author: Eldridge, Judge.

text:
    A99A0129.
    NICHOLL v. GREAT ATLANTIC & PACIFIC TEA COMPANY et al.
    (517 SE2d 561)
   Eldridge, Judge.

Grant J. Nicholl, plaintiff-appellant, lost or had stolen his wallet with his driver’s license, credit cards, and other identification in a nightclub in DeKalb County in August or September 1993.

On October 28, 1993, an unknown perpetrator was allowed by NationsBank of Georgia, N. A., to open a checking account in the name of Grant J. Nicholl with plaintiff’s stolen identification and with only a $25 deposit. Such perpetrator passed a number of checks on such account which were returned to the payees due to “NSF” or “Account In Process of Closing.” Plaintiff was unaware that his credit identity had been stolen and that someone was using a fraudulent checking account with his identity to pass bad checks.

The checks included: four checks to Ingle Foods; one check to B. Dalton Books; one check to Pizza Hut; one check to Greyhound; five checks to Kroger Company; one check to A & P; and multiple checks to Cub Foods. All these checks were returned to the payees for “NSF” and “Account In Process of Closing.” On December 23, 1993, the perpetrator wrote a check made payable to A & P for $136.42, forged with the signature of Grant J. Nicholl, and furnished a false address and telephone numbers; however, the date of birth and driver’s license number were plaintiff’s.

The defendant, upon return of the check marked “NSF, Account In Process of Closing,” sent a certified letter to the perpetrator at 4106 Glenwood Road, Apartment Number 3, Decatur, Georgia, addressed to the stolen credit identity of “Grant J. Nicholl.” The notice was returned to the defendant marked “Return to Sender; Addressee Unknown.” On March 23, 1994, after return of the letter, the defendant obtained a warrant for Grant J. Nicholl which was sworn out by Douglas Anderson, its employee-store manager and co-defendant. Defendant made no investigation and took no steps to determine that Grant J. Nicholl was, in fact, the possessor of the NationsBank account and the drawer of the bad check. Other receivers of the bad checks, through reasonable investigation, determined that the plaintiff was not the drawer of checks in the name of Grant J. Nicholl drawn on the fraudulent NationsBank account.

The lack of further investigation was contrary to A & P’s own practice of sending a second letter. A & P employees, when the letter comes back, go over the incident with the cashier to determine if there was anything that could assist in the identifying of the suspect; however, in this case it cannot be remembered if this was done. A & P’s policy was to attempt to call the individual at home or work if the letter comes back. Although there were two telephone numbers on the check, the person responsible for contacting the check writer if the letter comes back did not know if he tried to call the numbers. The A & P store manager did not fill out the response sheet to show what he had done in this case. In short, the manager did not follow store investigative policy and practices prior to taking out the warrant.

On September 2, 1994, plaintiff was stopped for speeding. The arresting officer did a computer check for outstanding warrants and found a warrant for issuance of a bad check, which was drawn on the fraudulent checking account using plaintiff’s stolen identity. Instead of releasing plaintiff for the traffic offense, the officer took plaintiff into custody on the bad check warrant.

Plaintiff pled not guilty in court. On February 14,1995, after giving samples of his handwriting which showed that the account signature and checks were forgeries, the trial court approved the entry of a nolle prosequi to the charge of issuing a bad check.

On February 26, 1996, plaintiff sued The Great Atlantic & Pacific Tea Company (“A & P”) and its employee, Douglas Anderson, for malicious prosecution. The defendants timely answered. On February 6, 1998, defendants filed their motion for summary judgment. On June 12, 1998, the trial court granted the motion. Plaintiff timely appealed.

1. The plaintiff’s first enumeration of error is that the trial court erred in granting summary judgment for the defendants after finding that they acted with probable cause in swearing out a bad check warrant against the plaintiff. We agree.

Over a period of time, the unlawful taking and use of the identity and credit history of another has reached such major proportions in Georgia that in 1998, the General Assembly created a separate criminal act to protect the public, the “Financial Identity Fraud Act.” Ga. L. 1998, p. 865, § 2; OCGA § 16-9-120 et seq. Clearly, plaintiff was a victim of what now is called “financial identity fraud.” From 1993 through 1995, an unknown perpetrator committed (1) theft of plaintiff’s identification papers, including his driver’s license and social security card; (2) fraud and forgery in opening a bogus checking account; and (3) forgery in signing plaintiff’s name and using his identification papers to pass bad checks. See OCGA §§ 16-8-2; 16-8-3 (a); 16-9-1 (a); 16-9-4; 16-9-20 (a).

“A criminal prosecution which is carried on maliciously and without any probable cause and which causes damage to the person prosecuted shall give him a cause of action.” OCGA § 51-7-40.

The elements of malicious prosecution include: (1) prosecution for a criminal offense; (2) the prosecution instigated under a valid warrant, accusation, or summons; (3) termination of the prosecution in favor of the plaintiff; (4) malice; (5) want of probable cause; and (6) damage to the plaintiff. OCGA § 51-1-40H; Sizemore Security Intl. v. Lee, 161 Ga. App. 332 (287 SE2d 782) (1982); Ellis v. Knowles, 90 Ga. App. 40 (81 SE2d 884) (1954).

Medoc Corp. v. Keel, 166 Ga. App. 615-616 (1) (305 SE2d 134) (1983). Those essential elements that are attacked most often on summary judgment are: “(1) a prosecution instituted maliciously and (2) without probable cause which (3) has terminated favorably to the plaintiff. [Cits.]” J. C. Penney Co. v. Miller, 182 Ga. App. 64, 66 (2) (354 SE2d 682) (1987); see also Atlantic Zayre v. Meeks, 194 Ga. App. 267, 268 (1) (390 SE2d 398) (1990). However, in this case, probable cause is the essential element being attacked.

Want of probable cause is an essential element of a malicious prosecution cause of action. Ordinarily, the existence of probable cause is a question of fact for jury determination. Only where the material facts are not in dispute, or when only one reasonable inference can be drawn from the evidence, does the existence of probable cause become an issue of law for the court to resolve. [Cits.]

Kviten v. Nash, 150 Ga. App. 589, 591 (4) (258 SE2d 271) (1979).

“Want of probable cause is the gravamen of an action for malicious prosecution; and there can be no recovery by the plaintiff when there was any probable cause for the prosecution, even though it may appear that the prosecutor was actuated by improper motives. [Cits.]”

Tanner-Brice Co. v. Barrs, 55 Ga. App. 453, 454 (5) (190 SE 676) (1937).

Furthermore, [t]he burden of proving the want of probable cause [at trial] is on the plaintiff, and he does not in any reasonable sense carry this burden unless he shows by his evidence that, under the facts as they appeared to the prosecutor at the time of the prosecution, the prosecutor could have had no reasonable grounds for believing the plaintiff to be guilty of the charge for which he was prosecuted.

(Citations and punctuation omitted; emphasis in original.) West v. Baumgartner, 228 Ga. 671, 676-677 (187 SE2d 665) (1972); see also Lovinger v. Pfeffer, 107 Ga. App. 636, 637 (1) (131 SE2d 137) (1963); Sirmans v. Peterson, 42 Ga. App. 707, 709 (157 SE 341) (1931).

The defendants placed themselves at risk of suit for malicious prosecution when they undertook criminal prosecution without adequate investigation to determine if there was a reasonable basis to believe probable cause existed. Ellis v. Knowles, supra at 42. Since probable cause was based upon the reasonable belief of the prosecutor at the time the warrant was taken out by them, then, in deciding if the belief is reasonable, the prosecutors must have determined “that [the] apparent state of facts which seems to exist after reasonable and proper inquiry [by the exercise of] the duty of caution and avoidance of haste [constituted probable cause].” (Emphasis supplied.) Auld v. Colonial Stores, 76 Ga. App. 329, 335 (2) (45 SE2d 827) (1947); see also Coleman v. Allen, 79 Ga. 637, 640-642 (5 SE 204) (1887); Sanfrantello v. Sears, Roebuck & Co., 118 Ga. App. 205, 207 (163 SE2d 256) (1968). If a reasonable person would have investigated to determine if probable cause existed prior to swearing out a warrant, then such failure to make an investigation may imply malice, as well as go to whether probable cause existed. See Medoc Corp. v. Keel, supra at 617 (2); Melton v. LaCalamito, 158 Ga. App. 820, 824 (282 SE2d 393) (1981).

In actions for malicious prosecution, the question is, not whether the plaintiff was guilty, but whether the defendant had reasonable cause to so believe — whether the circumstances were such as to create in the mind of the defendant a reasonable belief that there was probable cause for the prosecution. Probable cause is defined to be the existence of such facts and circumstances as would excite the belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted.

(Citations and punctuation omitted; emphasis in original.) Tanner-Brice Co. v. Barrs, supra at 453 (2); see also Wilson v. Wheeler’s, Inc., 190 Ga. App. 250 (378 SE2d 498) (1989).

In such actions, want of probable cause is a question for the jury and is a mixed question of law and fact. “Whether the circumstances alleged to show probable cause existed is a matter of fact, to be determined by the jury, but whether they amount to probable cause is a question of law for the court.” (Citations and punctuation omitted.) Wilson v. Wheeler’s, Inc., supra at 252 (1).

Probable cause in this regard may be defined as the existence of such facts and circumstances in the mind of a reasonable person, the reaction of those facts and circumstances upon the mind of such reasonable person, and the reasonable acting on the facts within the mind of the prosecutor, so as to cause a belief the person was guilty of the crime for which the prosecution was being pursued.

