author: Judge Harold R. Banke. Beasley, Chief Judge,

text:
    A96A1812.
    BRADFORD v. THE STATE.
    (477 SE2d 859)
   Judge Harold R. Banke.

Avery Bradford was cofivicted of hijacking a motor vehicle (OCGA § 16-5-44.1) and attempted robbery by intimidation (OCGA § 16-8-40). On appeal, Bradford enumerates four errors, all of which challenge only the hijacking convictión.

The State’s evidence was as follows. Around midnight on Christmas, Lisa Headrick left her apartment carrying a laundry basket en route to a friend’s house to do her laundry. As Headrick proceeded toward her car, Bradford intercepted her and grabbed her arm. He cautioned her not to yell and demanded her car keys which she denied having. After Bradford demanded the keys a second time, he warned her that she had better not be lying about the keys as he had a gun and would kill her. Bradford gripped the victim tightly with one hand, and the victim never saw his other hand. While Bradford threatened her, and was becoming increasingly impatient, two police cars drove up within about 30 or 40 feet. Police had been combing the area looking for a reportedly intoxicated person, matching Bradford’s description, who had been attempting to stop traffic on an adjacent main street. As Corporal Jay Moore pulled into the parking lot, he observed Bradford drop his grip on the victim when he spotted the marked patrol car. The victim broke free, ran to the police and reported that a man was trying to take her car. Immediately after the victim’s escape, Moore walked over to Bradford, searched him, but failed to find a gun or weapon or any offensive object. Nor did Moore who watched Bradford from close range observe Bradford discard anything. Headrick testified that she believed the perpetrator “possibly” had a gun even though she never saw a weapon. Because the laundry basket apparently obstructed her view, she was unable to see one of Bradford’s hands and could not testify as to whether that hand was inside his pocket or at his side. Held:

1. Bradford contends that there was a fatal variance between the allegations set forth in the indictment and the evidence shown at trial and also challenges the sufficiency of the evidence. The indictment charged that Bradford “while in possession of an object have [sic] the appearance of a firearm, did unlawfully attempt to obtain a motor vehicle.”

The essential elements of the offense of motor vehicle hijacking are: (1) possessing a firearm or weapon; (2) while obtaining or attempting to obtain a motor vehicle from the person or presence of another; (3) by force and violence or intimidation. OCGA § 16-5-44.1 (b).

The State contends that the motor vehicle hijacking statute should be interpreted in the same manner as the armed robbery statute insofar as the meaning of “weapon” and “appearance of weapon.” OCGA §§ 16-8-41 (a); 16-5-44.1 (a) (3). Drawing a parallel to the armed robbery statute, the State argues that the fact that no weapon was found in this case was not fatal to proving that Bradford had a weapon because under the armed robbery statute, when a weapon remains undisplayed, the requisite element of an offensive weapon can nonetheless be found “provided there is either a physical manifestation of the weapon or some evidence from which the presence of a weapon may be inferred.” Johnson v. State, 195 Ga. App. 56, 57 (1) (a) (392 SE2d 280) (1990). See Moody v. State, 258 Ga. 818, 819 (1) (375 SE2d 30) (1989); Nicholson v. State, 200 Ga. App. 413, 414 (1) (408 SE2d 487) (1991).

In Johnson, supra, the defendant threatened to shoot the victim and kept one hand concealed, which led the victim to reasonably assume he had a gun. Johnson, 195 Ga. App. at 57 (1) (a). Such evidence was held sufficient to satisfy the armed robbery statute. Here, Bradford said he had a gun and threatened to kill the victim if she did not cooperate, but the victim never saw a weapon and no evidence was presented that Bradford concealed his hand dr acted as though he was holding an offensive object. Compare Nicholson, 200 Ga. App. at 414 (1). In fact, the victim specifically testified that she did not know where Bradford’s other hand was located or how it was positioned and admitted that she only thought he “possibly” had a gun.

