text:
    A01A1784, A01A1785.
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. VAUGHN et al.; and vice versa.
    (558 SE2d 769)
   Johnson, Presiding Judge.

Thirteen-year-old Carolyn Vaughn was struck by a pickup truck as she crossed a highway to board a school bus operated by the Coffee County Board of Education. She and her parents sued the truck driver, the school bus driver, and the Board of Education. The Vaughns served State Farm Mutual Automobile Insurance Company as the school board’s uninsured motorist coverage carrier. State Farm responded to the complaint arguing, among other things, that uninsured motorist coverage would not be provided because Carolyn Vaughn was not an insured given the facts of this case. State Farm moved for summary judgment, contending that the only issue is whether Carolyn Vaughn was an occupant of the insured vehicle (the school bus) at the time of the accident, thereby triggering the policy’s uninsured motorist provision. The Vaughns moved for partial summary judgment on the same issue, urging that because Carolyn Vaughn was using the school bus when she was struck by the uninsured driver, the incident comes within the policy’s uninsured motorist coverage provision. The trial court denied the motions. Both parties filed applications for interlocutory appeals, which we granted.

The relevant facts are undisputed. Carolyn Vaughn and her brother were waiting for the school bus near their home. The children stood on the eastbound side of the Georgia 206 Connector, a two-lane road with vehicles traveling east and west. The school bus, which was traveling west, activated its flashing lights and stop arm and then stopped directly across from the children. The bus driver had previously instructed the children to stand on the eastbound side of the road and wait for her to motion for them to cross. They waited for the bus driver’s signal, and when the driver motioned for them to do so, the children began to cross the eastbound lane. Just then, a pickup truck traveling behind the school bus drove into the eastbound lane to pass the bus and struck Carolyn Vaughn. The truck driver was underinsured.

Case No. A01A1784

1. State Farm contends that the trial court erred in denying its motion for summary judgment. According to State Farm, the insuranee policy provides uninsured motorist protection only to persons occupying the insured vehicle, and Carolyn Vaughn was not occupying the bus at the time of the accident. We are not persuaded by State Farm’s argument.

The insurance policy at issue defines “insured” as a person occupying the insured vehicle and defines “occupying” as “in, on, entering or alighting from” the vehicle. For purposes of uninsured motorist coverage, however, the uninsured motorist statute provides that an insured is anyone who, with the insured’s consent, uses an insured vehicle. In this case, the policy’s definition of an insured as someone “in, on, entering or alighting from” a vehicle is more restrictive than the statute’s definition of an insured as someone who uses a vehicle. Where there is a conflict in an insurance policy and the uninsured motorist statute, the statute controls. Therefore, the statutory definition of insured (i.e., a person who uses an insured vehicle) controls.

The appellate courts of this state have adopted a liberal definition of the term “use” as contained in the uninsured motorist statute. As to the meaning of “use,” the question is whether the injury originated from, had its origin in, grew out of, or flowed from the use of the vehicle. The “use” of a vehicle extends beyond actual physical contact and includes, to some extent, the process of loading and unloading a school bus. Whether a school bus is being “used” in loading and unloading children is dependent to a great extent upon the circumstances of the case.

In Ga. Farm &c. Ins. Co. v. Greene, this Court ruled that a child who had exited a school bus and was crossing the street to his house was “using” the school bus for purposes of an insurance policy. We held that “use” of a school bus includes transportation of children to and from school and the unloading of the school bus. We added that such unloading encompasses not only depositing children outside the bus, but assuring that they reach a place of safety; reaching a place of safety may include crossing a street.

In Roberts, the Supreme Court approved the holding in Greene, citing the fact that the school bus was, “in essence, ‘standing guard with its lights flashing, its stop signals on and all visual signals functioning’ with the disembarking children ‘under its protection.’ ” The Roberts court noted that in Greene, the bus was still being utilized by the children crossing the street upon disembarking. It added that the school bus, which was stopped and had its lights flashing, was still operating as a school bus in relation to the child when she got off the bus and crossed the road.

In this case, when the bus driver stopped the bus so that the Vaughn children could board, the lights on the bus were flashing, and the driver had extended the stop arm from the side of the bus and signaled the children to cross the road. Use of the school bus in this case involved the crossing of the road, a possibility that the parties to the insurance contract certainly must have contemplated. Inasmuch as Carolyn Vaughn was using the school bus at the time the accident occurred, and the uninsured motorist statute requires coverage where a person is using the insured vehicle, the trial court correctly denied State Farm’s motion for summary judgment.

Case No. A01A1785

2. Based on the foregoing, the Vaughns were entitled to judgment as a matter of law on the issue of whether Carolyn Vaughn is an insured within the meaning of the uninsured motorist statute. Therefore, the trial court erred in denying their motion for summary judgment on this issue. We note that because no other liability or coverage issues were raised in the motions for summary judgment, we do not decide any other issues raised in the underlying case at this time.

Judgment affirmed in Case No. A01A1784. Judgment reversed in Case No. A01A1785.

Ruffin and Ellington, JJ., concur.

Decided January 10, 2002.

Sims, Fleming & Spurlin, John C. Spurlin, for appellant.

Berrien L. Sutton, for appellees.

       OCGA § 33-7-11 (b) (1) (B).

        Northbrook Property &c. Ins. Co. v. Merchant, 215 Ga. App. 273, 274 (1) (450 SE2d 425) (1994); Hartford Accident &c. Co. v. Booker, 140 Ga. App. 3, 4 (1) (230 SE2d 70) (1976).

        Northbrook Property, supra.

        Atlanta Postal Credit Union v. Intl. Indem. Co., 228 Ga. App. 887, 890 (1) (a) (494 SE2d 348) (1997).

        Northbrook Property, supra.

       See Cawthon v. Waco Fire &c. Ins. Co., 183 Ga. App. 238, 241 (358 SE2d 615) (1987) (loading of children is included in the definition of “use” of a school bus, though independent, voluntary actions taken by a school child cannot, alone, initiate the loading procedure). Compare Brock v. Sumter County School Bd., 246 Ga. App. 815, 818 (1) (542 SE2d 547) (2000) (injured child’s actions did not involve “use” of the school bus when she acted contrary to the driver’s and her mother’s instructions by suddenly entering the road while waiting at bus stop).

        Roberts v. Burke County School Dist., 267 Ga. 665, 667 (482 SE2d 283) (1997).

       174 Ga. App. 120 (329 SE2d 204) (1985) (physical precedent only).

       Id.

       id.

       Supra.

       Id.

       Id.

       See Atlanta Postal Credit Union, supra (in defining the word “use” in connection with the uninsured motorist statute, we must look to the contemplation of the parties in entering into the insurance contract and consider how the vehicle would be used in the business’ operation).


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A01A2151.
    WALLACE v. THE STATE.
    (558 SE2d 773)
   Ruffin, Judge.

Thomas Wallace was charged with four counts of statutory rape and one count of child molestation. The jury found Wallace guilty of child molestation, but was unable to reach a verdict on the remaining counts, and the trial court declared a mistrial as to those charges. On appeal, Wallace argues that the trial court erred in failing to direct a verdict on all counts and in admitting his custodial statement into evidence. Wallace also asserts that he received ineffective assistance of counsel. Wallace’s assertions lack merit, and we affirm.

1. In two enumerations of error, Wallace asserts that the trial court erred in failing to direct a verdict on the child molestation count and the statutory rape charges. In reviewing the denial of a motion for directed verdict, the standard is the same as that for reviewing the sufficiency of the evidence, in which

we view the evidence in the light most favorable to the jury’s verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Conflicts in the testimony of the witnesses, including the State’s witnesses, are a matter of credibility for the jury to resolve.

So viewed, the evidence shows that on August 22, 1996, Detective Tovey of the Columbus Police Department was dispatched to a doctor’s office to interview a pregnant 13-year-old girl. Dr. Melton Strozier, a psychologist, also interviewed the girl. According to Dr. Strozier, the girl told him that Wallace, who was her step-grandfather, began molesting her in 1995. Initially, Wallace would come into the victim’s bedroom at night, get in bed with her, and touch her breasts and pubic area. Wallace subsequently began to take her hand, place it on his penis, and have her masturbate him. On later occasions, Wallace asked the victim to perform oral sex, but she refused. Eventually, the molestation escalated to include intercourse, which, according to the victim, resulted in her pregnancy. When the victim was asked if she had ever had sexual intercourse with anyone else, she responded negatively.

Wallace was arrested on charges of child molestation. Tovey took Wallace to the police station, went over his Miranda rights with him, and asked him to sign a waiver of those rights, which he did. Tovey then took a statement from Wallace, who denied molesting the victim. According to Tovey, she believed that Wallace might respond better to a male interviewer, and she asked Lieutenant Randy Hart to question the suspect. Tovey left the interview room and went into an observation room. A few moments later, Hart entered the room to interview Wallace. During the interview, Wallace stated that on one occasion he went into the victim’s room to turn off her television and she reached out and fondled his penis before pulling him on top of her in the bed.

During the trial, the victim testified that on multiple occasions, Wallace entered her bedroom during the night and “touched” her. The victim also testified that Wallace “tried to stick his penis in [her],” but was unsuccessful. When questioned further about her understanding of intercourse, the victim acknowledged that her step-grandfather’s penis had touched her vagina.

(a) Wallace contends that the trial court erred in failing to direct a verdict on the child molestation charge. According to Wallace, the State failed to introduce any evidence “as to when the molestation occurred.” We disagree.

The indictment charged Wallace with the offense of child molestation “between April-July, 1996.” As a general rule, “[w]here the exact date is not stated as a material allegation of the time of commission of the offense in the indictment, it may be proved as of any time within the statute of limitations.” Here, the date was not stated as a material element of the offense charged, and the State was not required to prove the crime occurred on a date certain. Tovey testified that, when she interviewed the victim on August 22, 1996, the victim stated that the molestation began the year before, which would have been 1995, and continued through the spring or summer of 1996. Thus, the trial court was not required to direct a verdict on this count as there was sufficient evidence that the offense took place within the applicable statute of limitation.

(b) Wallace also argues that the trial court erred in failing to direct a verdict on the statutory rape charges because there was insufficient evidence of penetration. Although penetration is an essential element of the crime of rape, it may be slight. Moreover, such penetration “may be proved by indirect or circumstantial evidence.”