Booker v. Eddins, 183 Ga. App. 449, 451 (359 SE2d 211) (1987), overruled on other grounds, Cincinnati Ins. Co. v. Premier Tractor & Trailer Repair, 192 Ga. App. 243 (384 SE2d 449) (1989). Probable cause may not approach absolute certainty as to the facts, and it is not inconsistent with a considerable element of doubt; however, it must be more than mere conjecture or unfounded suspicion. The belief must be supported by appearances known to the defendant at the time, and a prosecution instituted without probable cause cannot be justified by anything, short of guilt in fact, which comes to the knowledge of the defendant later. The appearances must be such as to lead a reasonable man to set the criminal proceeding in motion.

The defendant is not necessarily required to verify his information, where it appears to be reliable; but where a reasonable man would investigate further before beginning the prosecution, he may be liable for failure to do so. All such factors as the reliability of the source, the availability of further information and the difficulty of obtaining it, the reputation of the accused, and his opportunity to offer an explanation, and the apparent necessity of prompt action, are to be considered in determining whether it was reasonable to act without verification. Prosser, [Law of Torts, § 119, 842 (4th ed. 1971)].

(Punctuation omitted.) Melton v. LaCalamito, supra at 824 (2) (b); see also Atlantic Zayre v. Meeks, supra at 269; Wilson v. Wheeler’s, Inc., supra at 253.

This is not a case where a pre-warrant investigation or other inquiry was conducted by the defendants or the police. Medoc Corp. v. Keel, supra at 617. This also is not a case where immediate action to catch the perpetrator demands action without time to investigate further. While there existed probable cause to reasonably believe that a perpetrator passed a bad check to the defendants, the identity of the perpetrator was unknown, although false identification was presented, giving a real “identity.” “[T]he prosecutor is under a duty of caution and avoidance of haste. [Cits.]” Sanfrantello v. Sears, Roebuck & Co., supra at 207; see also McGonagil v. Treadwell, 216 Ga. App. 850 (456 SE2d 260) (1995); Jones v. Parrish, 203 Ga. App. 566, 568-569 (417 SE2d 210) (1992).

Where there exist many people with the same name, where financial identity fraud is common, and where criminals passing bad checks conceal their true identity through various means, a reasonable person would not assume that the identity on the check was the same as the perpetrator without further investigation to verify that the perpetrator and the identity are the same person, because it is equally reasonable to believe that a criminal who would pass a bad check would also use a false I. D. or another’s identification as a means to conceal his true identity. See Kviten v. Nash, supra at 591 (5); Sirmans v. Peterson, supra at 709. Thus, the identity of the perpetrator was uncertain, requiring an investigation before a warrant was sworn out against an identity which may or may not be the perpetrator. See Melton v. LaCalamito, supra at 824. A & P’s own policy of sending a second letter if the first letter is returned indicates an awareness that there is a problem as to either identity or address. This need is further underscored by the need to attempt to call the person at home or work prior to taking out a warrant; the lack of a valid address and telephone numbers should indicate the need for further investigation.

It is to avoid misidentification that the law enforcement community verifies the identity of a suspected perpetrator prior to making an arrest. Criminals often seek to conceal their identity to avoid prosecution. To avoid making mistakes as to identity, law enforcement agencies are mandated after arrest in felony cases, and some misdemeanor cases, to provide the name used, known aliases, photographic identification records in conjunction with a physical description, fingerprints, date of birth, social security number, biographical history, criminal history, and possibly DNA, if available, to the Georgia Crime Information Center (“GCIC”) so that a positive identification can be made of suspects in the future by their GCIC identification number maintained by the GBI and cross-checked with the National Crime Information Center (“NCIC”) maintained by the FBI prior to arrest. OCGA §§ 35-3-4 (a) (1), (8); 35-3-36. To take out a warrant without knowing if the person who is named in the warrant is the perpetrator risks a finding of lack of probable cause by arresting the wrong person. See Ellis v. Knowles, supra at 42 (2).

In this case, the defendants took what is now known to be a forged signature with the real driver’s license number and social security number and assumed, without even a preliminary investigation, that the perpetrator and the stolen identity were the same person. See Melton v. LaCalamito, supra at 824. The defendants did not even obtain a physical description from the cashier who accepted the bad check or NationsBank’s customer service person who opened the checking account. Where, as in this case, there was no press of time or urgency, inquiry with the Department of Public Safety could have been made from the real license number and could have provided plaintiff’s address, or the plaintiff could have been found listed in the telephone directory. The simplest thing that the defendant could do would have been to report the crime to the police and allow them to use their investigative resources. Further, the return of the notice as being a false address should have put the defendants on further inquiry that the identity was also false, i.e., not the true identity of the perpetrator, so that further inquiry was necessary. The bedrock of probable cause is that “it must be more than mere conjecture or unfounded suspicion [that the suspected identity is, in fact, the perpetrator].” Melton v. LaCalamito, supra at 824 (2) (b); see also McGonagil v. Treadwell, supra at 854; Jones v. Parrish, supra at 568 (1). Here, there was nothing but an unverified suspicion that the perpetrator and the identity “Grant J. Nicholl” were one and the same person. This raised an issue of probable cause, because two reasonable inferences could be drawn from the presence of the name, “Grant J. Nicholl”, i.e., that this was the identity of the perpetrator or that it was not the identity of the perpetrator but either a false identity or a real identity used to conceal the perpetrator’s identity. See Kviten v. Nash, supra at 591; Sirmans v. Peterson, supra at 709.

These factors

raised a jury question as to whether a reasonably prudent person would have made further inquiry [to determine the identity of the perpetrator] before prosecuting. Sanfrantello v. Sears, Roebuck & Co., Inc., [supra]. Bi-Lo, Inc. v. Stanciel, 148 Ga. App. 614, 615 (251 SE2d 834) (1979).

(Punctuation omitted.) Melton v. LaCalamito, supra at 824 (2) (b); see also Atlantic Zayre v. Meeks, supra at 269. Such factors in this case go to the existence of probable cause and to the lack of probable cause, so that the jury may infer malice. See Atlantic Zayre, Inc. v. Meeks, supra at 269; Kviten v. Nash, supra at 591 (5). Instead of charging a known suspected perpetrator, the defendants charged an “identity.” Thus, the trial court erred in granting summary judgment. McGonagil v. Treadwell, supra at 854 (2); Jones v. Parrish, supra at 568-569 (1).

2. The second enumeration of error is that the trial court erred in finding that the defendants had immunity under OCGA § 16-9-20 (h) (1). We agree.

Prior to the codification of the Official Code of Georgia, OCGA § 16-9-20 (h) (1) was enacted by the General Assembly as part of the “Financial Institutions Code of Georgia.” Ga. L. 1974, pp. 705, 963-964, § 1. The caption stated the purpose of the Act to be “to provide certain protection to those initiating arrests and prosecutions on bad check charges.” Ga. L. 1974, pp. 705, 715.

In construing legislation, “nothing is more pertinent, towards ascertaining the true intention of the legislative mind in the passage of the enactment, than the legislature’s own interpretation of the scope and purpose of the act, as contained in the caption. The caption of an act of the legislature is properly an index to the contents of the statute as construed by the legislature itself, — a summarizing of the act, made right at the time when the discussion of every phase of the question is fresh in the legislative mind.” [Cits.]

Copher v. Mackey, 220 Ga. App. 43, 45 (4) (467 SE2d 362) (1996); see also Sovereign Camp Woodmen of the World v. Beard, 26 Ga. App. 130 (105 SE 629) (1921); Wimberly v. Ga. Southern &c. R. Co., 5 Ga. App. 263, 265 (2) (63 SE 29) (1908).

OCGA § 16-9-20 (a) (2) (A) reads

[n]otice mailed by certified or registered mail evidenced by return receipt to the person at the address printed on the instrument or given at the time of issuance shall be deemed sufficient and equivalent to notice having been received as of the date on the return receipt by the person making, drawing, uttering, executing, or delivering the instrument.

(Emphasis supplied.) While the notice is sent to the person whose address is on the check, the notice is effective only as to “the person making, drawing, uttering, executing, or delivering the instrument.” Id. OCGA § 16-9-20 (h) (1) reads

[a]ny party holding a worthless instrument and giving notice in substantially similar form to that provided in sub-paragraph (a) (2) (B) of this Code section shall be immune from civil liability for the giving of such notice and for proceeding as required under the forms of such notice . . . [i]n any civil action for damages which may be brought by the person who made, drew, uttered, executed, or delivered such instrument[.]

(Emphasis supplied.) See generally Tallman v. Hinton, 220 Ga. App. 23 (467 SE2d 596) (1996); Grand Union Co. v. Edwards, 217 Ga. App. 154 (456 SE2d 736) (1995). Thus, the General Assembly provided immunity only against suit brought by the person who made, drew, uttered, executed, or delivered the check, but did not exclude suit by an innocent party whose name was forged to a fraudulent account created in their identity. Such interpretation would constitute an impermissible judicial extension of the Act.

This was not a legitimate account that the plaintiff had opened and closed, leaving unused checks that a third party could use, but was a fraudulently created account which criminally used the plaintiffs identity. Further, this was not a case where plaintiff had actually received notice of the bad checks being passed on his account after it was closed. In this case, the facts and circumstances did not clearly come within the express language of the immunity dealing with closed accounts. Therefore, Grand Union Co. v. Edwards, supra, is distinguished from this case, both on the law and on the facts. OCGA § 16-9-20 (h) (1); Grand Union Co. v. Edwards, supra at 155-156.