“Some physical manifestation is required or some evidence from which the presence of a weapon may be inferred, Hughes v. State, 185 Ga. App. 40, 41 (363 SE2d 336), but OCGA § 16-8-41 (a) does not require proof of an actual offensive weapon.” McCluskey v. State, 211 Ga. App. 205, 207 (2) (438 SE2d 679) (1993). In this case, no evidence was offered to establish the physical manifestation requirement necessary to sustain a reasonable inference that Bradford had a gun, a weapon, or any object as alleged in the indictment. Thus, the evidence adduced at trial was not sufficient to enable a rational trier of fact to find all the essential elements of motor vehicle hijacking or to prove that Bradford possessed an object as alleged in the indictment. OCGA § 16-5-44.1; Pettway v. State, 204 Ga. App. 804 (420 SE2d 619) (1992); compare Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); see Talbot v. State, 198 Ga. App. 636, 637 (402 SE2d 366) (1991). For these reasons, we reverse Bradford’s conviction for hijacking a motor vehicle. Bradford’s conviction for attempted robbery by intimidation still stands.

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

Judgment reversed only as to the motor vehicle hijacking conviction.

Blackburn, J., concurs. Beasley, C. J., concurs specially.

Beasley, Chief Judge,

concurring specially.

I concur in the reversal of the hijacking conviction because the permissible inference that defendant was “in possession of a firearm” was eliminated by the arresting officer’s direct testimony that defendant did not have a gun.

The inference that defendant did possess one at the time he threatened to kill the victim with a gun was reasonable. He twice told her he had one and said once that he would kill her with it if she was lying and in fact had the car keys (which she did). She could not see the hand which was not grasping her arm because the laundry basket she was holding with both hands was in the way, so she did not know whether or not the gun he stated he had was in that hand or not. She also testified that he wore a kind of bulky waist-length quilted jacket. The inference could be drawn that the gun was concealed in it. The victim took the defendant at his word. When the State’s attorney asked, “Now, when he told you that he had a gun and told you that if you were lying he would kill you, at that point did you believe that he possibly, in fact, did have a gun?” She responded unequivocally, ‘Tes.” She was “terrified,” “scared.” Defendant was threatening her and getting impatient with her when the police drove up.

This evidence, including the reasonable inferences, is comparable to the evidence in some of the armed robbery cases, where the conviction was affirmed even though no one testified to actually seeing a weapon. As stated in Johnson v. State, 195 Ga. App. 56, 57 (1) (a) (392 SE2d 280) (1990), “The question is whether the defendant’s acts create a ‘reasonable apprehension on the part of the victim that an offensive weapon (was) being used,’ regardless of whether the victim actually saw the weapon. Moody v. State, 258 Ga. 818, 820 (1) (375 SE2d 30) (1989).” The armed robbery statute prohibition “includes concealed offensive weapons provided there is either a physical manifestation of the weapon or some evidence from which the presence of a weapon may be inferred. Hughes v. State, 185 Ga. App. 40, 41 (363 SE2d 336) (1987).” Johnson, supra.

.. Armed robbery occurs when a person, “with intent to commit theft, . . . takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon.” OCGA § 16-8-41 (a). Motor vehicle hijacking occurs when a person “while in possession of a firearm or weapon obtains a motor vehicle from the per: son or presence of another by force and violence or intimidation or attempts or conspires to do so.” OCGA § 16-5-44.1 (b). As indicated in the majority opinion, the two statutes require comparable proof, with respect to the weapon element.

In this case there was no direct physical manifestation of a weapon, but there was both physical and verbal evidence that strongly supported the inference that defendant possessed one. The physical evidence includes the fact that he grasped the victim by only one hand. The other hand was not seen, so its grasp of a gun was not precluded as fact. Thirdly, his clothing was such that a gun could have been in it without visual detection. There was also direct verbal evidence: defendant twice stated that he had a gun, both intimating that he would use it to compel her relinquishment of her car keys so he could take her car or its contents and directly threatening her with its use should she not surrender them.

The officer, who came upon the scene, could not see the hand of defendant which was not grasping the victim’s arm, when he came upon the scene. When the victim ran to the police, defendant stayed where he was and the officer approached him. The officer searched him and found no weapon, did not see any weapon around the vie-, tim’s car (which they were close to), and did not see him drop or throw a weapon although he would have seen it if such occurred. Defendant was intoxicated and submitted to the search. During cross-examination defendant’s counsel asked the officer, “There is no question that he did not have a gun?” He responded, “No, he did not have a gun.”

In light of this evidence, the jury could not find that defendant was “in possession of a firearm” when he attempted to hijack the victim’s car. The reasonable inference which was supported by the circumstantial evidence was removed by the stronger positive evidence that none was present.