In this case, the victim equivocated on the stand regarding whether or not Wallace succeeded in his attempts to commit statutory rape. We nonetheless find the evidence sufficient. Both the investigating officer and psychologist testified that, during their first interview of the victim, she acknowledged that Wallace had had intercourse with her. Additionally, the evidence shows that the victim was pregnant and she denied sexual relations with anyone else, which constitute compelling circumstantial evidence of penetration. It follows that the trial court did not err in failing to direct a verdict on this count.

2. Wallace asserts that the trial court erred in denying his motion to suppress the statement he gave to police. Wallace maintains that the statement should have been suppressed because Hart failed to remind him of his Miranda rights prior to interviewing him.

Contrary to Wallace’s contention, Hart was not required to remind him of his rights. It is true that, once a defendant has been informed of his Miranda rights, he should be reminded of those rights “prior to each subsequent interrogation.” If, however, one investigating officer is replaced by another with no significant lapse in time, it is not considered a “subsequent interrogation,” but a continuation of the original interrogation. And, under these circumstances, the first explanation of Miranda rights is sufficient.

3. Wallace contends that he received ineffective assistance of counsel based upon his trial attorney’s failure to file a demurrer to the indictment, which Wallace claims was imperfect. Wallace’s claim fails. It is well settled that, to establish a claim of ineffective assistance, a defendant must demonstrate both that his attorney’s performance was deficient and that such deficiency prejudiced his defense. Pretermitting whether Wallace is able to demonstrate deficiency, he is unable to establish prejudice.

Decided January 10, 2002.

John R. Mobley II, for appellant.

J. Gray Conger, District Attorney, Melvin E. Hyde, Jr., Assistant District Attorney, for appellee.

A defendant is entitled to be tried on an indictment that is perfect in form. And, if an indictment is imperfect, a defendant may file a special demurrer challenging the form of the indictment. If no special demurrer is filed, any error in the indictment’s form is waived. If the demurrer is granted, the trial court quashes the indictment. However, the quashing of an indictment merely bars trial on the flawed indictment; it does not bar the State from reindicting the defendant. Thus, even if Wallace’s attorney had filed a demurrer, it would not have prevented the State from reindicting and trying Wallace. And Wallace does not argue that the imperfect indictment prejudiced his defense in any way. Under these circumstances, Wallace has failed to show that he was prejudiced by his attorney’s failure to file such demurrer.

4. In his final enumeration of error, Wallace challenges the sufficiency of the evidence. For the reasons stated in Division 1, this challenge is also meritless.

Judgment affirmed.

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

       (Punctuation omitted.) Lewis v. State, 247 Ga. App. 808, 809 (1) (545 SE2d 381) (2001).

       (Punctuation omitted.) Price v. State, 223 Ga. App. 185, 187 (4) (477 SE2d 353) (1996).

       See Gentry v. State, 235 Ga. App. 328, 329 (3) (508 SE2d 671) (1998).

        See Roberson v. State, 214 Ga. App. 208, 209 (1) (b) (447 SE2d 640) (1994); OCGA § 17-3-1 (c).

       Although the jury was unable to reach a verdict on the statutory rape charges, Wallace is subject to be retried on these charges. See State v. Archie, 230 Ga. App. 253, 254 (495 SE2d 581) (1998) (where a jury is unable to agree on a verdict in a criminal case, the trial court may declare a mistrial and the accused may then be retried for the same offense).

       See Payne v. State, 231 Ga. 755 (1) (204 SE2d 128) (1974).

       Id.

       See Robbins v. State, 243 Ga. App. 21, 22 (1) (532 SE2d 127) (2000); Spruell v. State, 237 Ga. App. 448, 449 (1) (514 SE2d 896) (1999).

        Anglin v. State, 244 Ga. 1, 3 (2) (257 SE2d 513) (1979), overruled in part on other grounds, Welch v. State, 254 Ga. 603, 606 (2) (331 SE2d 573) (1985).

       See Williams v. State, 244 Ga. 485, 488 (4) (b) (260 SE2d 879) (1979); Heard v. State, 165 Ga. App. 252 (1) (300 SE2d 213) (1983) (physical precedent only); see also McSears v. State, 226 Ga. App. 90, 92 (2) (485 SE2d 589) (1997) (where single officer interrogates suspect regarding multiple, unrelated crimes, there is no need to readvise suspect of rights).

       See Heard, supra.

       See Joiner v. State, 245 Ga. App. 415 (537 SE2d 792) (2000); Watson v. State, 243 Ga. App. 636, 637 (534 SE2d 93) (2000); Deal v. State, 241 Ga. App. 879, 881-882 (3) (528 SE2d 289) (2000).

       See Dennard v. State, 243 Ga. App. 868, 870 (534 SE2d 182) (2000).

       See Moore v. State, 246 Ga. App. 163, 165 (3) (539 SE2d 851) (2000). A defendant also may file a general demurrer, which challenges the very validity of the indictment and may be raised at any time. Here, Wallace does not contend that the indictment was invalid, and, indeed, this is not the case.

       See id.; see also Parks v. State, 246 Ga. App. 888 (1) (543 SE2d 39) (2000).

       See State v. Gamblin, 251 Ga. App. 283, 284 (1) (553 SE2d 866) (2001) (trial court’s quashing of indictment does not preclude the State from reindicting the defendant).


author: Johnson, Presiding Judge.

text:
    A01A2163.
    LANCASTER v. THE STATE.
    (558 SE2d 772)
   Johnson, Presiding Judge.

A jury found Robert Lancaster guilty of theft by receiving, theft by taking, making an improper lane change, leaving the scene of an accident, possessing an open container of alcohol while operating a motor vehicle, and driving with a suspended license. He appeals from the convictions entered on the verdict, challenging the sufficiency of the evidence regarding the driving with a suspended license conviction and urging that the trial court erred in admitting evidence that he remained silent at the time of his arrest. The evidence was insufficient to support the suspended license conviction, so that conviction must be reversed. However, because the remaining enumeration of error was not preserved, the other convictions are affirmed.

1. The state concedes that at trial it failed to prove that Lancaster received notice that his license was suspended. Therefore, his conviction for driving with a suspended license cannot stand.

2. Lancaster contends the trial court should not have allowed the prosecutor to ask the arresting officer if Lancaster asked him any questions as the arrest was taking place. This argument was not preserved for review.

At trial, the prosecutor asked the arresting officer about the circumstances surrounding Lancaster’s arrest. The officer testified regarding information he received about the truck’s involvement in a hit and run accident and the suspect’s description and recent whereabouts. The officer explained why he stopped Lancaster and stated that he handcuffed Lancaster, placed him in the backseat of the patrol car, and drove him back to the accident scene for identification purposes. The following examination took place:

[PROSECUTOR:] Now during the time that you put him in the back of your patrol vehicle, did he ask you any questions?
[OFFICER:] No, ma’am. He did not.
[PROSECUTOR:] Did he ever ask you why he was being —.
[DEFENSE COUNSEL:] Your Honor, I’m going to object.
THE COURT: Objection’s overruled.

The prosecutor then asked the officer if Lancaster asked him what the officer was doing there or what Lancaster was doing there. The officer replied, “No,” to both questions. Defense counsel did not object to either question, nor did he attempt to renew or explain the objection made at the beginning of the inquiry.

Decided January 10, 2002.

Patricia E Angelí, for appellant.

Robert E. Keller, District Attorney, Staci L. Guest, Assistant District Attorney, for appellee.

In order to preserve a ground for error, the objecting party must state the specific ground upon which the objection is based. A defendant must do more than merely state that he objects. A reason why evidence should not be admitted will not be considered on appeal unless the specific reason was urged below. The generalized objection made here was insufficient to notify the trial court of the legal ground so that its applicability could be measured and error avoided. The alleged error was not preserved, and this Court will not consider it.

Judgment reversed as to conviction for driving with a suspended license. Judgment affirmed as to other convictions.

Ruffin and Ellington, JJ, concur.

       See Keller v. State, 247 Ga. App. 599, 600-601 (2) (544 SE2d 511) (2001).

        Herring v. State, 224 Ga. App. 809, 815 (7) (481 SE2d 842) (1997).

       See Fletcher v. State, 199 Ga. App. 756, 757 (406 SE2d 245) (1991).

        Herring, supra.

       Id.

       See Rogers v. State, 247 Ga. App. 219, 226 (9) (543 SE2d 81) (2000).


text:
    A01A2337.
    HUZZIE v. THE STATE.
    (558 SE2d 767)
   Ruffin, Judge.

Latoya Huzzie pled nolo contendere to shoplifting and was sentenced to 12 months probation. When Huzzie violated the terms of her probation, her probation officer, Jacqueline Barnes, filed a petition for revocation of probation. Huzzie moved to dismiss the petition, asserting that it was null and void. According to Huzzie, Barnes — an employee of a private corporation — was engaging in the unauthorized practice of law and, thus, exceeded the scope of her employment in filing the revocation petition. The trial court denied Huzzie’s motion to dismiss, and she appealed. For reasons that follow, we affirm.

In Leverette v. State, we recently addressed whether a probation officer who filed a petition seeking revocation or modification of probation was engaged in the unauthorized practice of law. We found the officer was not. We noted that a “probation officer is a public official employed by the State of Georgia. ... As such, [a] probation officer [acts] as a State agent in the preparation and filing of [a] petition for revocation of. . . probation.” Because a probation officer is charged with handling matters relating to probation, we concluded that such officer is essentially a party to the case and, thus, may file petitions in court relating to that case without violating the prohibition against the unauthorized practice of law.

Unlike in Leverette, the probation officer here is not a State employee. Rather, Barnes is employed by B. L, Inc., a private company retained by the county to provide probation services in misdemeanor cases. Huzzie argues that, under the reasoning in Leverette, an employee of a private corporation such as Barnes cannot file probation revocation petitions because, in doing so, she would be representing the corporation, which our Supreme Court has ruled constitutes the unauthorized practice of law. We disagree.