Clearly and unambiguously, the immunity under OCGA § 16-9-20 (h) (1) applies only to suits by those who “made, drew, uttered, executed, or delivered such instrument,” and not to persons who were the victim of “financial identity fraud.” See OCGA § 1-3-1 (a), (b); Tallman v. Hinton, supra at 25. “Statutes should be read according to the natural and most obvious import of the language, without resorting to subtle and forced constructions, for the purpose of either limiting or extending their operation.” (Citations and punctuation omitted.) Burbridge v. Hensley, 194 Ga. App. 523, 524 (1) (391 SE2d 5) (1990). This immunity is now part of a criminal statute and is also in derogation of common law; therefore, the Act must be strictly construed against the person seeking its protection and cannot be extended by judicial construction. See OCGA § 1-3-1; Atlantic Coast Line R. Co. v. State, 135 Ga. 545, 561-562 (3) (69 SE 725) (1910), aff'd, 234 U. S. 280 (34 SC 829, 58 LE 1312) (1914); Holland v. State, 34 Ga. 455, 457-458 (1866). “[W]here a statute gives a right which did not exist at common law, it must be limited strictly to the meaning of the language employed, and not extended beyond the plain and explicit terms of the statute.” (Citations omitted.) Honeycutt v. Edwards, 136 Ga. App. 486, 487 (1) (221 SE2d 678) (1975); see also Heyman v. Heyman, 19 Ga. App. 634 (92 SE 25) (1917); Haralson v. Speer, 1 Ga. App. 573, 575 (58 SE 142) (1907).

Further, OCGA § 16-9-20 (h) (1) must be construed in pari materia with OCGA § 16-9-120 et seq., the Financial Identity Fraud Act. When the General Assembly passed the Financial Identity Fraud Act, it was aware that perpetrators were fraudulently using victims’ financial identities to perpetrate crimes against victims and third parties, using the victims’ identities. However, the General Assembly did not intentionally extend immunity under OCGA § 16-9-20 (h) (1) to include victims who had their identities stolen to create false checking accounts and to pass bad checks using the fraudulently obtained identities. See generally Monticello, Ltd. v. City of Atlanta, 231 Ga. App. 382, 383-384 (499 SE2d 157) (1998); Ga. Pub. Svc. Comm. v. ALLTEL-Ga. Commun. Corp., 227 Ga. App. 382, 385 (1) (489 SE2d 350) (1997). Nor did the General Assembly in any of the many recent amendments to OCGA § 16-9-20 (h) (1) expressly extend such immunity. See Ga. L. 1996, pp. 748, 760-761, § 10; 1014-1015, §§ 1, 2; Ga. L. 1995, pp. 910-911, §§ 1, 2; Ga. L. 1994, pp. 1787, 1788-1795, § 3; Ga. L. 1990, pp. 8, 15, § 16.

In 1974, when it created the immunity, the General Assembly was faced only with the problem of tort actions for prosecution of bad checks, arising from making, drawing, uttering, executing, and delivering bad checks. By 1998, the General Assembly was faced with many innocent victims who had their financial identities fraudulently used by criminals. The General Assembly intentionally did not extend immunity to encompass such victims of Financial Identity Fraud because, in order to establish probable cause, reasonable inquiry to verify the perpetrator’s identity and to avoid further victimizing the innocent victim should be made by anyone seeking to prosecute. “The court also considers the law as it existed before the statute was passed and identifies the mischief sought to be corrected. [Cit.]” Telecom USA v. Collins, 260 Ga. 362, 364 (1) (393 SE2d 235) (1990); see also Ga. Pub. Svc. Comm. v. ALLTEL-Ga. Commun. Corp., supra. Thus, the General Assembly must be presumed to have acted with full knowledge of the existing law, OCGA § 16-9-20 (h) (1), and the mischief sought to be corrected, financial identity fraud. Copher v. Mackey, supra at 44 (2).

Decided May 11, 1999.

Simmons & Simmons, Annie R. Simmons, for appellant.

Donahue, Hoey, Rawls, Skedsvold & Richards, Charles H. Richards, Jr., Dana F. McBride, for appellees.

Therefore, for all of the foregoing reasons, the General Assembly did not intend OCGA § 16-9-20 (h) (1) to give immunity against actions by persons whose identities had been fraudulently used. The trial court erred in granting summary judgment based upon a judicial extension of immunity under OCGA § 16-9-20 (h) (1).

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

       Although the effective date of OCGA § 16-9-120 et seq., Ga. L. 1998, p. 865, § 2, was July 1, 1998, long after the alleged tort occurred, such Act may be considered in determining the intent of the General Assembly in earlier legislation. See Porquez v. Washington, 268 Ga. 649, 652, n. 2 (492 SE2d 665) (1997).


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A99A0316.
    THE STATE v. HAMILTON.
    (517 SE2d 583)
   Smith, Judge.

Joseph Hamilton, Jr. entered a negotiated plea of guilty to armed robbery, aggravated assault, and possession of a sawed off shotgun. The trial court sentenced him to ten years for armed robbery, eleven years for aggravated assault, and five years on the firearm charge, all to be served concurrently. Under the provisions of the First Offender Act, OCGA § 42-8-60 (a), the trial court allowed Hamilton to serve the remainder of his sentence on probation after serving ten years, the mandatory minimum sentence for armed robbery. The State brings this appeal under the authority of State v. Johnson, 183 Ga. App. 236 (358 SE2d 840) (1987), alleging that under this court’s holding in Fleming v. State, 233 Ga. App. 483 (504 SE2d 542) (1998), the sentence was illegal and therefore completely void. See State v. Stuckey, 145 Ga. App. 434 (243 SE2d 627) (1978). We agree and remand for resentencing.

In Fleming, the appellant contended, relying upon State v. Allmond, 225 Ga. App. 509 (484 SE2d 306) (1997), that the trial court had erred in refusing to sentence him under the First Offender Act and allow him to serve less than the mandatory minimum number of years prescribed for the crime in OCGA § 17-10-6.1 (b). We held that the trial court properly refused to do so, because applying the First Offender Act in this manner conflicted with the clear expressed intent of the General Assembly in amending both the First Offender Act and the Sentence Reform Act of 1994. We overruled Allmond, holding that the General Assembly had made clear its desire that the First Offender Act not be applied to anyone found guilty of a “serious violent felony,” as defined in OCGA § 17-10-6.1, the Sentence Reform Act of 1994.

Armed robbery is such a “serious violent felony.” OCGA § 17-10-6.1 (a) (2). And in this case, the trial court, no doubt cognizant of the legislature’s actions, imposed a sentence that provides for the mandatory minimum to be served. In fact, the trial court has presented us with the exact situation discussed by Judge Eldridge in his special concurrence in Fleming: a sentence that harmonizes the Sentence Reform Act and the First Offender Act. The sentence imposed recognizes

the co-existence of the mandatory minimum sentence required under the Sentence Reform Act and the ability of a first time offender to escape the permanent consequences thereof after serving the mandatory sentence, by imposition of such sentence under the First Offender Act: a win-win situation.

Fleming, supra at 492, Eldridge, J., concurring specially.

But the legislature has stated explicitly in amending OCGA § 17-10-6.1 that

[n]o person convicted of a serious violent felony as defined in subsection (a) of this Code section shall be sentenced as a first offender pursuant to Article 3 of Chapter 8 of Title 42, relating to probation for first offenders, or any other provision of Georgia law relating to the sentencing of first offenders.

(Emphasis supplied.) OCGA § 17-10-6.1 (b). Regardless of the wisdom of harmonizing the two statutes, therefore, having ascertained the intent of the legislature, we must apply its will. See Burleson v. State, 233 Ga. App. 769 (505 SE2d 515) (1998). This case must be remanded for resentencing in a manner consistent with this opinion.

Case remanded for resentencing.

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

Decided May 11, 1999.

Spencer Lawton, Jr., District Attorney, Ann M. Elmore, Assistant District Attorney, for appellant.

Douglas G. Andrews, for appellee.

       OCGA § 17-10-6.1 (b) also provides that the “State of Georgia shall have the right to appeal any sentence which is imposed by the superior court which does not conform to the provisions of this subsection in the same manner as is provided for other appeals by the state in accordance with Chapter 7 of Title 5, relating to appeals or certiorari by the state.”


author: Judge Harold R. Banke.

text:
    A99A0508.
    THOMAS v. THE STATE.
    (517 SE2d 585)
   Judge Harold R. Banke.

Christopher Thomas, along with his co-defendant, Darelle Ruffin, was convicted of kidnapping and armed robbery. On appeal, Thomas enumerates ten errors.

The underlying crimes occurred shortly after midnight when the victim went to an automobile sales lot to look at a truck he was interested in purchasing. While doing so, a “little red compact car” occupied by four persons pulled in behind him. Brandishing guns, two of the men approached the victim, and one commanded, “ [d]on’t you run, mother fu — .” The other two individuals also approached and a gun was placed to the victim’s head. After he was pushed into his assailants’ vehicle, he saw one of the men go into his car. While being ordered to lie on the backseat of his assailants’ car, the victim’s wallet and coins were taken from his pocket. They drove the victim down a nearby dirt road, took him out of the vehicle, and ordered him to lie face down on the ground. One of the men fired a single shot next to the victim’s head before fleeing. The victim sought help at a nearby convenience store.

Almost immediately after the victim’s 911 call, Officer Mark Smith intercepted a red Toyota Corolla belonging to Thomas, which matched the description on a broadcast lookout, and which was occupied by Thomas and three others. Although the driver managed to flee, the remaining individuals including Thomas were instructed to lie on the ground. From the vehicle, investigators recovered two loaded pistols as well as several credit cards issued in the name of the victim. A GBI agent took statements from all four suspects, including Thomas. Defendants James Keaton and Kevin Payne gave full confessions which implicated Thomas. A search of Thomas’ red Toyota revealed several other items belonging to the victim including a pool cue and some cassettes. Held:

1. Thomas contends the evidence was not sufficient to sustain his convictions for kidnapping and armed robbery within the meaning of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). We disagree. In addition to the testimony from the victim and the police, two of Thomas’ fellow co-indictees entered guilty pleas and implicated him as a participant. At a minimum, the evidence proved that Thomas was not merely present but was a party to the crimes. Lunz v. State, 174 Ga. App. 893, 895 (1) (332 SE2d 37) (1985); see Kimbro v. State, 152 Ga. App. 893, 894 (264 SE2d 327) (1980).