This differs from, for example, the situation in Johnson with respect to the armed robbery of Perry. Johnson himself had intimated that he had a gun in that he threatened to shoot the cashier Perry if she did not give him the cash, and he kept one hand concealed, so she assumed he had a gun. He left the store and was not apprehended until the next month, shortly after obtaining cash from cashier Smith by demanding all the money and pointing at her through his jacket pocket as though he had a weapon concealed. Johnson’s conviction for armed robbery of Perry was affirmed, but there was no evidence that immediately after the incident he was searched and no weapon was found. He had ample time to dispose of it or otherwise distance it from his person. As to Smith, the search which yielded no weapon was positive, albeit not conclusive, evidence that he did not have a weapon at the time of the robbery. His conviction of robbery by intimidation for that incident was upheld.

The crime here approximates the victim Smith incident, not the victim Perry incident, because as to both Smith and the victim in this case, the defendant was found to have no weapon. Here the evidence was conclusive, as he was observed continuously by the officer from the time the crime was in progress until after the search of his person and the vicinity where he was standing.

Defendant’s own positive statements during the incident, which were effectively used to control the victim’s actions and compel her to do as he demanded, are not sufficient to prove he “possessed] a firearm,” which is an element of the offense. OCGA § 16-5-44.1 (b). Although they were an operative fact in the commission of the crime, as powerful under the circumstances as though he in fact had one, they proved to be fictitious.

The conviction for hijacking must be reversed. Unlike Talbot v. State, 198 Ga. App. 636, 638 (1) (402 SE2d 366) (1991), the case need not be remanded for a new trial or for resentencing for the lesser included offense of attempted robbery by intimidation; defendant already stands convicted of that offense, involving this incident.

Decided October 31, 1996.

Kathleen D. Kirwin, for appellant.

Harry N. Gordon, District Attorney, Richard L. Dickson, Assistant District Attorney, for appellee.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A95A1268.
    THE STATE v. ANDERSON et al.
    (478 SE2d 145)
    Decided November 1, 1996.

      J. Tom Morgan, District Attorney, Gregory J. Lohmeier, Assistant District Attorney, for appellant.

      Stephen T. Maples, Victoria D. Little,Tor appellees.
   Birdsong, Presiding Judge.

In Anderson v. State, 267 Ga. 116 (475 SE2d 629), the Supreme Court reversed the judgment of this Court in State v. Anderson, 218 Ga. App. 643 (463 SE2d 34). Therefore, our judgment in this appeal is vacated and the judgment of the Supreme Court is made the judgment of this Court. Accordingly, the judgment of the trial court is affirmed and the case remanded to the trial court.

Judgment affirmed and case remanded.

Johnson and Smith, JJ, concur.


author: Johnson, Judge. McMurray, Presiding Judge,

text:
    A96A1304.
    In the Interest of J. B., a child.
    (477 SE2d 874)
   Johnson, Judge.

After an adjudicatory hearing, J. B. was found to be delinquent by virtue of having committed acts which, if done by an adult, would have constituted motor vehicle theft and burglary. J. B. appeals.

1. J. B. complains that the juvenile court’s finding that he committed these acts is against the weight of the evidence because it was based on the uncorroborated testimony of an accomplice. We hold that there is sufficient evidence in the record to corroborate the testimony of J. B.’s accomplice and thus to support the juvenile court’s adjudication of delinquency..

J. B. correctly points out that one may not be convicted based on the uncorroborated testimony of an accomplice. See OCGA § 24-4-8; In the Interest of J. H. M., 202 Ga. App. 79 (413 SE2d 515) (1991). However, slight evidence from an extraneous source identifying the accused as a participant in the criminal act is all that is required to sufficiently corroborate the testimony of the accomplice even if the corroborating evidence is not sufficient standing alone to warrant a conviction. See Martin v. State, 209 Ga. App. 720 (434 SE2d 534) (1993). The evidence corroborating the accomplice’s testimony must be independent of the accomplice’s testimony and must directly connect the accused to the crime or lead to the inference that he is guilty. See Allen v. State, 215 Ga. 455 (111 SE2d 70) (1959). There was such evidence in this case.