Under OCGA § 42-8-100 (f) (1), the chief judge of any court within the county is authorized “to enter into written contracts with corporations, enterprises, or agencies to provide probation supervision, counseling, or collection services in misdemeanor cases.” Once such contract has been entered, any probation officer — whether paid by the State or by a private corporation — is an officer of the court. As an officer of the court, the probation officer’s primary duty is to represent the interest of justice, not the interests of his or her employer. Accordingly, Leverette still controls, notwithstanding the fact that Barnes was technically employed by a corporation, rather than the State.

Even if Leverette did not control, there is another basis for rejecting Huzzie’s claim — Barnes was not practicing law. As this Court has recognized,

[a] person occupies a special status while on probation, during which time [her] private life and behavior may be regulated by the State to an extent that would be completely untenable under ordinary circumstances. The rationale for this power is basically, of course, that the person has been convicted of a crime and would be serving a sentence but for the grace of the court. [She] is a prima facie risk to society.

Decided January 10, 2002.

Patterson & Patterson, Jackie G. Patterson, for appellant.

L. Jack Kirby, Solicitor-General, Julianne W. Holliday, Assistant Solicitor-General, for appellee.

To lessen the risk to society, the law provides for the sentencing court’s continued jurisdiction over probationers. And, in maintaining such continued jurisdiction, the sentencing court is aided by probation officers, who serve “as an investigative and supervisory arm of the court” by actually monitoring probationers and providing required reports.

Thus, in filing a petition for probation revocation, Barnes was not instituting an action, which would constitute the practice of law. Rather, she was providing a report to the sentencing court, which already had jurisdiction over Huzzie by virtue of her criminal conviction. In so doing, Barnes neither held herself out as an attorney, nor furnished legal advice, nor undertook any other action that constitutes the unauthorized practice of law. Indeed, we are not the first Court to reach this conclusion. It follows that this claim of error presents no basis for reversal.

Judgment affirmed.

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

       248 Ga. App. 304 (546 SE2d 63) (2001).

       Id. at 305 (1).

       See id.

       See Eckles v. Atlanta Technology Group, 267 Ga. 801, 803-806 (2) (485 SE2d 22) (1997).

        Edwards v. State, 247 Ga. App. 835, 837 (1) (545 SE2d 143) (2001).

       See id. at 838.

       (Punctuation omitted.) Staley v. State, 233 Ga. App. 597, 599 (505 SE2d 491) (1998).

       See OCGA § 42-8-34 (g) (“The sentencing judge shall retain jurisdiction over any person placed on probation”).

       (Punctuation omitted.) United States v. Davis, 151 F3d 1304, 1306 (1) (10th Cir. 1998).

       See OCGA § 42-8-29.

       See OCGA § 15-19-50 (1) (defining the practice of law as “[Representing litigants in court and preparing pleadings and other papers incident to any action or special proceedings in any court”).

       See OCGA § 15-19-51 (defining what constitutes the unauthorized practice of law).

       See Davis, supra; United States v. Bermudez-Plaza, 221 F3d 231, 235 (1st Cir. 2000); United States v. Mejia-Sanchez, 172 F3d 1172 (9th Cir. 1999).


text:
    A00A1084.
    WATTS v. THE STATE.
    (558 SE2d 791)
   Ruffin, Judge.

In Watts v. State, this Court affirmed the trial court’s denial of Zane Watts’ motion to suppress blood and hair samples obtained through a warrant. On certiorari, however, the Supreme Court of Georgia reversed. Accordingly, our prior judgment is vacated, and the judgment of the Supreme Court of Georgia is made the judgment of this Court. The judgment of the trial court is reversed.

Decided January 11, 2002.

King, King & Jones, David H. Jones, for appellant.

Peter J. Skandalakis, District Attorney, Kevin W. Drummond, Assistant District Attorney, for appellee.

Judgment reversed.

Andrews, P. J., and Ellington, J., concur.

       246 Ga. App. 367 (541 SE2d 41) (2000).

       Id. at 371-372 (5).

       See Watts v. State, 274 Ga. 373 (552 SE2d 823) (2001).


author: JOHNSON, Presiding Judge.

text:
    A01A1670.
    FULLER v. TROUP COUNTY.
    (558 SE2d 777)
   JOHNSON, Presiding Judge.

Bibby Fuller sued Troup County for false arrest and civil rights violations under 42 USC § 1983. The county moved for summary judgment on both claims, and the trial court granted the motions. Fuller appeals; for reasons that follow, we affirm the grant of summary judgment on both claims.

Summary judgment is appropriate when there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. In reviewing a trial court’s summary judgment ruling, we apply a de novo standard of review and view the evidence in the light most favorable to the nonmoving party.

Viewed in that light, the record reveals that on September 3, 1996, a Troup County marshal issued Fuller a citation for harvesting timber without a permit. The citation required Fuller to pay a fine to the magistrate court or appear in the magistrate court on or before October 2, 1996. On October 9, 1996, the county magistrate issued a bench warrant for Fuller’s arrest due to Fuller’s failure to pay the fine or appear in court.

On October 31, 1996, Fuller was again harvesting timber in Troup County when the same marshal who had issued the citation confronted him with the bench warrant. Fuller claimed that he had paid the fine, so the marshal left the scene to confirm with the magistrate court that the fine had been paid. The court, however, informed the marshal that the fine had not been paid and that the warrant was still valid.

The marshal and a deputy returned to the lumber site with the bench warrant. When Fuller again said that the fine had been paid, the officers requested documentary proof. Fuller called the lumber company that had hired him, but the company did not have a copy of the receipt purportedly showing that the fine had been paid. Fuller then called his wife, who Fuller said had a copy of the receipt.

The officers, who had been at the lumber site for 25 minutes, told Fuller to follow them to the sheriff’s office in his own vehicle and to have his wife meet them there with the receipt. They told Fuller that the charges would be dropped if the receipt showed that the fine had been paid. According to the officers, Fuller became angry and said that they would have to arrest him. The officers arrested Fuller and took him to the sheriff’s department.

Fuller filed his complaint against Troup County for false arrest. The county moved for summary judgment on the grounds that the officers had probable cause to arrest Fuller and that they had not acted maliciously. In response, Fuller amended his complaint to add the 42 USC § 1983 claim. The county moved for summary judgment on that claim as well, again on the basis that the arrest was supported by probable cause. The trial court granted the motions for summary judgment as to both the false arrest and § 1983 claims. Fuller appeals from those summary judgment rulings.

1. “An arrest under process of law, without probable cause, when made maliciously, shall give a right of action to the party arrested.” In the instant case, there is no evidence that Fuller’s arrest was made with malice or without probable cause.

“Lack of probable cause shall exist when the circumstances are such as to satisfy a reasonable man that the accuser had no ground for proceeding but his desire to injure the accused.” There is no evidence in this case that the officers had no ground for arresting Fuller other than their desire to injure him. On the contrary, the unrefuted evidence shows that the officers based their arrest solely on the outstanding bench warrant. Fuller claims that the warrant was invalid because he had paid the fine upon which it was based. But the record before us does not contain the purported receipt proving that the fine had been properly paid.

Nevertheless, even if we assume that the warrant should have been recalled because the fine had been paid, the officers still had probable cause to arrest Fuller. “The existence of probable cause must be measured by current knowledge, i.e., at the moment the arrest is made and not hindsight.” In the instant case, at the moment the arrest was made, the officers knew that the warrant had been issued, and they even confirmed with the issuing magistrate court that the warrant was still outstanding. Even if such information is subsequently proven to be wrong, the Supreme Court has held that “in hindsight, [it] will not declare an arrest to be invalid when the arresting officer reasonably relied upon information which he had no reason to think was incorrect.”

Not only was the arrest made with probable cause, but there is no evidence that the officers acted maliciously. “Malice consists in personal spite or in a general disregard of the right consideration of mankind, directed by chance against the individual injured.” The officers did not arrest Fuller out of personal spite. Rather, they arrested him only after they confirmed that the bench warrant was outstanding, after he was unable to provide documentary proof supporting his claim that he had paid the fine, and after he was given the opportunity to come to the sheriff’s department with his wife to provide a receipt allegedly showing that the fine had been paid.

Because there is no evidence that Fuller was arrested without probable cause or that the arresting officers acted with malice, Fuller’s false arrest claim is insupportable as a matter of fact or law. The trial court therefore correctly granted summary judgment to Troup County on the claim.

2. Under 42 USC § 1983, a person who, under color of state law, deprives another person of his constitutional rights shall be liable to the deprived party. The Supreme Court has interpreted § 1983 to create a cause of action against a municipality based upon acts which are in implementation of an intentional policy which deprives a constitutional right. “What is required to be proved, directly or circumstantially, is that a governing body has worked constitutional deprivation of a citizen pursuant to an impermissible or corrupt policy which is intentional and deliberate.”

In the instant case, there is no evidence that Fuller was deprived of any constitutional right, let alone that Troup County implemented any sort of policy which deprived Fuller of a constitutional right. On the contrary, the evidence in the record before us shows only that officers, acting with probable cause pursuant to a bench warrant, arrested Fuller. Absent any evidence of an intentional policy which has worked a constitutional deprivation, the trial court properly granted summary judgment against Fuller on his 42 USC § 1983 claim.

Judgment affirmed.

Ruffin and Ellington, JJ., concur.

Decided January 11, 2002.

Lewis, Taylor, Todd & Dixon, Alex L. Dixon, for appellant.

Willis, McKenzie & Long, Edward L. Long, Jr., Matthew C. Alford, for appellee.

       OCGA § 9-11-56 (c).

        Wang v. Moore, 247 Ga. App. 666-667 (544 SE2d 486) (2001).

       OCGA § 51-7-1.

       OCGA § 51-7-3.

       See Harvey v. State, 266 Ga. 671, 673 (469 SE2d 176) (1996) (officer had probable cause to arrest defendant based on a bench warrant that had previously been recalled because, at the time of arrest, computer checks through the Georgia and National Crime Information Centers mistakenly revealed that the warrant was still in effect).

       (Citations and punctuation omitted.) Id.

       Id.

       OCGA § 51-7-2.

        City of Cave Spring v. Mason, 252 Ga. 3, 4 (310 SE2d 892) (1984).

       Id. at 5.


author: Phipps, Judge.

text:
    A01A1676.
    TONEY v. THE STATE.
    (558 SE2d 780)
   Phipps, Judge.