2. Thomas contends that the trial court abused its discretion in ruling on the defendants’ motion based on Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986) relating to the State’s purportedly improper use of peremptory strikes. However, in Ruffin v. State, 232 Ga. App. 614, 615 (2) (502 SE2d 551) (1998), the appeal of Thomas’ co-defendant, we thoroughly considered and rejected the same arguments. Having reviewed the transcript, we adopt the reasoning and legal analysis of that case. After considering the trial court’s findings with great deference, we cannot say they were clearly erroneous. Hightower v. State, 220 Ga. App. 165, 166 (1) (469 SE2d 295) (1996).

3. The trial court properly granted the State’s request to cross-examine prosecution witnesses Kevin Payne and James Keaton.

At a prior hearing, both witnesses entered guilty pleas and gave sworn testimony implicating Thomas. But when called to testify in this case, both recanted their earlier sworn statements and developed memory problems. A trial court is authorized to permit leading questions by the party who called the witness when “from the conduct of the witness . . . justice shall require it.” OCGA § 24-9-63; see Hamby v. State, 158 Ga. App. 265 (1) (279 SE2d 715) (1981).

4. Thomas asserts that the court intimidated a witness, James Keaton, in the presence of the jury in violation of OCGA § 17-8-57. The record belies this allegation. Before giving instructions to the witness, the court excused the jury. Notwithstanding Thomas’ claim to the contrary, the court did not express or intimate any opinion as to his guilt. There was no violation of OCGA § 17-8-57. See Jones v. State, 268 Ga. 12, 15-16 (5) (483 SE2d 871) (1997).

5. Thomas contends that the court impermissibly assisted the State by providing instructions about the proper way to impeach a witness. Thomas’ failure to raise and preserve this issue at trial forecloses any appellate review. Gude v. State, 213 Ga. App. 573, 575 (2) (445 SE2d 355) (1994).

6. We reject Thomas’ claims that the trial court improperly permitted a prejudicial show of force by law enforcement officers.

Thomas bore the burden of establishing that the security measures which were utilized were so excessive and so inherently prejudicial as to have posed an unacceptable threat to his right to a fair trial. Young v. State, 269 Ga. 478, 479 (2) (499 SE2d 60) (1998). This he failed to do. The fact that two law enforcement officers provided an escort to a defense witness did not constitute an excessive showing of force, especially since this witness was under a ten-year sentence for armed robbery and kidnapping. See Chancey v. State, 256 Ga. 415, 435 (9) (349 SE2d 717) (1986).

7. Thomas failed to show error in the trial court’s application of the rule of sequestration.

After being selected and sworn, the jury was excused for the noon recess. At this point, defense counsel requested that the rule of sequestration be invoked. OCGA § 24-9-61. The court agreed and indicated that this would occur at 1:15 p.m., the time announced for the trial to resume. Although Thomas speculates that several witnesses may have conferred with the prosecutor during the lunch break, Thomas’ acquiescence to the court’s ruling leaves nothing for our review. See O’Kelley v. State, 175 Ga. App. 503, 504-505 (1) (333 SE2d 838) (1985).

8. Thomas contends that the following instruction was error: “[i]f, after giving consideration to all of the facts and circumstances of the case, your minds are wavering and unsettled and unsatisfied, then that is a doubt of the law and you should acquit the defendant.” He claims that “must acquit” not “should acquit” is the required language. We previously considered and rejected this contention in Tyson v. State, 217 Ga. App. 428, 429-430 (2) (b) (457 SE2d 690) (1995). See Ruff v. State, 212 Ga. App. 245 (1) (441 SE2d 534) (1994).

9. Thomas asserts that the court erred by charging: “[y]ou are going to determine the law and the facts in this case.” Without question, it is the duty of jurors to take the law from the trial court’s instructions and apply that law to the facts proved by the evidence. State v. Freeman, 264 Ga. 276, 277 (444 SE2d 80) (1994). Nevertheless, having reviewed the charge as a whole, we do not find that the trial court’s apparent verbal misstatement would so clearly have misled or confused the jury as to have constituted reversible error. Matthews v. State, 268 Ga. 798, 805 (7) (c) (493 SE2d 136) (1997); Williams v. State, 267 Ga. 771, 773 (2) (a) (482 SE2d 288) (1997).

10. Thomas contends that instructing the jury on corroboration was error because the charge presupposed that he was an accomplice to Payne and Keaton. The record refutes this claim. The court charged, “[w]hether or not any witness in this case was an accomplice, is a question for you, the jury, to determine, from the evidence in this case.” The charge at issue was adjusted to the evidence and was virtually identical to the pattern instruction on accomplice testimony corroboration. See Suggested Pattern Jury Instructions, Vol. II, pp. 52-53 (1991). We find no error. Edmond v. State, 267 Ga. 285, 287-288 (3) (476 SE2d 731) (1996).

Judgment affirmed.

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

Decided May 11, 1999 — Cert. applied for.

Ronnie J. Lane, for appellant.

J. Brown Moseley, District Attorney, for appellee.


author: McMurray, Presiding Judge.

text:
    A99A0524.
    SALTERS v. THE STATE.
    (517 SE2d 593)
   McMurray, Presiding Judge.

Defendant was tried before a jury and convicted of aggravated child molestation, aggravated sexual battery and child molestation. The evidence which authorized these convictions reveals that defendant sexually molested an eleven-year-old girl (“the victim”) while he was at the victim’s mother’s home baby-sitting Amber Halfacre’s two-year-old son. Mis. Halfacre testified that she returned to the victim’s mother’s home with her friend, Cory Spivey, and caught defendant in bed with the victim — with his (defendant’s) pants down. Ms. Halfacre testified that the victim informed her that defendant had committed acts which constitute the crimes charged. Cory Spivey testified that he, too, observed defendant in bed with the victim; that defendant jumped out of bed and began adjusting his pants as soon as he and Ms. Halfacre entered the room, and that he observed defendant’s naked buttocks as defendant was pulling up his pants. Mr. Spivey further testified that the victim fled to a nearby closet as soon as he opened the bedroom door, he then noticed that the victim was only wearing undergarments. The victim testified that defendant coerced her into the bedroom (where Ms. Halfacre’s two-year-old son was napping) and committed acts which constitute the crimes charged.

This appeal followed the denial of defendant’s motion for new trial. Held:

1. The victim’s testimony is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of aggravated child molestation, aggravated sexual battery and child molestation. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Swift v. State, 229 Ga. App. 772 (1), 773 (495 SE2d 109).

2. Defendant contends the trial court erred in admitting certain proof as similar transaction evidence without making the requisite findings under Williams v. State, 261 Ga. 640 (409 SE2d 649). Specifically, defendant challenges the admission of testimony that he took the victim to his home on two or three occasions prior to commission of the charged offenses, led the child to his bedroom, locked the door and (according to the victim) kissed her mouth. Defendant also challenges admission of the victim’s 15-year-old sister’s testimony that defendant tried to persuade her, after an argument with her boyfriend, to leave home and run away with him to Alabama.

Decided May 11, 1999.

Louis M. Turchiarelli, for appellant.

Garry T. Moss, District Attorney, Rochelle L. Strausner, Assistant District Attorney, for appellee.

The rules regarding the admissibility of prior acts may be liberally extended in the area of sexual offenses involving children. See Swift v. State, 229 Ga. App. 772, 773 (2), 774 (d), supra. With this perspective, we find that the prior acts in question have a logical connection to the offenses charged in that they show either defendant’s preference to a certain type of victim, his bent of mind, or his modus operandi. Id. at 774-775, supra; Perkins v. State, 224 Ga. App. 63, 65 (3) (479 SE2d 471). The trial court therefore did not err in admitting the proof in question as similar transaction evidence. But assuming the contrary, we find it is highly probable that admission of this evidence did not contribute to the jury’s verdict as the evidence of defendant’s guilt is overwhelming. Barrett v. State, 263 Ga. 533, 535 (2) (436 SE2d 480), overruled on other grounds in Wall v. State, 269 Ga. 506, 509 (500 SE2d 904).

This enumeration of error provides no basis for reversal.

3. Citing Prickett v. State, 220 Ga. App. 244, 245 (2) (469 SE2d 371), defendant contends the trial court did not adjust its similar transaction jury instructions to the facts and circumstances in the case sub judice.

In Prickett, this Court reversed the defendant’s conviction because the trial court failed to instruct the jury as to the limited purposes and use of similar transaction evidence. The case sub judice is different because the trial court twice charged the jury as to the limited purposes and use of such evidence in substantial conformity with the pattern jury instruction provided in the Council of Superior Court Judges’ Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, Part 3 (O) (2nd ed.), p. 25. Defendant does not show that he requested the trial court to give any other instruction as to law regarding the purposes and use of similar transaction evidence. Under such circumstances, defendant cannot complain that the trial court should have given a different charge on this subject. See State v. Belt, 269 Ga. 763 (505 SE2d 1).

Judgment affirmed.

Andrews and Ruffin, JJ., concur.


text:
    A99A0571.
    McCLAMMY v. THE STATE.
    (517 SE2d 588)
    Decided May 11, 1999.

      Fleming, Blanchard, Jackson & Durham, Richard A. Ingram, Jr., for appellant.
   Eldridge, Judge.

