, the City was required to rezone it as commercial and enforce the development of a 15-foot buffer zone. The problem with the Kays’ claims, however, is that the property adjacent to them has never been used commercially, and, indeed, when Davis and Holt applied to use the property commercially, their request was ultimately ineffectual. In addition, prior to applying for rezoning, Davis and Holt informed the City that they would construct duplexes on the property in accordance with the residential zoning already in place.

Therefore, at all times during the development of this litigation, the adjoining property to the Kays’ home has remained a residential property, and, pursuant to the ordinance of the City, no 15-foot buffer is required between two residential lots. See Article V of the City of Blue Ridge zoning ordinances. As such, although the Kays may have some recourse against Davis and Holt for improper grading and resulting damage to their home, they cannot hold the City liable for not enforcing the maintenance of a 15-foot buffer zone it simply did not have to provide.

Decided February 21, 2002.

Ray & McKinney, Robert M. Ray, Jr., for appellants.

Holland & Knight, Sara L. Doyle, Laurel E. Henderson, for appellees.

Judgment affirmed.

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

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       The remaining ten acres of the Davis and Holt property lie within unincorporated Fannin County and are not at issue herein.

       The Kays allege that the property was intended to be used for an automobile showroom, a strip mall, or a Home Depot store.

       Article IX, Section E of the zoning ordinances for the City of Blue Ridge provides: Where a “C-2” commercial district abuts any “R” residential district or where a commercial use adjoins a conforming residential use or property, the owner of the commercial property shall provide a buffer area of at least 15 feet in depth as provided in Article XII, Section A along the abutting side and/or rear property line.

       Davis and Holt had previously obtained a grading permit in Fannin County on August 9, 1999.

       A buffer zone may be required if one of the lots is being used as a campground, but that is not the case here.