A jury found Cleveland Toney guilty of two counts of armed robbery. He appeals, contending that the trial court erred by allowing an in-court identification tainted by a previous impermissibly suggestive one-man showup. He also contends that the evidence was insufficient to support his conviction. Because the record demonstrates that, under all the circumstances, the identification was reliable, and because the evidence was sufficient to support Toney’s conviction, we affirm.

Viewed in the light most favorable to the verdict, the evidence adduced at trial showed that at about 7:00 p.m. on October 7, 1999, Rosie Hodge and Bruce Wingate stood talking in the parking lot of a restaurant. Two men approached them from a wooded trail that descended a hill abutting the back of the parking lot. The men were wearing dark pants and white shirts. They pulled dark bandannas over their faces and, at gunpoint, demanded money and jewelry from Hodge and Wingate. Hodge threw her cosmetic bag and then ran. Wingate turned over jewelry and money to the men. The men then fled to the trail, which led to Cantrell Drive.

Meanwhile, Daniel Davis, at his home on Cantrell Drive near an entrance to the trail, had seen a black Ford Escort with a metallic silver design on its side stop in front of his house. Two men exited the car. They were wearing dark pants and bandannas or some other “dark objects” on their faces. The engine was left running, and the caution lights were flashing. Davis watched the two men, as they came within twenty to thirty feet of his house, walk onto the trail. Five or ten minutes later, Davis saw the same two men, this time running from the trail back to the car.

Within five minutes of the armed robberies, a police officer arrived on the crime scene. He interviewed the victims and then broadcast descriptions of the robbers and the direction in which they had fled. Police officers responded by going to that area of Cantrell Drive where the trail led. Based on reports from Davis and others, police canvassed the area for the Ford Escort and spotted one that matched the description approximately two or three miles from the trail. Police stopped the car. Three men were in the car, and they were wearing dark pants and light shirts. Police took them into custody and found in the car two bandannas, one under the front passenger seat and one in the hatchback area. The bandannas were the same type as those the victims saw on the robbers and the same type of covering that Davis saw on the two men who entered the trail.

Within thirty minutes of the armed robberies, police had transported Davis to the area where the three men were being held. Davis sat in a police car as a police officer brought the three apprehended men, one at a time, into the spotlight of the police car to see whether Davis could identify any of them. Without hesitation, Davis identified Toney and another man as the two he had seen earlier. The two men were patrons of the convenience store where Davis worked. And at trial, Davis testified, “I know them from coming in the store, so that’s how I identified them.” Davis stated he had seen Toney “almost every day” because Toney was “in and out of the store” purchasing Newport cigarettes.

1. Toney contends that the trial court erred in admitting Davis’s in-court identification because it was tainted by the one-man showup which he claims was impermissibly suggestive. Although showing suspects singly to a witness for identification purposes is inherently suggestive, an identification need not be excluded as long as “under all the circumstances the identification was reliable notwithstanding any suggestive procedure.” Our inquiry here is whether, under the totality of the circumstances, there was a substantial likelihood of irreparable misidentification. As enunciated in Neil v. Biggers, to evaluate that likelihood, we consider factors that

include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

Applying these factors, we find that Davis had an excellent opportunity to view Toney around the time of the crime as Toney walked alongside his house to enter the trail. Davis had seen Toney and another man exit the Ford Escort, noting its distinguishing side design. Davis appeared certain of his identification at the showup which took place within 30 minutes of the armed robberies and the time when Davis had seen Toney enter and later leave the trail that led to the crime scene. In addition, Davis recognized Toney as a regular customer at his place of employment — even recalling Toney’s usual purchase, thus providing the in-court identification with an origin independent of the showup.

Toney cites Banks v. State in support of his argument that because the showup took place while he was in police custody and while a police light shone upon him, the in-court identification should not have been allowed. Banks, however, is factually distinguishable, and after consideration of the factors set forth in Neil, the totality of the circumstances in Banks did not show that the victim’s identification was reliable despite any suggestive procedures. There, the 83-year-old victim “could not see too well”; his attention was focused on an accomplice during the crime, and he admitted that he did not pay much attention to the face or the clothing of the person he later claimed was the defendant; the victim’s description of the perpetrator given to police after the offense, but before the showup, differed in important respects from the defendant’s appearance at the showup; the victim later denied giving a description of the perpetrator prior to the showup; and the in-court identification had no independent origin.

Under the totality of the circumstances presented in this case, we find no substantial likelihood of irreparable misidentification. The trial court did not err in allowing Davis’s in-court identification of Toney.

2. Pointing out that the evidence was circumstantial, Toney contends that it was insufficient to support his conviction. On appeal from a criminal conviction, an appellant no longer enjoys the presumption of innocence, and we view the evidence in the light most favorable to the verdict. We do not weigh the evidence or determine witness credibility, but only determine whether the evidence was sufficient under the standard of Jackson v. Virginia Direct evidence is not required to support a conviction.

Decided January 11, 2002.

Hagler, Kyles & Adams, Clark C. Adams, Jr., for appellant.

J. Gray Conger, District Attorney, Alonza Whitaker, Assistant District Attorney, for appellee.

A conviction may be based upon circumstantial evidence if the proved facts are not only consistent with the hypothesis of guilt, but exclude every other reasonable hypothesis but the guilt of the accused. When the evidence meets this test, circumstantial evidence is as probative as direct evidence, and whether this burden has been met is a question for the jury. When the jury is authorized to find that the evidence, though circumstantial, excluded every reasonable hypothesis except the defendant’s guilt, the verdict will not be disturbed unless the verdict is insupportable as a matter of law. Further, while circumstantial evidence must exclude every other reasonable hypothesis but the defendant’s guilt, the evidence need not exclude every inference or hypothesis.

Construing the evidence in the light most favorable to the jury’s verdict, we find that the jury rationally could have found from the circumstantial evidence that every reasonable hypothesis was excluded except that Toney was one of the men who committed the crimes. Both victims testified that two men wearing dark pants, light shirts, and bandannas emerged from the trail, took property from them at gunpoint, and then retreated back into the trail. Around the time of the robberies, Toney and another man were seen walking onto the trail that led to the crime scene and were seen shortly thereafter running out of the trail. Within 30 minutes, Toney was apprehended in a car that had been seen in the vicinity of the crime scene. He was wearing clothing that matched the description of that worn by the robbers, and the car contained two bandannas like the ones the robbers wore. We conclude that the evidence authorized the jury to find beyond a reasonable doubt that Toney was guilty of two counts of armed robbery.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

        Killens v. State, 184 Ga. App. 717, 720 (3) (362 SE2d 425) (1987).

        Cleveland v. State, 164 Ga. App. 478, 480 (1) (298 SE2d 22) (1982); Killens, supra.

        Killens, supra; Cleveland, supra.

       409 U. S. 188, 199-200 (III) (93 SC 375, 34 LE2d 401) (1972).

       Id.; Cleveland, supra.

       See Killens, supra at 721.

       216 Ga. App. 326 (454 SE2d 784) (1995).

       Supra.

        Banks, supra at 329 (3).

       See Salazar v. State, 245 Ga. App. 878, 879-880 (1) (539 SE2d 231) (2000).

        Hayes v. State, 249 Ga. App. 857, 859 (1) (549 SE2d 813) (2001).

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Hayes, supra.

        Hayes, supra at 860 (1).

       (Citations and punctuation omitted; emphasis in original.) Id.

       See Jackson, supra; Hayes, supra; State v. Watson, 239 Ga. App. 482, 484-486 (2) (520 SE2d 911) (1999).


author: Miller, Judge.

text:
    A01A1856.
    SWINDALL v. COX ENTERPRISES, INC.
    (558 SE2d 788)
   Miller, Judge.

Patrick Swindall sued Cox Enterprises, Inc. for libel for statements made in an editorial published in Cox’s newspaper, the Atlanta Constitution. The trial court granted Cox’s motion for summary judgment on the ground that the statements were substantially true. We agree and affirm.

To prevail at summary judgment, the moving party must show that there is no genuine issue of material fact and that the undisputed facts, viewed most favorably to the nonmoving party, warrant judgment as a matter of law. A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the moving party may discharge its burden by pointing out by reference to affidavits, depositions, and other documents in the record that there is an absence of evidence to support the nonmoving party’s case.

In 1989 a federal grand jury indicted Swindall for peijury. As summarized later by the Eleventh Circuit Court of Appeals, the ten-count indictment charged that “Swindall had discussed money-laundering transactions with an undercover agent and an intermediary, and then falsely testified to a grand jury to conceal the extent of his involvement in these discussions. Swindall was not charged with any substantive money-laundering offenses.” The United States District Court for the Northern District of Georgia convicted Swindall of nine counts of peijury, of which the Eleventh Circuit reversed three and affirmed six.

In 1999 the Atlanta Constitution published an editorial entitled “Barr’s claims outrageous, invalid,” which quoted statements made by U. S. Representative Bob Barr during former President Clinton’s impeachment trial. Barr was asked if prosecutors would have sought an indictment of an individual who engaged in the peijury of which the President was accused. Barr responded that he had prosecuted such cases “including a case that probably cost me a primary election in the Republican Party for prosecuting a member of Congress for precisely the activity which brings us here today; that is peijury, misleading a grand jury.” The editorial then commented on Barr’s statements:

Barr compares the charges against Pat Swindall, the then-member of Congress he prosecuted and convicted for perjury, to the accusations against Clinton. Swindall was charged with lying about his involvement in a drug-money laundering scheme. The president is accused of lying in a civil deposition about consensual sexual conduct. Former Sen. Dale Bumpers . . . said House Republicans have lost all sense of proportionality in their pursuit of the president. ... By equating lying about sex with lying about drug-money laundering, Barr proves Bumpers’ point.

The editorial made a total of three references to Swindall’s situation: (1) “Swindall was charged with lying about his involvement in a drug-money laundering scheme”; (2) Swindall’s “lying about drug-money laundering”; and (3) Swindall was “a man who lied about drug-money laundering.” Swindall alleges that these statements libeled him.