The defendant, Thad Christopher McClammy, a/k/a Thad Christopher McClamey, appeals from his February 1997 conviction for armed robbery. We affirm.

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

(Citations and punctuation omitted.) Redd v. State, 232 Ga. App. 666 (502 SE2d 467) (1998). See also Cummings v. State, 233 Ga. App. 806 (505 SE2d 73) (1998); Postell v. State, 233 Ga. App. 800 (505 SE2d 782) (1998); Howard v. State, 233 Ga. App. 724 (505 SE2d 768) (1998); Lester v. State, 226 Ga. App. 373, 376 (2) (487 SE2d 25) (1997).

The facts of this case are presented in our recent decision in Hudson v. State, 234 Ga. App. 895 (508 SE2d 682) (1998), which controls here. In that case, this Court upheld the armed robbery conviction of McClammy’s co-defendant, George Sherman Hudson III, after finding that sufficient evidence was presented at trial to support the conviction. Id. at 897-898 (1). The same evidence is sufficient to support McClammy’s conviction, as well as the trial court’s denial of his motion for directed verdict and motion for new trial. There was no error.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.


author: Johnson, Chief Judge.

text:
    A99A0988.
    CHAMPION v. THE STATE.
    (517 SE2d 595)
   Johnson, Chief Judge.

A jury found Michael Champion guilty of aggravated assault and possession of a firearm by a convicted felon. Champion appeals. We affirm.

Viewed in a light most favorable to support the jury’s verdict, the evidence shows that on April 25, 1997, a car in which Champion was riding pulled up to the victim. Champion and the victim had been friends for years. Champion started arguing with the victim, who responded briefly and continued walking home. After following the victim for a distance, Champion got out of the car, argued more with the victim, and fired a gun at the victim. At the time, the victim had made no verbal threats, no aggressive gestures, and was unarmed.

Both the victim and an eyewitness identified Champion and gave consistent unimpeached versions of the events. The state presented other evidence, including Champion’s prior conviction for reckless conduct and the investigating officer’s testimony that Champion had committed a similar crime in 1993.

After Champion was convicted of aggravated assault, the jury heard testimony from another eyewitness that Champion pulled a gun and fired it at the victim. This testimony, coupled with evidence that Champion had previously been convicted of burglary and sodomy, formed the basis for Champion’s conviction of possession of a firearm by a convicted felon.

1. Champion contends he received ineffective assistance of counsel because trial counsel: (1) failed to conduct interviews with him and other witnesses before trial; and (2) failed to file a written request for a contemporaneous limiting instruction on the similar transaction evidence. We disagree.

In order to establish ineffective assistance of trial counsel, Champion must show both that trial counsel’s performance was deficient and that the deficient performance prejudiced the defense. Herndon v. State, 235 Ga. App. 258 (509 SE2d 142) (1998). There is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance and that any challenged action might be considered sound trial strategy. Id. at 258-259.

(a) The record shows that trial counsel conducted a one and one-half to two hour interview with Champion before trial. Thus, Champion’s contention that counsel did not interview him is not supported by the record. In addition, the lawyer’s investigator spoke with Champion and relayed information back to the lawyer. Champion has therefore failed to show harm from any alleged deficiency in the extent to which trial counsel interviewed him. See Aleman v. State, 227 Ga. App. 607, 611 (3) (a) (489 SE2d 867) (1997).

Champion also asserts that he was prejudiced because trial counsel did not search for and interview exculpatory witnesses. However, trial counsel testified at the motion for new trial hearing that Champion did not identify any exculpatory witnesses and trial counsel could not think of any exculpatory witnesses who might have been present. Moreover, Champion failed to make any showing of the substance of the testimony of any uncalled witnesses. Without such evidence, it is impossible for this court to conclude that any witnesses who were not called would have given testimony favorable to Champion and that the result of the proceedings would have been affected. Goodwin v. Cruz-Padillo, 265 Ga. 614, 615 (458 SE2d 623) (1995).

(b) Champion has not shown that trial counsel rendered ineffective assistance solely because he failed to request a contemporaneous limiting instruction to the jury regarding evidence of similar transactions. See Smith v. State, 270 Ga. 68, 70 (3) (508 SE2d 145) (1998); Fuller v. State, 235 Ga. App. 436 (509 SE2d 79) (1998). Decisions as to which charges will be requested and when they will be requested fall within the realm of trial tactics and strategy. They provide no grounds for reversal unless such tactical decisions are so patently unreasonable that no competent attorney would have chosen them. See Herndon, supra at 259.

It should be noted that in this case the jury was given a proper limiting instruction on the similar transaction evidence during the trial court’s final instructions to the jury before the jury began its deliberations. This limiting instruction was nearly contemporaneous because the similar transaction testimony was the last testimony elicited at trial. Based on the circumstances of this case, including the fact that a limiting instruction regarding the similar transaction evidence was given during the trial court’s general charge to the jury shortly after the evidence was introduced, Champion has failed to establish that, but for his trial counsel’s failure to request a contemporaneous limiting instruction, the outcome of the trial would have been different. The trial court did not err in denying Champion’s motion for a new trial on this ground. We feel compelled to note, however, that due to the very nature of similar transaction evidence and the great risk that this evidence can be misused by the jury, the better practice regarding instructions to the jury limiting their consideration of similar transaction evidence is to give the limiting instruction both immediately prior to the similar transaction testimony and during the trial court’s final instructions.

Decided May 11, 1999.

William P. Nash, Jr., for appellant.

J. Gray Conger, District Attorney, for appellee.

2. Champion contends that the trial court erred by allowing the state to present evidence of the contents of an arrest warrant to prove the similar transaction. This enumeration of error lacks merit.

According to Champion, the investigating officer’s testimony at trial as to the contents of the arrest warrant constituted inadmissible hearsay. However, Champion fails to point to a specific place in the record where we can locate this purported hearsay. Our review of the record shows that, contrary to Champion’s assertion, the officer did not testify as to the contents of the arrest warrant, but merely testified as to his investigation of the incident and the fact that he obtained an arrest warrant for Champion. A certified copy of Champion’s conviction was tendered into evidence. There was no error.

Judgment affirmed.

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


text:
    A99A1096.
    In the Interest of C. N. H. et al., children.
    (517 SE2d 589)
   Johnson, Chief Judge.

The mother of C. N. H., A. R. T. H., K. M. H., and J. E. H. appeals from a juvenile court order terminating her parental rights. She contends the trial court erred in determining that the cause of the children’s deprivation is likely to continue or will not likely be remedied. For reasons which follow, we affirm.

On appeal, we view the evidence in a light most favorable to the juvenile court’s order and determine whether a rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights should have been terminated; we do not weigh the evidence and must defer to the trial judge as the factfinder. In the Interest of D. L. N, 234 Ga. App. 123, 125 (2) (506 SE2d 403) (1998). We find no error and affirm the decision of the juvenile court.

The decision to terminate parental rights involves a two-step process. First, the juvenile court must determine whether there is clear and convincing evidence of parental misconduct or inability, as defined in OCGA § 15-11-81 (b). Parental misconduct is found when the child is deprived, the cause of the deprivation is lack of proper parental care or control, the cause of the deprivation is likely to continue or will not likely be remedied, and the continued deprivation will cause or is likely to cause serious harm to the child. OCGA § 15-11-81 (b) (4) (A). Second, if the juvenile court finds clear and convincing evidence of parental misconduct or inability, it must consider whether termination of parental rights is in the best interest of the child, considering the child’s physical, mental, emotional, and moral condition and needs, including the need for a secure, stable home. OCGA § 15-11-81 (a). See In the Interest of B. D., 236 Ga. App. 119 (511 SE2d 229) (1999).

Viewing the evidence in favor of the juvenile court’s findings, the record shows that the Walker County Department of Family & Children Services (the “Department”) became involved with six-year-old C. N. H., five-year-old A. R. T. H., three-year-old K. M. H., and one-year-old J. E. H. in August 1994 after receiving several child protective services referrals. The mother signed a case plan in September 1994. In November 1994, the mother left all four children with their grandmother, who called the Department and said she could not care for the children. The juvenile court held an adjudicatory hearing, found the children deprived, and awarded temporary legal custody of the children to the Department. The court allowed the mother to retain physical custody of the children. The Department developed a case plan requiring the mother to attend counseling classes, parenting classes and AA meetings; stabilize by taking her medication; leave the children with a reliable baby sitter; maintain a safe, stable home; and refrain from drinking alcohol around the children.

On December 9, 1994 the juvenile court held a hearing to review its deprivation order. The mother stipulated to the children’s deprivation.

In April 1995, the mother was arrested for driving with defective equipment, a suspended license and no proof of insurance. She agreed that the Department should obtain physical custody of the children because she needed to become financially stable. The children were removed from her home. A May 1995 case plan required the mother to obtain a safe, stable home environment; acquire and demonstrate appropriate parenting skills; become financially stable; become alcohol-free; and visit the children regularly.

In November 1995, the juvenile court again awarded physical custody of K. M. H. and J. E. H. to the mother. However, in April 1996, the mother was arrested, charged, and later convicted of driving under the influence of alcohol and driving with a suspended license. K. M. H. was in the car at the time of the mother’s arrest. K. M. H. and J. E. H. were removed from her home. The mother was fined and placed on probation, but fled the area, failed to show up at probation hearings and failed to pay the fines.

On August 23, 1996, the court entered an order directing the mother to pay $7.50 per child per week in child support. She disregarded this order and paid no child support until January 1998.

In September 1996, the mother and her boyfriend moved to Tennessee, then later South Carolina. Beginning in October 1996 the citizen review panels recommended that the mother’s parental rights be terminated and that the children be placed for adoption. The Department filed a petition to terminate the mother’s parental rights, and the mother and her boyfriend moved back to Georgia. A hearing was held on April 2, 1998.