The accomplice, Jamie Nelson, testified as follows: While he and J. B. waited outside of T & B Investments, J. B.’s brother Dwayne removed an air conditioning uni,t from a window and entered the office. J. B. knew that Dwayne entered the building. Dwayne removed car keys from an office desk and brought them outside. Nelson then drove a Chevrolet Lumina off of T & B’s lot, and Dwayne and J. B. drove a Chevrolet Cavalier away. A Mazda truck was also taken, though Nelson did not specify who drove it. The Cavalier sustained a flat tire, and when Nelson saw J. B. and Dwayne the next morning, they asked him to drive them back to the Southern Bell parking lot where they left the car. Nelson and J. B. returned to the Southern Bell parking lot in the Lumina, but did not move the disabled Cavalier. With J. B. still in the Lumina with him, Nelson picked up Dwayne. The three drove to another location where Dwayne got out of the car and, in J. B.’s presence, took a Nissan truck. J. B. then rode in the Nissan. J. B. was also with Nelson when Nelson took an Oldsmobile Cutlass. According to Nelson, all three persons devised the plan to commit the thefts.

Although many of the details given by Nelson were not corroborated by the testimony of other witnesses, some of them were. In this regard, it is helpful to consider testimony of other witnesses which directly links J. B. to the burglary and car thefts or leads to an inference that he participated in the commission of the offenses.

(a) Grady Toney, an investigator with the Laurens County Sheriff’s Department, testified that the cars were reported stolen on November 11 or 12, 1995, and that the blue Lumina was recovered at an apartment complex at 908 or 809 South Jefferson. Toney stated that after being read his Miranda rights, J. B. denied taking anything but “indicated he had been a party to what had taken place,” and admitted riding around in the blue Lumina. Toney also testified that “he” admitted being present at T & B Investments, although it is not at all clear from the transcript whether the pronoun “he” was a reference to J. B. or to Nelson.

(b) Aliene Lowe testified that she witnessed J. B., to whom she is related, get out of the driver’s side of a blue car at 908 South Jefferson on the morning of November 13, 1995. No one else was in the car with him. J. B. asked Lowe if she had a spare tire. When Lowe questioned why he needed one, he told her: “I am driving me a police car.”

(c) Flanders Williamson, an investigator with the City of Dublin, testified that after J. B. was read his Miranda rights, J. B. told Williamson how he and the others had used a bronze Nissan truck to push the Lumina out of a ditch. J. B. told Williamson where the truck was parked before they, used it and where they left it. J. B. admitted to Williamson that he knew about the auto thefts.

(d) Jack Dixon, who reported the Nissan truck stolen on November 11 or 12, testified that on the morning of November 13, he noticed a “blue Cavalier Lumina” with flat tires parked on the Southern Bell parking lot, and that two young males got in it and drove away.

(e) J. B. testified that he rode in the Lumina but did not know it was stolen until Nelson told him, at which point he and Dwayne immediately got out of the car at a food store and walked home. He admitted that he was at 908 South Jefferson, that the Lumina was there too, and that he asked Lowe for a spare tire. However, he stated that he only asked for a spare tire because Lowe’s son told him to do so. J. B. denied any other involvement in the offenses.

Thus, Nelson’s testimony that J. B. participated in the burglary and thefts was corroborated by testimony from other witnesses that: J. B. got out of a blue car at an apartment complex at 90,8 South Jefferson, where the stolen blue Lumina was recovered; J. B. was in sole possession of and possibly drove the blue Lumina; J. B. asked a relative for a spare tire when the stolen Cavalier had a flat tire; J. B. rode in the Nissan truck and knew where it was parked before and after its theft; and J. B. knew about the car thefts.

“It is not required that the corroboration of the testimony given by an accomplice shall of itself be sufficient to warrant a verdict of guilty, or that the testimony of the accomplice be corroborated in every particular. The amount of corroborative extraneous evidence necessary to connect the accused with the commission of the offense lies peculiarly within the province of the [factfinder].” (Citations and punctuation omitted.) Belcher v. State, 207 Ga. App. 117, 118 (2) (427 SE2d 88) (1993). “If some evidence of corroboration exists, this court will uphold the verdict.” (Citation and punctuation omitted.) Hayes v. State, 205 Ga. App. 820, 822 (2) (423 SE2d 729) (1992). In this case, the evidence corroborating the accomplice’s testimony, though not overwhelming, is sufficient to support the adjudication of delinquency.

2. J. B. also contends that he was denied effective assistance of counsel because his attorney failed to object to testimony concerning statements Jamie Nelson made to police when Nelson, an adult accomplice against whom charges were pending in superior court, was unavailable to testify. J. B. asserts this ineffectiveness claim for the first time on appeal. “Ordinarily, this requires that the case be remanded to the [juvenile] court for an evidentiary hearing on the asserted [error]. However, remand is not necessary when it appears as a matter of law that the appellant cannot satisfy the two-prong test to establish ineffectiveness of counsel. It requires a showing that (1) his attorney’s representation in specified instances fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Citations and punctuation omitted; emphasis in original.) Johnson v. State, 214 Ga. App. 404, 405 (1) (447 SE2d 711) (1994). It is clear that J. B. cannot satisfy the second part of the test.