“A libel is a false and malicious defamation of another, expressed in print [or] writing. . . , tending to injure the reputation of the person and exposing him to public hatred, contempt, or ridicule.” To be actionable the statement must be both false and malicious, and the plaintiff has the burden of proving the statement’s falsity. In determining whether a statement is false,

defamation law overlooks minor inaccuracies and concentrates upon substantial truth. A statement is not considered false unless it would have a different effect on the mind of the viewer from that which the pleaded truth would have produced. Minor factual errors which do not go to the substance, the gist, the sting of a story do not render a communication false for defamation purposes.

Arguing that the federal conviction established the truth of its editorial statements, Cox successfully moved for summary judgment. Swindall concedes that the first statement — that the government charged him with lying about his involvement in a drug money-laundering scheme — was true. He claims that the other two statements — that he indeed lied about drug money laundering — were false. He contends that there was no evidence that he committed the crime of money laundering and that the statements directly contradicted findings made by the trial judge during Swindall’s post-trial sentencing hearing.

Swindall’s arguments are misplaced. The statements at issue do not assert that Swindall laundered drug money; they assert that he lied about drug money laundering. His perjury convictions on nine counts of doing just that give substantial truth to the editorial’s statements.

Swindall misguidedly focuses on remarks made by the federal judge during the sentencing portion of his trial, in which the judge focused on the “sting” nature of the underlying drug money-laundering transaction. As the police operation was designed only to give the appearance of a drug money-laundering transaction, no actual drug money was involved, and thus no drug money-laundering crime in fact took place. When the government nevertheless tried to have the federal court enhance Swindall’s sentence on the ground that he was involved in an actual drug money-laundering crime, the court responded:

The government claims, but has completely failed to prove, that Mr. Swindall’s testimony before the grand jury was in respect to the crime of money laundering. There is no evidence that the crime of money laundering was committed in connection with the negotiations among Mr. Swindall, Mr. LeChasney and [the undercover agent]. In fact, it’s doubtful that such a crime could have been committed because the funds supplied appear to have been government funds provided through the undercover agent.

As there was no actual drug money-laundering crime, the court accordingly did not enhance the sentence.

Swindall’s attempt to use the court’s remarks to establish his libel case is ineffectual. The federal jury did find that he lied about his discussions concerning his possible use of what he understood to be drug money, even though in truth the money did not come from drugs but from the government. Thus, based on Swindall’s state of mind at the time he testified to the grand jury, it is substantially true that he lied about drug money laundering. The crux is that the actual crime of money laundering does not have to be committed for an individual to engage in discussions about money laundering or to lie about one’s involvement in a money-laundering scheme. Any minor inaccuracies in the editorial’s description of Swindall’s conviction are of no consequence.

Since Swindall cannot meet his burden of proving the falsity of the editorial, the court did not err in granting summary judgment to Cox. This moots the question of malice.

Decided January 11, 2002.

Patrick L. Swindall, pro se.

Dow, Lohnes & Albertson, Thomas M. Clyde, Peter C. Canfield, Robert C. McBurney, for appellee.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

        Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991); see OCGA § 9-11-56 (c).

        Lau’s Corp., supra, 261 Ga. at 491; Jaillett v. Ga. Television Co., 238 Ga. App. 885, 886 (520 SE2d 721) (1999).

        United States v. Swindall, 971 F2d 1531, 1534 (11th Cir. 1992).

       Id. at 1557.

       OCGA § 51-5-1 (a).

        Jaillett, supra, 238 Ga. App. at 888.

       (Citations and punctuation omitted.) Id.

       Id.

       See Cox Enterprises v. Thrasher, 264 Ga. 235, 237 (3) (442 SE2d 740) (1994).


author: Barnes, Judge.

text:
    A01A2525.
    BOYD v. THE STATE.
    (558 SE2d 787)
   Barnes, Judge.

Larry Boyd, pro se, appeals the trial court’s order denying his motion to vacate, set aside, modify, or correct “a null and void sentence.” The record shows that in 1995, this court affirmed Boyd’s conviction for armed robbery in an unpublished opinion. Boyd v. State, 219 Ga. App. XXVI (1995). On April 16, 2001, Boyd filed this motion, which the trial court denied April 24, 2001. He appeals, arguing that he should not have received a life sentence following a jury trial, but should have been allowed to plead guilty with a court-approved sentence of ten years.

Although he contends that he is challenging an illegal sentence, Boyd’s appeal, in fact, attacks only the rejection of his negotiated guilty plea. This is not an attack on his sentence, and, even if his allegations were true, they would not make his sentence void. “A sentence is void if the court imposes punishment that the law does not allow.” Crumbley v. State, 261 Ga. 610, 611 (1) (409 SE2d 517) (1991). Therefore, Boyd’s motion was properly denied.

Further, in an appeal in which jurisdiction depends on a challenge to an allegedly void sentence, Boyd may not raise issues which only involve the validity of his conviction. Daniels v. State, 244 Ga. App. 522, 523 (536 SE2d 206) (2000). Therefore, as this appeal is not an attack on a void sentence, we are without jurisdiction to consider it. Such “bootstrapping” cannot vest this court with jurisdiction to consider potential errors that should have been asserted in Boyd’s direct appeal. Davis v. State, 233 Ga. App. 825, 826-827 (505 SE2d 801) (1998); Balkcom v. State, 227 Ga. App. 327, 331-332 (489 SE2d 129) (1997).

Further, Boyd should have asserted this alleged error in his prior appeal, and by not asserting the error at that time, he waived or abandoned appellate consideration of the issue. See Bellamy v. Fed. Deposit Ins. Corp., 236 Ga. App. 747, 750 (c) (512 SE2d 671) (1999). Therefore, he cannot raise the issue in a later appeal because of res judicata. Blalock v. State, 201 Ga. App. 461 (411 SE2d 914) (1991). Appellants cannot present a portion of their claim in one appeal and reserve other issues in the event the first claim fails, because appeals cannot be relitigated ad infinitum. See Echols v. State, 243 Ga. App. 775, 776 (534 SE2d 464) (2000).

Decided January 11, 2002.

Larry J. Boyd, pro se.

Robert E. Keller, District Attorney, for appellee.

Accordingly, we have no jurisdiction to consider this appeal.

Appeal dismissed.

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


author: Eldridge, Judge.

text:
    A02A0401.
    DUNCAN v. THE STATE.
    (558 SE2d 783)
   Eldridge, Judge.

A Jones County jury convicted James Otis Duncan of single counts of armed robbery (OCGA § 16-8-41) and kidnapping (OCGA § 16-5-40). He was sentenced as a recidivist to consecutive sentences of life imprisonment without parole under OCGA § 17-10-7 (b) (2). The defendant appeals from the denial of his motion for new trial, contending (1) that the evidence was insufficient to support his convictions; and (2) that he was denied effective assistance of counsel. Having determined that the evidence was sufficient to support the verdicts and that there is no reversible error, we affirm.

1. The standard of review applied in determining the sufficiency of the evidence is that of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), i.e., whether any rational trier of fact could have found guilt beyond a reasonable doubt. We have held, “the evidence must be viewed in [the] light most favorable to the verdict, and [the] appellant no longer enjoys a presumption of innocence. . . . [Cits.]” (Punctuation omitted.) Sanders v. State, 236 Ga. App. 578 (512 SE2d 678) (1999); Singleton v. State, 231 Ga. App. 694 (1) (500 SE2d 411) (1998).

Viewed in the light most favorable to the jury’s verdict, the evidence shows that on November 6, 2000, at approximately 1:00 a.m., a man wearing a black ski mask entered a Flash Foods convenience store located outside Gray going toward Milledgeville. At gunpoint, he grabbed the store clerk by the arm and forced her behind the checkout counter, telling her to open the store’s cash registers. After emptying the cash drawers of the money in them, the gunman ordered the clerk to unlock the store’s safe. The clerk told him that only her manager had a key to the safe but explained that the safe dispensed cash and coins in plastic tubes to ensure that funds were always available to clerks for making change — this by pushing external buttons on the safe organized by currency and coin denomination. The perpetrator followed the clerk’s instructions and took the money-filled plastic tubes which the safe delivered. The masked perpetrator again grabbed his victim, forcing her into a storeroom located at the rear of the store. There, after turning off the lights and ordering her to remove her clothing, the gunman changed his mind and forced the store clerk back to the safe. As the perpetrator waited for the safe to “drop” more money by plastic tube, he released his victim, telling her to lock the store’s front doors. Given the opportunity, the clerk fled from the store, managing to flag down a passing car, get in, and escape.

At first, the perpetrator pursued his victim on foot, but realizing this was to no avail, he pursued her in a vehicle provided to him by his employer which he had parked behind the store, a white panel van. A high speed chase ensued; however, police intervened upon a 911 call from the victim’s vehicle, a felony stop on the van was effected, and the defendant was arrested as the van’s driver. Approximately 20 minutes had elapsed between the commission of the crimes and the defendant’s arrest.

Seized as a result of searches incident to the arrest were an undetermined amount of U. S. currency, in part in four plastic money cylinders, a roll of coins, and other cash found wadded up in defendant’s front pants pockets, and a black BB pistol/.45 lookalike found in plain view under the driver’s seat of the panel van. Other evidence entered at trial included a black ski mask found by police behind the store at daybreak the morning after the incident; footprint evidence taken at the crime scene consistent with the shoes the defendant wore at the time of his arrest; and the testimony of defendant’s fiancée identifying the defendant as the masked perpetrator shown in the store’s videotape of the crimes upon recognizing his voice, the clothes he wore, and the manner in which he walked.

In testimony given on his own behalf, the defendant denied the crimes in issue, stating that they had been committed by a man to whom he had given a ride earlier in the evening and who pulled a gun on him, forcing the defendant to drive to the crime scene. In other testimony, the defendant admitted waiting in the van behind the store as the crimes took place, driving his passenger away from the store, and putting the money found in his pockets there himself — this after the alleged perpetrator jumped from the van, leaving the money behind as police pulled beyond them to make the stop.

The defendant claims the evidence was insufficient to sustain his convictions. We disagree. An appellate court determines only the legal sufficiency of the evidence “adduced [in the court] below and does not weigh the evidence or assess the credibility of the witnesses. [Hight v. State, 221 Ga. App. 574, 575 (1) (472 SE2d 113) (1996).]” (Punctuation omitted.) Brown v. State, 246 Ga. App. 517, 518 (1) (541 SE2d 112) (2000).