At the hearing, the foster mother for K. M. H. and J. E. H. testified that K. M. H. was very hyperactive, confused, and had been diagnosed with attention deficit disorder. K. M. H. was being given Ritalin to control her behavior and another medication to help her sleep. The foster mother testified that J. E. H., who was nearly four years old, was not toilet-trained, could not feed or dress himself, and had severe speech and behavior problems. However, his behavior was improving with medications. The foster mother testified that the mother only visited the children two or three times and that after the visits, K. M. H. misbehaved and became angry. She stated that both children needed a stable home with constant supervision.

The foster mother for C. N. H. and A. R. T. H. testified that both children required a strict routine and constant supervision. A. R. T. H. had severe behavioral problems and was diagnosed with manic depressive disorder. She related that A. R. T. H. was very aggressive and threw tantrums, but was taking medication to control her depression and behavior problems. C. N. H. was also diagnosed with manic depressive disorder. The mother had not visited the children since C. N. H. was placed in the foster home 14 months earlier.

The mother’s caseworker testified that the mother failed to comply with the requirements of her case plan. She did not provide verification that she completed parenting classes or attended AA meetings. She failed to remain sober and was arrested for DUI on April 16, 1996, one day after a citizen panel review. A parent aide worker quit because the mother refused to follow her recommendations. The caseworker further testified that the mother had neglected to maintain a safe, stable home and failed to become financially stable. The mother also did not regularly visit the children after she moved from Georgia in September 1996. She further testified that the children’s deprivation would continue if they were returned to the mother because of the mother’s inability to provide the stable home that the children needed.

The mother’s boyfriend testified that he and the mother lived in approximately eight residences during the previous two years. Neither he nor the mother had a driver’s license due to DUI convictions. While he hoped to marry the mother, she was still married to another man.

The mother admitted that when the Department obtained custody of the children, she attempted suicide and was admitted to a mental hospital. According to the mother, she lived in a one-bedroom apartment and worked at a fast food restaurant. She produced evidence that she had attended three AA meetings in January 1998. She also produced evidence that she had paid $75 in child support in January 1998. The mother admitted that she overdosed on antidepressant drugs two weeks before the termination hearing. She last visited the children in September 1996. Based on all the evidence, the juvenile court entered an extremely thorough order on April 15, 1998 terminating the mother’s parental rights.

1. The mother does not argue that the children are deprived, but merely contends the evidence was insufficient to show that the cause of the deprivation is likely to continue or will not likely be remedied, as required by OCGA § 15-11-81 (b). This contention is without merit.

First, evidence of past conduct may be considered in determining whether the deprivation is likely to continue if the children are returned to their mother. See In the Interest of B. D., supra at 121 (2). The past conduct of the mother in this case certainly justifies such a prediction. Second, the record is replete with examples of the mother’s failure to cooperate with the Department’s case plan and with court orders. Moreover, she overdosed on a prescription medication only two weeks before the termination hearing.

The mother’s belated efforts in January 1998 to comply with the Department’s plan by attending AA meetings and finding a house and a job, as well as her efforts in January 1998 to comply with the court order regarding child support payments, were too little, too late. This court has repeatedly recognized that “[t]he decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.” (Citation and punctuation omitted.) In the Interest of S. J. C., 234 Ga. App. 491, 494 (1) (507 SE2d 226) (1998). The facts show that the mother is clearly unable to provide the constant supervision and stable home that the children require, especially in light of the children’s special needs.

2. The mother next asserts that the evidence was insufficient to support a finding that terminating her parental rights was in the best interest of the children. We do not agree. “Those same factors which show the existence of parental misconduct or inability can also support a finding that the termination of parental rights of the defaulting parent would be in the child’s best interest.” (Citations and punctuation omitted.) In the Interest of B. D., supra at 121 (3).

Decided May 11, 1999.

James I. Collins, Jr., for appellant.

Thurhert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Stephanie B. Hope, Assistant Attorneys General, Steven M. Ellis, for appellee.

More than clear and convincing evidence exists to support the finding that termination of the mother’s rights was in the best interest of the children. The children are well cared for in stable foster homes and clearly need stable homes and close supervision. Education and therapeutic services are being provided and medication is being administered and monitored if necessary. The few times the mother did visit her children were extremely disruptive. Termination of the mother’s parental rights was clearly in the best interest of the children. Id.

Based on the foregoing, the trial court did not err in denying the mother’s motion for new trial.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

       This deprivation order was extended following another hearing on May 2, 1996. During this hearing, the mother agreed to allow the Department to maintain temporary custody and control of the children.

       These goals were maintained during the next two years, and on April 8, 1997 the Department added the goal of cooperating with child support enforcement to determine child support payments.


text:
    A99A1636.
    WOODS v. THE STATE.
    (517 SE2d 592)
   McMurray, Presiding Judge.

Defendant was charged with three counts of child molestation and bond was set by the superior court at $100,000, i.e., “$50,000.00 for Count 1; $25,000.00 for Count 2; and $25,000.00 for Count 3.” After trial, the jury was “unable to reach a verdict, [and] the court declare [d] a mistrial.” In December 1998, defendant moved for a reduction in bond pending retrial, scheduled for April 1999. The superior court reduced bond for Count 1 from $50,000 to $25,000, but left bond at $25,000 for each of Counts 2 and 3. From this order granting in part his motion for reduction in bond, defendant brings this direct appeal. Held-.

The order granting in part defendant’s motion for reduction in bond for the three indicted felony offenses is in the nature of an interlocutory order and is not enumerated in OCGA § 5-6-34 (a) as directly appealable. Since defendant has not followed the interlocutory appeal procedures set forth in OCGA § 5-6-34 (b), the appeal in Case No. A99A1636 must be dismissed. Howard v. State, 194 Ga. App. 857 (392 SE2d 562). Compare Wade v. State, 218 Ga. App. 377 (1) (461 SE2d 314) (outright denial of appeal bond directly appealable).

Decided May 11, 1999.

Walker L. Chandler, for appellant.

William T. McBroom III, District Attorney, for appellee.

Appeal dismissed.

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


author: Andrews, Judge.

text:
    A99A0276.
    SNIDER v. THE STATE.
    (516 SE2d 569)
   Andrews, Judge.

Charles Michael Snider appeals from the denial of his motion for new trial after his conviction of guilty but mentally ill for child molestation, invasion of privacy, and cruelty to children.

1. Snider’s third, fourth and fifth enumerations challenge the sufficiency of the evidence regarding the child molestation (Count 1) and invasion of privacy (Count 2) convictions and are addressed first.

Count 1 alleged that between May 12, 1989, and October 4, 1990 (the day before K S. turned 14), Snider did “immoral and indecent acts to and in the presence of [K. S.], a child under the age of . . . (14)” with intent to arouse and satisfy his sexual desires. Count 2 alleged that between May 12,1992, and June 24,1994, Snider did “go on or about the premises of and the private place of another, . . . : the bedroom of [K. S.], for the purpose of secretly observing her activities. . . .”

Viewed with all inferences in favor of the jury’s verdict, the evidence was that K. S. was the adopted daughter of Snider, who married her mother in 1981 when K. S. was five years old. Snider met Mrs. Snider at a convention of singles held by their church, The Church of Jesus Christ of Latter Day Saints. The church practiced modesty, including the wearing by adult couples of “garments” given to them upon being married. The garments resembled underwear, extended to the knees, and were to be worn at all times unless bathing or swimming.

After Snider and Mrs. Snider married, he was transferred by the Air Force to England. While there, he repeatedly stood in his children’s bedroom window and exposed himself to a female neighbor “[t]o see if she’d . . . show herself to me.” He did not think there was anything wrong with it and described it as a “natural high, . . . look at what I’ve got, but you can’t have it.”

The family moved to Cherokee County, Georgia, in 1987 and lived on Hickory Road. At that house, K. S.’s bedroom and that of her parents were on the upper floor. K. S., who was 11 at this time and beginning to develop physically, began to see Snider completely unclothed lying on the bed or standing in the doorway of his bedroom, sometimes touching his genital area. She reported this to her mother who talked to Snider about it. He admitted that he had done this, and Mrs. Snider talked to church elders who counseled with Snider.

The family moved to another house in 1989 where the master bedroom was on the main level and the children’s bedrooms upstairs. In this house, it was necessary to walk by the master bedroom in order to get to the garage. K. S. continued to see Snider in his bedroom nude. He would make eye contact with her and then “freak out” and run into his bathroom. These incidents occurred once or twice a week from the time she was 11 until she was 14.

In August 1990, Mrs. Snider attended a weekend conference out of town and left K. S., then nearly 14 and fully physically developed, and her two younger brothers, Snider’s natural sons, with Snider. On Saturday morning, Snider decided to make breakfast for his children in the nude because it was “something different.” He went to K. S.’s bedroom door and knocked. K. S., in her t-shirt and shorts in which she slept, opened her door, saw him, slammed the door and remained in her room until late afternoon.

Thereafter, K. S. was suffering from a kidney infection and running a fever. She was told by Snider to get in a bathtub of cool water, which she did. She did not normally appear naked or bathe in front of Snider. Snider came into the bathroom and would not leave despite her protests. She asked for a towel, but instead he handed her three wash cloths with which she attempted to cover herself. He then sat on the side of the tub and swirled the water with his hand. He did not leave for approximately 30 minutes, after taking her temperature.

From the age of fourteen until sixteen, K. S. would see Snider nude in his room about three times a week. On one occasion in 1992, Snider directed her to go take a shower, which she did. She then went into her bedroom to dress and, while standing there without clothing, noticed Snider standing outside her bedroom window looking at her. Although she had blinds on her window, they were the incorrect size and even when closed did not obscure her room. She then dressed in her closet. Snider acknowledged that he stood outside the window in an attempt to see “if [K. S.] would expose herself to [him].”