“Normally, the confession of a co-defendant cannot be admitted against another defendant at a joint trial. Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476); OCGA § 24-3-52. However, the rule applies only where the co-defendant does not testify and is not available for cross-examination. Id.” Akins v. State, 173 Ga. App. 797, 798 (2) (328 SE2d 413) (1985). Although Nelson was not expected to testify, while the hearing ,was in prpgress the state requested and received an order compelling him to testify See OCGA § 24-9-28. Nelson subsequently testified for the state and was cross-examined by J. B.’s counsel about his participation in the offenses. Thus, the Bruton rule is inapplicable and references to Nelson’s statements were admissible.

We realize that at the time the witnesses testified about Nelson’s statements, Nelson was believed to be unavailable.' Thus, defense counsel should have objected when the testimony was offered, and the failure to do so does raise the question of his effectiveness. However, counsel’s failure to object clearly was not harmful because Nelson did eventually testify at the hearing and was subject to cross-examination. Inasmuch as the testimony objected to on appeal was merely cumulative of Nelson’s testimony, there is no reasonable probability that, but for counsel’s failure to object to this testimony, the result of the proceeding would have been different.

Judgment affirmed.

Beasley, C. J., Birdsong, P. J., Pope, P. J., Andrews, Blackburn, Smith and Ruffin, JJ, concur. McMurray, P. J., dissents.

McMurray, Presiding Judge,

dissenting.

“ ‘ “ Although a defendant may not be convicted on the uncorroborated testimony of an accomplice, OCGA § 24-4-8, slight evidence of a defendant’s identity and participation from an extraneous source is all that is required to corroborate the accomplice’s testimony, and thus, support the verdict. (Cit.)’ (Cit.)” Sanchez v. State, 203 Ga. App. 61, 62 (1) (416 SE2d 139) (1992). “Sufficient corroboration may consist of either direct or circumstantial evidence which connects the defendant with the crime, tends to show his participation therein, and would justify an inference of the guilt of the accused independently of the testimony of the accomplice.” (Punctuation and citations omitted.) Edwards v. State, 200 Ga. App. 580, 584 (4) (408 SE2d 802) (1991).’ Tucker v. State, 205 Ga. App. 683, 684 (423 SE2d 422). In the case sub judice, there was no evidence, however slight, which could be viewed as corroborating the accomplice’s identification of defendant as his cohort in crime. Therefore, the trial court erred in denying defendant’s motion for directed verdict of acquittal. Hanson v. State, 193 Ga. App. 246, 247 (2b) (387 SE2d 441); Claybrooks v. State, 189 Ga. App. 431 (375 SE2d 880); McCauley v. State, 177 Ga. App. 426 (339 SE2d 399).” Woods v. State, 208 Ga. App. 810 (432 SE2d 249). Since OCGA § 24-4-8 applies to juvenile proceedings, In the Interest of J. H. M., 202 Ga. App. 79, 81 (413 SE2d 515), the adjudication of delinquency in the case sub judice was not authorized by the evidence.

There was no evidence, apart from the testimony of the alleged accomplice, that J. B. was present at the scene of any of the alleged delinquent acts. The majority opinion reflects a different reading of the testimony since the transcript shows that it was the alleged accomplice, and not J. B., who gave a statement acknowledging his presence at the scene of the T & B Investments burglary.

Furthermore, the remaining evidence noted by the majority as contributing to the satisfaction of the corroboration requirement fails in any way to show that J. B. participated or had any knowledge of the delinquent acts at issue. The mere presence of J. B. as a passenger in one or more of the stolen vehicles proves nothing since there is no suggestion that he drove or otherwise exercised any dominion or control over the vehicles. Also, there was no evidence showing that J. B. should have been suspicious of the explanations given by the alleged accomplice concerning the alleged accomplice’s possession of the vehicles.

Also, the testimony of Aliene Lowe was without value since it showed only the proximity of J. B. to a vehicle similar to one of the stolen vehicles. The relevance of a statement by J. B. to this witness that he was driving a police car is not established in the record. None of the stolen vehicles was a police car, and none had any markings or lights such as typically found on a police car.