Pertinently, armed robbery is committed when a person: (1) intentionally takes (2) the personal property of another (3) from such person (4) by use of an offensive weapon. OCGA § 16-8-41 (a); Prater v. State, 273 Ga. 477, 478 (1) (545 SE2d 864) (2001). Kidnapping is committed when a person “abducts or steals away any person without lawful authority or warrant and holds such person against his [or her] will.” OCGA § 16-5-40 (a). Any unlawful asportation, however slight, will support a kidnapping conviction. Chambley v. State, 163 Ga. App. 502, 504 (1) (295 SE2d 166) (1982); see also Williams v. State, 178 Ga. App. 581, 592 (12) (344 SE2d 247) (1986).

Although the defendant here denied involvement in the crimes in issue, it is not our role to “second guess what. . . the jury chose to believe.” Camp v. State, 181 Ga. App. 714, 717 (4) (353 SE2d 832) (1987). This is no less the case upon the claim that the State’s evidence against him was circumstantial. “Where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, that finding will not be disturbed unless the verdict of guilty is insupportable as a matter of law.” (Punctuation and footnote omitted.) Bacon v. State, 249 Ga. App. 347, 349 (1) (a) (548 SE2d 78) (2001). Accordingly, we find that the defendant’s convictions were supported by sufficient evidence.

2. The defendant does not comply with Court of Appeals Rule 22 (a) by failing to enumerate trial counsel’s ineffectiveness upon the failure to object to the testimony of defendant’s fiancée as a surprise witness. Nonetheless, he does so in his brief. We elect to address defendant’s ineffectiveness claim as raised therein. Indian River Distrib. v. Savannah Business Systems, 237 Ga. App. 7 (514 SE2d 468) (1999). Appellate counsel, however, should be mindful that “[t]his Court does not look with favor upon one who fails to follow the rules of this Court.” Id.; see Court of Appeals Rule 7 (noncompliance with Court rules as basis for contempt against offending party or attorney, dismissal of appeal, or cause to strike appellate brief); see also Leslie v. Williams, 235 Ga. App. 657, 663 (510 SE2d 130) (1998) (Ruffin, J., dissenting), overruled on other grounds, Herr v. Withers, 237 Ga. App. 420, 421 (515 SE2d 174) (1999).

Decided January 11, 2002.

Groover & Childs, Sara E. Roberts, for appellant.

Fredric D. Bright, District Attorney, Gregory L. Bushway, Assistant District Attorney, for appellee.

To reverse a conviction for ineffective assistance of counsel, the defendant has the dual burden of coming forward with evidence showing that counsel’s performance was deficient and that the deficiency so prejudiced his defense that a reasonable probability exists that the outcome of the trial would have been different in the absence thereof. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). A trial court’s finding of effective assistance of counsel will not be disturbed unless clearly erroneous. Thomas v. State, 246 Ga. App. 448, 449 (1) (540 SE2d 662) (2000).

Pretermitting any deficiency in trial counsel for failure to object to the testimony of defendant’s fiancée as a surprise witness, the defendant “has failed to show that, but for this omission, the result at trial would have been different,” Robinson v. State, 210 Ga. App. 278, 280 (3) (435 SE2d 718) (1993), in that her testimony was no more than cumulative of overwhelming circumstantial evidence otherwise of record. Hodges v. State, 194 Ga. App. 837, 838 (2) (392 SE2d 262) (1990). Defendant’s ineffectiveness claim is therefore likewise without merit.

Judgment affirmed.

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

       OCGA § 17-10-7 (b) (2) pertinently provides:
      Any person who has been convicted of a serious violent felony in this state or who has been convicted under the laws of any other state or of the United States of a crime which if committed in this state would be a serious violent felony and who after such first conviction subsequently commits and is convicted of a serious violent felony for which such person is not sentenced to death shall be sentenced to imprisonment for life without parole.


text:
    A02A0569.
    COOPER v. THE STATE.
    (558 SE2d 786)
   Eldridge, Judge.

A Hall County jury found Michael Tony Cooper guilty of rape, which charge arose when Cooper attacked his daughter-in-law at Little River Park near Gainesville, forcing her to engage in sexual intercourse with him. Cooper appeals and, in his sole enumeration of error, claims the trial court erred in denying his extraordinary motion for new trial grounded on “newly discovered evidence,” i.e., a letter allegedly authored by the victim post-trial and sent to Cooper in jail, wherein the victim allegedly informed Cooper that “I said what I did so Mitchell [defendant’s son and the victim’s husband] would stay at home with me.” Finding no error in refusing to grant a new trial based on such evidence, we affirm.

Decided January 11, 2002.

H. Bradford Morris, Jr., for appellant.

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

The letter was hearsay and was inadmissible absent authentication. The victim categorically denied writing the letter, and there was no return address on the envelope. DNA analysis showed that saliva on the envelope did not belong to the victim. Fingerprint evidence did not show that the envelope was handled by the victim. While a handwriting expert hired by Cooper testified that the letter was “probably” written by the victim, a Georgia Bureau of Investigation handwriting expert testified that the letter was not authored by the victim. Furthermore, handwriting exemplars contained in the record show no similarity between the victim’s handwriting and the writing on the letter. Finally, the author of the letter misspelled the victim’s name when signing such in conclusion.

Credibility as it relates to the admissibility of evidence is an issue for the trial court; a trial court’s findings as to credibility will be upheld on appeal unless clearly erroneous. The trial court’s implied finding that the foundation witness was [not] credible was not clearly erroneous.

Absent a proper foundation authenticating the letter, the trial court did not err by refusing to grant Cooper a new trial based thereon.

Judgment affirmed.

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

       (Citations and punctuation omitted.) Wesley v. State, 228 Ga. App. 342, 343 (1) (491 SE2d 824) (1997); Dunn v. State, 218 Ga. App. 329, 330 (461 SE2d 294) (1995).

        Sims v. State, 195 Ga. App. 631, 632 (394 SE2d 422) (1990). See also Black v. State, 255 Ga. 668, 671 (4) (341 SE2d 436) (1986).


text:
    A01A1860.
    GREGG v. THE STATE.
    (558 SE2d 729)
   Miller, Judge.

The Superior Court of Whitfield County convicted Kenneth Gregg of speeding in violation of OCGA § 40-6-181. Throughout the proceedings, Gregg challenged the jurisdiction of the court and argued that the court unlawfully entered a plea of “not guilty” on his behalf when he refused to enter a plea. The questions on appeal are whether a Georgia superior court has subject matter and personal jurisdiction in a case involving speeding in Georgia and whether that court is authorized to enter a “not guilty” plea on behalf of a defendant who refuses to plea. We answer both questions in the affirmative and affirm.

The uncontested evidence shows that police observed Gregg traveling at 93 mph in a posted 70-mph zone in Whitfield County, Georgia. When arraigned, Gregg objected to the superior court’s jurisdiction over both him and the offense and refused to enter a plea. The court entered a “not guilty” plea on his behalf. Gregg moved to withdraw the plea but offered no alternative plea. At the calendar call, Gregg reasserted his jurisdictional objection and again complained that the court had no authority to enter a plea on his behalf. The court cited OCGA § 17-7-94 as the basis for its authority.

At trial Gregg announced that inasmuch as the court had no jurisdiction, he was “not ready.” He refused to participate in the proceedings other than to object repeatedly to the court’s jurisdiction. Based on the uncontested testimony of the officers, the jury found Gregg guilty of speeding, and the court sentenced him to 12 months, suspended on his payment of a $750 fine plus costs and applicable surcharges. Acting pro se, Gregg appeals, enumerating 12 errors.

1. Gregg’s first enumeration challenges the jurisdiction of the probate court, which bound his case over to superior court. Yet he asserts no rationale to explain why the probate court would have lacked jurisdiction. Since OCGA § 40-13-21 (a) authorizes probate courts to hear traffic violations, this enumeration fails.

2. Gregg’s second, fifth, and tenth enumerations all hinge on the argument that the Whitfield County Superior Court lacked jurisdiction over the subject matter and over his person. We hold Gregg’s argument is without merit.

(a) Subject Matter Jurisdiction. Georgia superior courts have concurrent jurisdiction over misdemeanors with inferior courts. Speeding, which is a violation of OCGA § 40-6-181, is a misdemeanor unless the local court has established a traffic violations bureau pursuant to OCGA § 40-13-50. As no evidence shows the establishment of a traffic violations bureau in Whitfield County, speeding is treated as a misdemeanor in that county, over which the Whitfield County Superior Court has subject matter jurisdiction.

(b) Personal Jurisdiction. Pursuant to OCGA § 17-2-1 (b), Georgia courts have personal jurisdiction over persons who commit crimes within the State. Here the undisputed testimony established that Gregg committed a speeding violation in Whitfield County, Georgia. The Whitfield County Superior Court had personal jurisdiction over him.

3. In his third and seventh enumerations, Gregg contends that the court lacked the authority to enter a “not guilty” plea on his behalf when he refused to enter a plea. OCGA § 17-7-94, however, provides that authority. His fourth enumeration complaining that the court, rather than the prosecutor, identified the authorizing statute is of no import, as a court is certainly free if not obligated to conduct independent legal research regarding the case before it.

4. Gregg’s sixth enumeration complains that the court started the arraignment hearing shortly before the court reporter began recording the proceedings. Beyond the reading of the charge against him, the only matters he asserts were not recorded were his jurisdictional challenges and his assertion that the court had no power to enter a plea on his behalf. As the State does not contest that these matters were timely raised, the nonrecordation resulted in no harm.

5. In his eighth enumeration, Gregg claims that because the court lacked jurisdiction, he was “not read/’ for trial, and therefore the court erred in proceeding with the trial. As explained in Division 2, the court did have jurisdiction. Moreover, Gregg declined the court’s offer to seek a continuance.

6. Gregg’s ninth enumeration claims that based on the totality of the court’s actions described above, the court conspired with the prosecutor to deprive Gregg of his constitutional rights. This issue, however, was not raised below and therefore was not preserved for appellate review. Furthermore, as discussed herein, the court’s actions were beyond reproach.