On August 16, 1993, after sundown, Mrs. Snider was looking for her husband and could not locate him. She went into the backyard and found him standing nude, touching his chest and penis, and looking into K. S.’s bedroom window.

(a) The evidence of child molestation was legally sufficient for the acts committed prior to October 4, 1990. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Gunter v. State, 215 Ga. App. 517, 519 (3) (451 SE2d 108) (1994).

(b) Snider argues that, because K. S. was a minor child and her bedroom was located in the home owned by him, he could not legally be guilty of invasion of her privacy because she had no expectation of privacy there and because he was standing in his own backyard.

OCGA § 16-11-62 (3) provides that it is unlawful for: “Any person to go on or about the premises of another or any private place for the purpose of invading the privacy of others by . . . secretly observing their activities.” (Emphasis supplied.)

Private place is defined in OCGA § 16-11-60 (3) as “a place where one is entitled reasonably to expect to be safe from casual or hostile . . . surveillance.”

Snider’s contention that one does not reasonably expect privacy in her bedroom is not tenable. As held in Kelley v. State, 233 Ga. App. 244, 249 (2) (503 SE2d 881) (1998),

As the Supreme Court of Georgia has noted, OCGA § 16-11-62 was intended to protect all persons from an invasion of privacy. Ransom [v. Ransom, 253 Ga. 656 (324 SE2d 437) (1985)]. There is no express exception for family members. The victim, although a minor, certainly was of an age to understand that she has a right of privacy in certain situations. And, it is logical to conclude that a 16-year-old girl would expect some privacy, even from her parents or guardians, when she was nude in the bathroom.

Such a rationale applies equally to the bedroom of a teenager who has just exited the shower and gone into her bedroom to dress.

This argument also underpins Snider’s contention that the evidence of invasion of privacy was legally insufficient and that argument also fails.

2. Snider’s first and second enumerations deal with denial of his special demurrer to the child molestation and cruelty to children counts of the indictment.

The child molestation count is set out in Division 1 above. The child cruelty count alleged that, “between the 5th day of October, 1990, and the 24th day of June, 1994, . . . [Snider] did unlawfully . . . cause a child under the age of eighteen (18) years, . . . K. S., cruel and excessive mental pain. . . .”

Snider specially demurred to the indictment on the ground that the two counts did not set forth what the immoral and indecent act was (Count 1) or what act Snider did to cause cruel and excessive pain to K. S.

Regarding a special demurrer,

“The true test of the sufficiency of the indictment is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.” (Punctuation omitted; emphasis supplied.) Jordan v. State, 220 Ga. App. 627, 629 (470 SE2d 242) (1996). “It is useful to remember that the purpose of the indictment is to allow defendant to prepare his defense intelligently and to protect him from double jeopardy.” State v. Eubanks, 239 Ga. 483, 484-485 (238 SE2d 38) (1977).

State v. Forthe, 237 Ga. App. 134, 136-137 (514 SE2d 890) (1999).

When the date is not alleged as an essential averment of the crime charged, any offense of the nature charged which is shown by the evidence at trial and occurred within the statute of limitation, including the dates alleged in the indictment, is encompassed by the indictment. Miller v. State, 226 Ga. App. 509, 511 (2) (486 SE2d 911) (1997); Robinson v. State, 213 Ga. App. 577 (1) (445 SE2d 564) (1994). In such a situation, the State is not restricted to proof of a single transaction, but may prove or attempt to prove any number of acts of the nature alleged within the period, “although punishment upon conviction is limited to a single offense, and acquittal or conviction, upon proper plea, operates as a bar to further prosecution for any offense of the nature charged within the period. [Cits.]” Grantham v. State, 117 Ga. App. 444 (1) (160 SE2d 676) (1968). See also Miller, supra.

Decided April 21, 1999

Reconsideration denied May 12, 1999.

Conrad & Abernathy, Eric A. Ballinger, for appellant.

Garry T. Moss, District Attorney, Rachelle L. Strausner, Assistant District Attorney, for appellee.

With respect to the statutory offenses of child molestation and child cruelty, the indictment followed the statutes and, when such offenses are charged,

“(w)e think the terms of the statute on which the indictment is based distinctly individuate the defined offense [s] and that the use of those terms in the indictment is sufficient to give defendant reasonably certain notice of the specific acts charged and thus enable him to prepare his defense. (Cits.)” Cragg v. State, 117 Ga. App. 133, 134-135 (159 SE2d 717) (1968). “It has been broadly held that an indictment may charge lewd and lascivious conduct in general statutory terms without particularizing details which would be offensive to decency. (Cit.)” Id.

Burnett v. State, 202 Ga. App. 563, 564-565 (2) (415 SE2d 43) (1992). See also State v. Black, 149 Ga. App. 389, 391 (4) (254 SE2d 506) (1979).

These offenses are much different from the charges in Military Circle Pet Center No. 94 v. State, 181 Ga. App. 657 (353 SE2d 555) (1987), relied upon by Snider, in which the generic term “neglect” was used and held to give insufficient notice of the charges. State v. Kenney, 233 Ga. App. 298, 300 (1) (b) (503 SE2d 585) (1998).

Judgment affirmed.

McMurray, P. J, and Ruffin, J., concur.

       Snider enumerates denial of his motion for directed verdict as error and also challenges the legal sufficiency of the evidence of this charge. The standard of review for a denial of a motion for directed verdict of acquittal when the sufficiency of the evidence is challenged is whether, under the rule of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt the defendant guilty of the offenses charged. Cantrell v. State, 230 Ga. App. 693, 694-695 (1) (498 SE2d 90) (1998); Cody v. State, 222 Ga. App. 468, 470 (1) (474 SE2d 669) (1996). Both enumerations therefore address the same issue.

       This evidence was introduced as a similar act to show intent.

        D’Auria v. State, 270 Ga. 499 (512 SE2d 266) (1999) is factually distinguishable because it involved sexual battery by a doctor who was engaged in ongoing medical treatment of the victim who had consented to such medical treatment and the alleged improper touching was not specified.


text:
    A99A0364.
    NORTH GEORGIA MEDICAL CENTER v. STOKES et al.
    (517 SE2d 93)
   Johnson, Chief Judge.

Ermel Stokes drove his wife, Gloria Stokes, who was suffering from pain in her chest and left arm, to the North Georgia Medical Center emergency department. She was treated by Dr. James Lingle, who was not a hospital employee but was provided to the hospital by Spectrum Emergency Care, Inc. After diagnosing her with gastritis, Dr. Lingle discharged Gloria Stokes from the hospital. The following evening she returned to the emergency room again complaining of chest pain and later died of an apparent heart attack.

Ermel Stokes sued Dr. Lingle, North Georgia Medical Center and Spectrum, alleging negligence in the doctor’s failure to diagnose the heart problem. North Georgia Medical Center moved for summary judgment on the ground that it could not be held vicariously liable for the negligence of the doctor who was neither an employee nor an apparent agent of the hospital. The trial court found it is undisputed that the doctor was not a hospital employee, but denied the motion because there is a genuine issue of material fact as to whether Dr. Lingle was an apparent agent of North Georgia Medical Center. The hospital applied for interlocutory review of the ruling, and we granted the application.

Under the doctrine of apparent agency, a hospital may be liable for the actions of a doctor who is an independent contractor when (1) the hospital holds out the doctor as its agent, and (2) the patient’s justifiable reliance on that holding out leads to injury. Richmond County Hosp. Auth. v. Brown, 257 Ga. 507, 508-509 (361 SE2d 164) (1987); Whitaker v. Zirkle, 188 Ga. App. 706, 709 (2) (374 SE2d 106) (1988) . In the instant appeal, North Georgia Medical Center does not challenge the trial court’s finding that the hospital held out Dr. Lingle as its agent; rather, it claims only that there is no evidence the Stokeses justifiably relied on that holding out. This claim is without merit.

In his affidavit, Ermel Stokes attests that he assumed Dr. Lingle was an employee of North Georgia Medical Center and would provide good medical treatment and do whatever was necessary to save his wife’s life. The hospital argues this affidavit contradicts Stokes’ deposition testimony that he had no idea if the doctor was a hospital employee and that whether the doctor was an employee or independent contractor did not affect his decision to go to North Georgia Medical Center. Thus, the hospital reasons, Stokes’ contradictory statements must be construed against him to show that he did not rely on the hospital’s representation that Dr. Lingle was its agent. See Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986).

Decided April 30, 1999

Reconsideration denied May 12, 1999 — Cert. applied for.

Love & Willingham, Daryll Love, Geoffrey E. Pope, for appellant.

Ballard & Still, William L. Ballard, Smith, Howard & Ajax, Michael J. Rust, Meredith H. Ragains, for appellees.

Contrary to the hospital’s argument, Stokes’ affidavit does not contradict his deposition testimony. It is apparent from a review of Stokes’ entire deposition that he testified he did not know if Dr. Lingle was or was not a hospital employee, but he assumed the doctor was a hospital employee. He testified that he took his wife to North Georgia Medical Center because it was the nearest hospital, he thought the doctors there worked for the hospital, he had no reason to think they were not working for the hospital and he understood that they were hospital employees.