Acknowledging the slight level of evidence necessary to corroborate the testimony of an accomplice, I nonetheless maintain that the State’s burden in this regard has not been met in the case sub judice. Therefore, I respectfully dissent.

Decided November 1, 1996.

Carlton K. Nelson III, for appellant.

Ralph M. Walke, District Attorney, Jeffrey J. Connor, Assistant District Attorney, for appellee.


author: Johnson, Judge. Beasley, Chief Judge, McMurray, Presiding Judge,

text:
    A96A1409.
    STRONG v. THE STATE.
    (477 SE2d 866)
   Johnson, Judge.

Tabitha Strong was charged by indictment with two counts of aggravated assault, possession of a firearm during commission of a felony, and discharge of a firearm on or near a public highway. Each of these charges arose out of the same domestic incident. The indictment charging Strong with possession of a firearm during the commission of,a felony clearly specified that this charge was predicated upon the two alleged aggravated assaults with which she was also charged. Upon the trial of the case, the jury returned a verdict of not guilty as to the two counts of aggravated assault, but found Strong guilty of the remaining two charges. On appeal, Strong maintains that because she was acquitted on the aggravated assault charges, her felony conviction of possession of a firearm during the commission of a felony is void and must be reversed. We agree.

The Georgia Supreme Court abolished the inconsistent verdict rule in Milam v. State, 255 Ga. 560, 562 (2) (341 SE2d 216) (1986). This Court applied Milam in Cleveland v. State, 212 Ga. App. 361 (441 SE2d 820) (1994) and concluded that a jury’s acquittal of a defendant on aggravated assault charges had no relevance to the question of whether that jury was authorized to convict the defendant of possession of a firearm during the commission of a felony. For the reasons which follow, Cleveland is overruled.

OCGA § 16-11-106 (b) provides that any person having a firearm during the commission of, or attempt to commit, a crime which is categorized by law as a felony commits a felony. The existence of a felony or an attempted felony is thus an essential element of the separate firearm offense. In this case, the indictment expressly premised the possession óf a firearm during the commission of a felony charge upon the two aggravated assault charges. The jury acquitted Strong of both aggravated assault charges. It found her guilty only of a violation of OCGA § 16-11-103, discharge of a gun or pistol near a public highway or street, a misdemeanor. Because the jury acquitted Strong of an essential element of the felony firearm charge, the aggravated assault charges upon which her felony firearms indictment was predicated, the jury’s verdict on the felony firearms charge is not merely inconsistent within the contemplation of Milam, it is mutually exclusive and therefore contrary to law. See Harrison v. State, 213 Ga. App. 366, 368 (3) (444 SE2d 613) (1994). The abolition of the inconsistent verdict rule in Milam v. State, supra, is inapplicable here. See Thomas v. State, 199 Ga. App. 586 (1) (405 SE2d 512) (1991) (mutually exclusive verdicts not within the contemplation of Milam).

Because this situation does occur with some frequency, some trial courts, often at the request of the State, have adopted the practice of bifurcating the trial, presenting the jury with the felony firearm charge only after it has convicted a defendant of the underlying predicate felony. The wisdom of such a practice is self-evident, and it avoids the dilemma presented by this and similar cases.

A conviction of possession of a weapon during the commission of a felony must stand or fall in conjunction with the underlying felony upon which the charge is predicated. Strong’s conviction of possession of a firearm during the commission of a felony is reversed. To the extent Cleveland, supra, is inconsistent with this holding, it is overruled.

Judgment reversed.

Birdsong, P. J, Pope, P. J., Blackburn, Smith and Ruffin, JJ, concur. Beasley, C. J., McMurray, P. J, and Andrews, J., dissent.

Beasley, Chief Judge,

dissenting.

“ ‘Consistency in the verdict is not necessary.’ ” So wrote Oliver Wendell Holmes for the Supreme Court of the United States in Dunn v. United States, 284 U. S. 390, 393 (52 SC 189, 76 LE 356) (1932). He stood on rationale that had been developed in even earlier cases. The case involved three charges; the jury convicted defendant of one charge and acquitted him on two. One must look at this as though separate trials were had as to each, Justice Holmes wrote, with the same evidence presented at each trial. Res judicata could not be pleaded at the other trials, on separate counts, if the first resulted in acquittal. When tried together, so long as a guilty verdict is supported by evidence, it is not invalidated by an acquittal of a charge which also was supported by evidence had the jury chosen to convict.