7. Gregg’s eleventh enumeration argues that his sentence exceeded that allowed by law. As a misdemeanor, speeding may be punished by a fine not to exceed $1,000 or by 12 months imprisonment or both. The recent enactment of lower limits on speeding fines became effective on July 1, 2001, well after Gregg’s April 14, 2000 offense, and thus did not apply to his sentencing. As the sentence was within authorized limits, we will not review it.

Decided December 18, 2001

Reconsideration denied January 14, 2002

Kenneth Gregg, pro se.

Kermit N. McManus, District Attorney, Susan L. Franklin, Assistant District Attorney, for appellee.

8. Gregg’s, twelfth enumeration contends that because the court clerk did not stamp Gregg’s notice of appeal until two days after it was filed, a second conspiracy deprived him of his due process rights. As the court corrected this mistake so that the notice reflected the correct filing date, Gregg’s timely appeal was not affected. This enumeration also fails.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

        Lee v. State, 222 Ga. App. 389, 390 (1) (474 SE2d 281) (1996); cf. Freeman v. State, 194 Ga. App. 905, 906 (2) (392 SE2d 330) (1990) (state courts also have jurisdiction to try misdemeanors).

       OCGA § 40-6-1 (a); see OCGA § 40-13-26.

       See OCGA § 40-13-60.

        Freeman, supra, 194 Ga. App. at 906 (2).

       See id.

       See, e.g., Thomason v. State, 268 Ga. 298, 308 (5) (486 SE2d 861) (1997); Freeman, supra, 194 Ga. App. at 905.

       See, e.g., Hilson v. Dept. of Public Safety, 236 Ga. App. 638, 640 (512 SE2d 910) (1999) (“Our research has revealed . . .”); Design Engineering &c. v. Cessna Finance Corp., 164 Ga. App. 159, 161 (1) (296 SE2d 195) (1982) (“Our independent research confirms . . .”).

       See Holt v. State, 244 Ga. App. 341, 344 (2) (535 SE2d 514) (2000).

       See OCGA § 40-6-1 (a).

       OCGA § 17-10-3 (a) (1).

       See OCGA § 40-6-1 (b) and accompanying note.

       See Moton v. State, 242 Ga. App. 397, 399 (3) (b) (530 SE2d 31) (2000).

        Branch v. State, 182 Ga. App. 818, 820 (3) (357 SE2d 136) (1987).


text:
    A01A1739.
    LANIER v. STATE FARM MUTUAL INSURANCE COMPANY.
    (558 SE2d 813)
   Phipps, Judge.

Cody Lanier, by his next friend and natural guardian Catherine Marie Lanier, his mother, filed a suit for injuries suffered in a motor vehicle collision and served State Farm Mutual Insurance Company (State Farm) as the uninsured motorist carrier. This appeal is from the grant of partial summary judgment to State Farm. For the reasons set forth below, we reverse.

On April 6, 1997, Cody, then age five, was injured in a collision while a passenger in an automobile driven by his maternal grandfather, Freddy Kent. The insurer of the other driver subsequently became insolvent. Accordingly, a copy of the complaint against the other driver was served on State Farm as Kent’s uninsured motorist carrier. Kent owned three vehicles, each covered by a different policy issued by State Farm. State Farm moved for summary judgment, conceding coverage with respect to the policy on the car involved in the collision, but resisting coverage as to the other two policies. The basis for its resistance was that Cody was not a “relative” of his grandfather within the meaning of those policies, as he did not live with him at the time of the collision. Under those policies, uninsured motorist coverage extended to a “relative,” defined as “a person related to [the named insured] ... by blood . . . who lives with [the named insured].” The sole factual issue underlying this appeal is whether Cody lived with his grandfather at the time of the collision.

To prevail on summary judgment, the movant must demonstrate that no genuine issues of material fact remain and that the undisputed facts, viewed in the light most favorable to the non-moving party, warrant judgment as a matter -of law. A defendant meets this burden by showing the court that the . . . evidence in the record reveal [s] that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. Once the defendant discharges its burden, the plaintiff must point to specific evidence giving rise to a triable issue of fact. On appeal, we review the trial court’s grant of summary judgment de novo.

In that review, we “view[ ] the evidence and all reasonable conclusions and inferences drawn from it in favor of the nonmovant.”

It is asserted that the trial court “fail[ed] to construe the . . . evidence . . . most strongly in favor of [Cody] the non-moving party and [failed] to hold a hearing on [the motion for summary judgment].” The second part of this claim has been abandoned by failure to support it with citation of authority or argument. As to the first portion, our attention is directed to the following in Kent’s deposition:

Q. And was [Cody’s mother] living with you at the time of this accident. . . ?
A. Right. Her and the kids were living with me. I mean they were, they had their trailer.

The trial court stated that “[i]t appears . . . that Kent clarified his original statement to indicate that . . . the plaintiff lived at the trailer.” Thus, it granted summary judgment for State Farm because “the record does not contain any evidence that [Cody and his mother] were living with Kent at the time of the accident.”

It is possible, however, to interpret Kent’s testimony that “[Cody’s mother and her children] were living with me. I mean they were, they had their trailer,” as merely a statement that although they had a trailer, they were living with him at the time of the collision. Moreover, while the record before us contains copies of only seven pages of Kent’s 74-page deposition, those pages include Kent’s testimony that “[Cody’s mother] stayed with me probably eighty to ninety percent of the time [in 1997]” and the following:

Decided January 14, 2002.

Salter & Richards, Theodore Salter, Jr., Tracy W. Middlebrooks III, for appellant.

Mabry & McClelland, Wilbur C. Brooks, Sharon W. Ware & Associates, Jacqueline N. Reagin, for appellee.

Q. Back in April of ’97, did [Cody’s mother] have any furniture at [your] address?
A. Just stuff for the kids. ... I had my own furniture.
Q. Okay. What about clothing?
A. . . . [S]he kept her clothes in there at my house and the kids clothes.
Q. All her clothes at [your house] or did she keep them at the trailer?
A. She kept most of them there because she was staying there. She had some at the trailer.
Q. What about other personal effects?
A. [E]verything that she need[ed] for day to day living . . . she kept at my house.

Construing this testimony in favor of Cody as the nonmoving party, it constitutes evidence that his mother, and thus he, were living with Kent in April 1997. This testimony gives rise to a triable issue of fact on the question of coverage under the two policies at issue here.

Judgment reversed.

Smith, P. J., and Barnes, J., concur.

       (Punctuation and footnotes omitted.) Kitchens v. Keadle Lumber Enterprises, 249 Ga. App. 831 (549 SE2d 781) (2001).

       (Citation omitted.) Martin v. Consolidated Stores Corp., 248 Ga. App. 812, 813 (547 SE2d 380) (2001).

       Court of Appeals Rule 27 (c) (2).

       As noted above, the collision occurred on April 6, 1997.


text:
    A01A1779.
    FODOR v. FODOR.
    (558 SE2d 791)
   Phipps, Judge.

Stephen and Beverly Fodor divorced in 1998. According to their separation agreement, she was to retain possession of the family residence until their youngest daughter reached the age of 18 and he was to be responsible for mortgage payments, taxes and insurance on the property during that period. At the time the agreement was executed, those monthly payments included $1,265 to The Money Store and $305 to Greentree Mortgage. When the youngest daughter reached 18, the property was to be sold and the proceeds divided equally. The agreement was incorporated into the final judgment and decree of divorce.

In January 1999, Stephen Fodor stopped making the mortgage payments. The property was foreclosed upon in August 1999. In December 2000, Beverly Fodor initiated a continuing garnishment action against her ex-husband’s employer, seeking to recover 23 months of unpaid mortgage payments for the period from January 1999 to December 2000. Stephen Fodor filed a traverse, claiming that his obligation to make the mortgage payments was not a money judgment subject to garnishment. After conducting a hearing on the traverse, the trial court denied it and entered a continuing garnishment in the amount of $35,462.76 (the amount Beverly Fodor sought less $650 Stephen Fodor paid to the second mortgage company after the foreclosure). We agree with the trial court’s ruling and affirm.

1. Initially, Stephen Fodor argues that his ex-wife is not entitled to pursue a garnishment action because he was obligated to make payments to the mortgage companies, not to her. In Warnock v. Dunbar and Bryant v. Cole, however, the Supreme Court of Georgia determined that an obligation to make mortgage payments as part of an equitable division of property did not cease when the property was sold to a third party. Instead, the court required the party with the mortgage payment obligation to make the remaining payments to his ex-spouse. The court reasoned that the spouse without the mortgage payment obligation, who sold the property and discharged the indebtedness to the bank, had a right to equitable subrogation and was entitled to the payments her ex-spouse would have otherwise been obligated to make to the bank.

The same rule should apply equally in the case of a foreclosure. As part of an equitable division of their property, Stephen Fodor assumed the mortgage obligation and, through no fault of his ex-spouse, defaulted on that obligation. We find that Beverly Fodor is entitled to the payments her ex-spouse otherwise would have been obligated to make to the mortgage companies under the terms of the separation agreement.

Stephen Fodor takes issue with his ex-spouse’s reliance on Warnock and Bryant because they did not consider whether a mortgage payment obligation in a divorce decree constituted a money judgment subject to garnishment. An ex-spouse’s obligation to make a nonalimony lump sum cash payment to his ex-wife pursuant to their divorce decree, as part of an equitable division of property, is a money judgment subject to garnishment. Here, Stephen Fodor was obligated to make nonalimony installment payments for his ex-wife’s benefit pursuant to their divorce decree, as part of an equitable division of property. We find that his obligation was a money judgment subject to garnishment.

Decided January 14, 2002.

"Warren A. Sellers, for appellant.

Marcus G. Howell, Sr., for appellee.

Fodor seeks to distinguish Warnock and Bryant on another ground — in those cases, the ex-spouse was required to pay only the balance owed on the mortgage, not monthly interest as well. In those cases, however, the ex-spouse sought and the court ordered immediate repayment of the amount remaining on the mortgage. Here, Beverly Fodor sought and the trial court ordered a continuing garnishment, which means the payments will be made over time. Because she is subrogated to the rights formerly held by the mortgage companies (at least until her youngest daughter reaches 18), she is entitled to the same interest they would have collected if the mortgage payments had been made over time.