The relevant question is not whether the Stokeses went to the hospital based on its proximity to them, but whether they relied on the hospital’s representation that Dr. Lingle was its agent in accepting his services. See generally Abdul-Majeed v. Emory Univ. Hosp., 213 Ga. App. 421, 423 (1) (445 SE2d 270) (1994). Based on Stokes’ affidavit and deposition testimony showing that he assumed Dr. Lingle was a hospital employee who would provide good medical treatment, the trial court did not err in finding enough evidence to create a genuine issue of material fact as to whether the Stokeses justifiably relied on the hospital’s representation that the doctor was its agent. See Abdul-Majeed, supra at 423-424. See also Sorrells v. Egleston Children’s Hosp. &c., 222 Ga. App. 229, 231-232 (1), (2) (474 SE2d 60) (1996); Doctors Hosp. &c. v. Bonner, 195 Ga. App. 152, 163-164 (6) (b) (392 SE2d 897) (1990).

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


text:
    A99A0544.
    MILLER v. THE STATE.
    (516 SE2d 838)
   Johnson, Chief Judge.

Michael Miller was charged with driving under the influence of alcohol to the extent he was a less safe driver, OCGA § 40-6-391 (a) (1), and driving with an unlawful blood alcohol level, OCGA § 40-6-391 (a) (5). He was tried before a judge sitting without a jury. The judge found Miller not guilty of DUI to the extent he was a less safe driver, but guilty of DUI with an unlawful blood alcohol level. Miller appeals.

1. Miller asserts the court erred in admitting evidence of his breath test results. The assertion is correct because the state failed to meet its burden of proving Miller was fully informed of his implied consent rights.

When the state seeks to prove a DUI violation by evidence of a chemical test, the state has the burden of demonstrating compliance with the implied consent notice requirements. State v. Causey, 215 Ga. App. 85, 86 (449 SE2d 639) (1994). Unless the state meets its burden of showing that an officer fully informed the arrested person of his right to a chemical test independent of the state-administered test, the results of the state’s test are inadmissible. State v. Hassett, 216 Ga. App. 114, 115 (453 SE2d 508) (1995).

In the instant case, the only witness at Miller’s trial was the deputy sheriff who arrested him. The deputy testified that Miller was stopped at a roadblock and was arrested after failing field sobriety tests. The deputy testified that after the arrest he read Miller his implied consent rights as set forth on a card issued to him by his department. Miller then consented to a breath test, which showed a .112 blood alcohol level. The deputy, however, did not testify as to exactly what rights he informed Miller of or as to the actual contents of the card. The card itself was never introduced into evidence.

Consequently, the state’s only evidence concerning the implied consent warning was the deputy’s conclusory statement that he read a warning contained on a card. Given the absence of any further evidence specifying the substance of the warning allegedly given, the state failed to meet its burden of proving compliance with the implied consent notice requirements. The trial court therefore should have granted Miller’s motion to suppress the breath test results. See State v. Peters, 211 Ga. App. 755, 756-757 (440 SE2d 515) (1994). The court’s ruling to the contrary was error and is reversed.

Exclusion of the breath test results means that there is no competent evidence that Miller operated his motor vehicle when his blood alcohol level was at least .10 grams as required to support a conviction under OCGA § 40-6-391 (a) (5). Accordingly, Miller’s conviction must be reversed due to insufficient evidence. See Holcomb v. State, 217 Ga. App. 482, 483 (1) (458 SE2d 159) (1995).

2. Because of our holding in Division 1, we need not address Miller’s remaining enumerations of error.

Judgment reversed.

McMurray, P. J, and Andrews, J., concur.

Decided April 28, 1999

Reconsideration denied May 12, 1999 — Cert. applied for.

Head, Mullís, Thomas & Webb, Jerry L. Webb, Jr., for appellant.

G. Charming Ruskell, Solicitor, for appellee.


author: Barnes, Judge. Blackburn, Presiding Judge,

text:
    A99A0130.
    FARAHI v. JORDAN.
    (517 SE2d 803)
   Barnes, Judge.

D. J. Farahi appeals the trial court’s determination that his personal injury claim was barred by the statute of limitation due to his lack of diligence in serving the complaint. We affirm.

Farahi filed a slip and fall complaint against Madeline Jordan on August 21, 1997, about 45 days before the statute of limitation expired. The first sheriff’s return of service indicated that the summons was undeliverable on August 27, 1997. The second return of service noted that the defendant was hospitalized on September 30, 1997. On the third return, the sheriff indicated that process was served notoriously on Jordan’s son at Jordan’s “most notorious place of abode” on September 30, 1997.

Jordan answered on October 30, 1997. Among the defenses raised were: “SECOND DEFENSE. Plaintiff’s Complaint is barred due to insufficiency of service of process. THIRD DEFENSE. This Honorable Court lacks personal jurisdiction over Mrs. Jordan and as such, Plaintiff’s Complaint must be dismissed.” Additionally, in an October 30,1997 letter to Farahi’s lawyer accompanying a copy of the answer, Jordan’s lawyer noted that he did not believe service was valid.

For five months, Farahi did nothing to investigate Jordan’s affirmative defenses regarding insufficiency of service or lack of personal jurisdiction.

On April 2, 1998, in response to interrogatories, Jordan’s son stated in an affidavit that he did not reside with his mother. He further stated that the sheriff had not left the complaint at his mother’s home, but instead asked him to come to the sheriff’s department to pick up the papers. Jordan stated in her affidavit of April 2, 1998, that she did not authorize her son to accept service for her and confirmed that he did not live with her. On April 17, 1998, approximately two weeks after receiving these responses and six months after the statute of limitation expired, Farahi perfected service on Jordan. Jordan moved for summary judgment or in the alternative to dismiss, and the trial court granted summary judgment, finding that Jordan was not served before the expiration of the statute of limitation, “nor did Plaintiff exercise due diligence to insure proper service within a reasonable time thereafter.”

We review for abuse of discretion the trial court’s determination of whether the plaintiff failed to exercise due diligence in perfecting service after the statute of limitation had run. Shears v. Harris, 196 Ga. App. 61, 62 (395 SE2d 300) (1990).

In Georgia, if a complaint has been timely filed, and is followed by diligent service, perfected as required by law, even though such service is outside the statute of limitation, it will relate back to the time of filing of the complaint. Childs v. Catlin, 134 Ga. App. 778 (216 SE2d 360) (1975); McCane v. Sowinski, 143 Ga. App. 724 (240 SE2d 132) (1977); OCGA § 9-11-4.

Allen v. Kahn, 231 Ga. App. 438, 439 (499 SE2d 164) (1998).

Because service of process was perfected after the statute of limitation passed, timely filing of the complaint relates back to the date that a suit was properly filed within the statute only if Farahi showed he acted reasonably and diligently in attempting to serve Jordan as quickly as possible, and that he was not at fault. Pryor v. Douglas Shopper &c., 236 Ga. App. 854 (514 SE2d 59) (1999). If Farahi could not make such a showing, however, he would be guilty of laches and service would not relate back to the filing of the complaint.

Farahi admits by implication that the third return of service, which Jordan’s son picked up at the sheriff’s office, was invalid, but argues that he reasonably relied on the sheriff’s return showing notorious service on Jordan’s son. The sheriff’s failure should not be imputed to him, he contends, as Jordan had actual notice of the suit and was not prejudiced by the invalid service before the statute ran.

In this case, receipt of the defendant’s answer asserting insufficiency of service “should have put [Farahi] on notice and inspired [him], through counsel, to exercise the greatest possible diligence to ensure proper and timely service.” Roberts v. Bienert, 183 Ga. App. 751, 752 (1) (360 SE2d 25) (1987). Further, the defendant’s knowledge of the pending suit does not excuse Farahi’s lack of diligence, as “the sine qua non in perfecting service is service of the summonses in the manner provided by law.” Pryor v. Douglas Shopper &c., supra. Consequently, Farahi’s responsibility to account for the failure of service begins from the time the defendant’s answer was received in October 1997.

We find that the trial court did not abuse its discretion in concluding that Jordan’s affidavits rebutted the sheriff’s return of service, and that Farahi was not diligent in perfecting service after receiving Jordan’s answer raising insufficiency of service as a defense.

Decided May 12, 1999.

George E. Powell, Jr., for appellant.

Barrickman & Allred, William S. Allred, Bovis, Kyle & Burch, Christina A. Craddock, for appellee.

Judgment affirmed.

Senior Appellate Judge Harold R. Banke concurs. Blackburn, P. J, concurs specially.

Blackburn, Presiding Judge,

concurring specially.

I agree with the outcome of the majority’s opinion; however, I write separately to point out a technical error present in some of our case law. Cases such as Sykes v. Springer, 220 Ga. App. 388, 389 (1) (469 SE2d 472) (1996); Slater v. Blount, 200 Ga. App. 470, 472 (408 SE2d 433) (1991); and Pryor v. Douglas Shopper &c., 236 Ga. App. 854 (514 SE2d 59) (1999), indicate that the statute of limitation is tolled by reasonable and diligent service made outside of the limitation period. This is inaccurate. The statute of limitation applies generally to the filing of the complaint with the appropriate court, and this filing must take place within the allotted time set out by the legislature, whether or not service has been perfected. Therefore, despite the use of tolling language in cases such as those listed above, if a timely complaint has not been filed, the suit is void, and no subsequent service, diligent or not, can toll the effect of the statute of limitation.

Reasonable and diligent service made outside the statute of limitation may relate back to the date that a suit was properly filed within the statute.

In Georgia, if a complaint has been timely filed, and is followed by diligent service, perfected as required by law, even though such service is outside the statute of limitation, it will relate back to the time of filing the complaint. Childs v. Catlin, 134 Ga. App. 778 (216 SE2d 360) (1975); McCane v. Sowinski, 143 Ga. App. 724 (240 SE2d 132) (1977); OCGA § 9-11-4.

Allen v. Kahn, 231 Ga. App. 438, 439 (499 SE2d 164) (1998).

Thus, although a number of cases have employed tolling language, such terminology should nonetheless be avoided.