Stephen Fodor also argues that any judgment in favor of his ex-spouse is not definite and certain in amount. On the contrary, the agreement specifies the amount of the monthly payments, to whom they are owed and when they are to be discontinued (when the youngest child reaches 18). The amounts owed by Stephen Fodor can be clearly ascertained by multiplying the monthly amounts specified in the agreement by the number of months of nonpayment before the garnishment action was filed.

2. Based on our holding in Division 1, we find that Beverly Fodor was not limited to a contempt action against her ex-spouse.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

       240 Ga. 122, 123-124 (1) (239 SE2d 684) (1977).

       266 Ga. 535 (468 SE2d 361) (1996).

       Id. at 536; Warnock, supra at 124.

       See Boyd v. Boyd, 191 Ga. App. 718 (382 SE2d 730) (1989).

       Cf. Shelley v. Shelley, 212 Ga. App. 651, 652-653 (442 SE2d 847) (1994) (agreement providing for payment of one-half of mortgage payments and one-half for repairs deemed necessary by both parties, which did not specify any particular amounts or allow those amounts to be clearly ascertained from its terms, was not a money judgment).


author: Ellington, Judge.

text:
    A01A2048.
    GLATFELTER et al. v. DELTA AIR LINES, INC.
    (558 SE2d 793)
   Ellington, Judge.

Kurvin and Irene Glatfelter appeal the trial court’s order granting summary judgment in favor of Delta Air Lines, Inc. on their personal injury complaint based on Delta’s alleged failure to provide a wheelchair for Mr. Glatfelter’s use. Finding no error, we affirm.

1. The Glatfelters contend the trial court erred in granting summary judgment in that Delta admitted liability in judicio when it failed to timely respond to their request for admissions during discovery. See OCGA § 9-11-36 (a) (2), (b). The Glatfelters’ attorney certified that the request for admissions was served “by attaching the same to the Complaint and serving same as reflected by the Marshal’s Entry of Service.” The marshal’s entry of service showed service of the action, summons “and discovery requests” on Delta’s registered agent on August 27, 1999. Delta served its response to the Glatfelters’ request for admissions on December 15, 1999.

Delta moved the trial court for a judicial determination that its response to the Glatfelters’ request for admissions was timely filed. Delta claimed that the request for admissions was not served with the complaint; it supported that assertion with the affidavits of its registered agent for service and the employee who received the complaint from the registered agent. The trial court did not rule on Delta’s motion to have its response declared timely before the hearing on Delta’s motion for summary judgment. Implicit in the trial court’s order granting Delta’s motion for summary judgment is a ruling that the Glatfelters did not serve Delta with their request for admissions. See Peterson v. Columbus Med. Center &c., 243 Ga. App. 749, 753 (1) (b) (533 SE2d 749) (2000).

“Whether evidence is sufficient to overcome facts reflected in a return of service is a matter addressed to the discretion of the trial court.” (Citations omitted.) Webb v. Tatum, 202 Ga. App. 89, 91 (413 SE2d 263) (1991). A marshal’s return of service constitutes prima facie evidence of service as indicated and “can only be set aside upon evidence which is not only clear and convincing, but the strongest of which the nature of the case will admit.” (Punctuation and footnote omitted.) Duke v. Buice, 249 Ga. App. 164, 165-166 (547 SE2d 561) (2001). See Webb, 202 Ga. App. at 91. A defendant challenging the sufficiency of service bears the burden of establishing that the service was insufficient, such as by disproving statements contained in a return of service. Bullard v. West Star Financial Corp., 231 Ga. App. 521-522 (500 SE2d 51) (1998). “Such proof may be presented, along with other evidence, in the form of sworn statements made on personal knowledge.” (Citations and punctuation omitted.) Id. at 521. Applying the abuse of discretion standard, we conclude the sworn affidavits submitted by Delta in this case were sufficient to support the trial court’s implicit finding that the Glatfelters failed to serve the request for admissions.

2. The Glatfelters contend that, even if the trial court accepted and considered Delta’s allegedly untimely responses to their request for admissions, questions of material fact existed which precluded summary judgment. “To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). “The movant has the original burden of making this showing. Once the movant has made a prima facie showing that it is entitled to judgment as a matter of law, the burden shifts to the respondent to come forward with rebuttal evidence.” (Citation and punctuation omitted; emphasis supplied.) Kelly v. Pierce Roofing Co., 220 Ga. App. 391, 392-393 (2) (469 SE2d 469) (1996). “In rebutting this prima facie case, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in OCGA § 9-11-56 [,] must set forth specific facts showing that there is a genuine issue for trial.” (Punctuation omitted.) Entertainment Sales Co. v. SNK, Inc., 232 Ga. App. 669-670 (502 SE2d 263) (1998). A defendant may meet its burden on a motion for summary judgment by showing the court that the documents, affidavits, depositions, and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. Lau’s Corp., 261 Ga. at 491. Our review is de novo, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. White v. BDO Seidman, LLP, 249 Ga. App. 668, 669 (549 SE2d 490) (2001).

Viewed in the light most favorable to the appellants, the evidence showed the following facts. The Glatfelters planned to return from a trip to Connecticut to their home in Florida on May 6, 1999. Their daughter, who purchased their tickets, requested in advance that Delta provide a wheelchair in the Sarasota, Atlanta, and Hartford airports to transport Mr. Glatfelter. At the time, Mr. Glatfelter was 79 years old, obese, and had osteoarthritis in his left knee; he used a cane to walk and walked slowly and carefully.

On May 6, the Glatfelters’ originating flight from Hartford was delayed due to bad weather in Atlanta; they arrived in Atlanta on Concourse B after 1:00 p.m., too late to make their connecting flight to Sarasota. No wheelchair was waiting to help Mr. Glatfelter deplane. The Glatfelters walked to the gate and spoke with a Delta gate agent. The Glatfelters learned that the next flight to Sarasota was scheduled to depart from Concourse A at about 4:00 p.m. Mrs. Glatfelter asked the gate agent to locate a wheelchair to take Mr. Glatfelter to the gate for the next flight to Sarasota. The gate agent called to request a wheelchair and also suggested they find a place on a passing tram. No wheelchair was readily available, and passing trams were all full.

After 15 to 20 minutes passed without the appearance of wheelchair assistance, the Glatfelters decided to walk to Concourse A. Because of numerous weather-related flight delays and cancellations, the concourse was crowded and chaotic. As Mr. Glatfelter stepped onto the escalator to travel down to the transportation mall, the surge of the crowd pushed him and he fell down a few steps. He sustained, among other injuries, a broken right ankle which required surgery. Mr. Glatfelter seeks compensation for his injuries, and Mrs. Glatfelter seeks compensation for loss of consortium.

It is undisputed that Delta owed Mr. Glatfelter, as a qualified handicapped individual, a duty to provide wheelchair assistance when requested in boarding, deplaning, and traveling between gates to make flight connections. 49 USC § 40101 (a) (1) (Air Carrier Access Act of 1986); 14 CFR § 382.39 (a) (1). The ACAA is not a strict liability statute, however, and a minimal delay in providing the requested assistance does not constitute a violation of the Act. Adiutori v. Sky Harbor Intl. Airport, 880 FSupp. 696, 701 (D. Ariz. 1995) (five- to ten-minute wait for a wheelchair), aff’d without opinion, 103 F3d 137 (9th Cir. 1996).

In this case, there is no evidence the Delta gate agent refused the Glatfelters’ request for a wheelchair. To the contrary, Mrs. Glatfelter testified that the gate agent responded courteously to her request and called for a wheelchair but was unable to procure one immediately because of the crowded conditions at the airport. The undisputed evidence shows the Glatfelters, anxious to make the next connecting flight to Sarasota, decided after 15 to 20 minutes not to wait any longer for wheelchair assistance. The ACAA and the regulations applicable here do not specify how quickly requested assistance must be provided, but this does not mean that evidence of a delay of any length is sufficient to raise a jury issue. Although we recognize that under certain circumstances a delay in providing requested wheelchair assistance could amount to a failure to provide assistance, we conclude as a matter of law that under these circumstances a delay of 15 to 20 minutes did not constitute a violation of the ACAA. Adiutori, 880 FSupp. at 701. Furthermore, even if Delta’s 15-to 20-minute delay in providing a wheelchair could be deemed an actionable ACAA violation, Delta’s conduct could not be deemed the proximate cause of the Glatfelters’ injuries because it was followed by other intervening events without which those injuries would not have occurred, i.e., the Glatfelters’ decision to walk to Concourse A; the Glatfelters’ failure to determine that an elevator was available; and the stranger’s bumping into Mr. Glatfelter. Bacon v. Mayor &c. of Savannah, 241 Ga. App. 211, 213-214 (525 SE2d 115) (1999); Finney v. Machiz, 218 Ga. App. 771, 773 (463 SE2d 60) (1995). Accordingly, Delta was entitled to summary judgment on the Glatfelters’ claims.

Decided January 14, 2002

Wilson Law Firm, L. Matt Wilson, Anthony O. Lakes, Davis K. Loftin, for appellants.

Strawinski & Goldberg, Michael L. Goldberg, for appellee.

Judgment affirmed.

Johnson, P. J., and Ruffin, J., concur.

       14 CFR § 382.39 (a) (1) provides:
      Carriers shall ensure that qualified [handicapped] individuals . . . are provided the following services and equipment: Carriers shall provide assistance requested by or on behalf of qualified [handicapped] individuals ... , or offered by air carrier personnel and accepted by qualified [handicapped] individuals ... , in enplaning and deplaning. The delivering carrier shall be responsible for assistance in making flight connections and transportation between gates. This assistance shall include, as needed, the services personnel and the use of ground wheelchairs,. . . on-board wheelchairs where provided in accordance with this part, and ramps or mechanical lifts.

       Cf. Rowley v. American Airlines, 885 FSupp. 1406, 1410-1411 (D. Ore. 1995) (14 CFR § 382.39 (a) (3) provides: “Carriers shall not leave [a handicapped passenger] unattended in a ground wheelchair, hoarding wheelchair, or other device, in which the passenger is not independently mobile, for more than 30 minutes.” Evidence that airline employee left passenger seated in a gate lounge chair, in which she was not independently mobile, unattended for more than an hour raised a jury issue as to passenger’s ACAA claim.).