More recently, the Supreme Court affirmed the rule and explained its logic. United States v. Powell, 469 U. S. 57 (105 SC 471, 83 LE2d 461) (1984). When a defendant is tried on two consistent charges and the jury convicts of one but acquits of the other, the Court reasoned-that it is possible “that the jury, convinced of guilt, properly reached its conclusion on [one] offense, and then through mistake, compromise, or lenity, arrived at an inconsistent conclusion on the [other] offense.” Id. at 65. If the evidence supports the conviction, then defendant simply gets a windfall. The criminal defendant is protected against jury irrationality or error not in his favor “by the independent review of the sufficiency of the evidence undertaken by the trial and appellate courts.” Id. at 67. With the decision in Milam v. State, 255 Ga. 560, 562 (2) (341 SE2d 216) (1986), Georgia now follows the same rule.

The instant case, like Cleveland v. State, 212 Ga. App. 361 (441 SE2d 820) (1994), involves acquittal of aggravated assault and conviction of possession of a firearm during commission of a felony. Applying the rule adopted in Milam, the court affirmed Cleveland’s conviction because the evidence supported it. The same applies to Strong’s case.

The situation was different in Thomas v. State, 199 Ga. App. 586 (405 SE2d 512) (1991). Thomas was convicted of both armed robbery of a car and theft by receiving a stolen car, the same one. There was evidence to support either offense, but the elements were mutually exclusive so both convictions could not stand. The court vacated the conviction for theft and affirmed the conviction for armed robbery. Id. at 588 (1).

Harrison v. State, 213 Ga. App. 366, 368 (3) (444 SE2d 613) (1994), also presented a conviction on mutually exclusive verdicts. Defendant was charged with armed robbery against Betty Jean Walker and possession of a firearm during commission of that crime. The jury found him guilty of the lesser included offense of theft by taking, plus possession of a firearm. The latter could not stand because the amount taken from Walker was $20, which made the theft a misdemeanor, and an element of the crime of firearm possession is that it be committed during a felony. OCGA § 16-11-106 (b). The verdict for theft by taking, a misdemeanor under the facts, acquitted defendant of armed robbery and thus excluded a verdict for possession of a firearm during commission of a felony. This was not an instance of jury lenity, mistake in conveying the jury’s real conclusions, or compromise.

Mutually exclusive verdicts, which cannot both stand, result in two positive findings of fact which cannot logically mutually exist. Inconsistent verdicts, which do not introduce invalidity, bespeak a positive finding of fact as to one charge and the failure to make a positive finding of fact as to the other. The latter, which results in an acquittal, does not constitute a negative finding of fact but may be explained as compromise, mistake, or lenity. We can neither speculate nor inquire.

Justice Rehnquist recognized the distinction between inconsistent verdicts, which can stand, and those which are mutually exclusive, which cannot. In the last footnote in Powell, he was careful to note, “Nothing in this opinion is intended to decide the proper resolution of a situation where a defendant is convicted of two crimes, where a guilty verdict on one count logically excludes a finding of guilt on the other. [Cits.]” Powell, supra at 69, n. 8. Inconsistent verdicts involve a conviction on one count and an acquittal on another count; mutually exclusive verdicts involve two convictions.

In this instance there is inconsistency, not mutual exclusivity. I agree with Presiding Judge McMurray.

I am authorized to state that Presiding Judge McMurray and Judge Andrews join in this dissent.

McMurray, Presiding Judge,

dissenting.

In my view, the trial court was correct and should be affirmed by this Court. Therefore, I respectfully dissent.

A number of earlier decisions of this Court apply a rule concerning mutually exclusive convictions. That rule has no application to a verdict of acquittal. It is meaningful only with referap.ce to examining multiple convictions to determine if they are mutually exclusive, that is, if one necessarily excludes the other. This point is made particularly well in Thomas v. State, 199 Ga. App. 586, 587 (1) (405 SE2d 512) (rev’d on other grounds, 261 Ga. 854 (413 SE2d 196)) via a quote from 18 ALR3d 259, 283: “ ‘The general rule dispensing with the necessity for consistency as between the acquittals and guilty verdicts under a multicount indictment or information is hot ordinarily applied where the jury returns multiple convictions as to crimes which are mutually exclusive of each other.’ ” All of the cases relied upon by the majority involve only mutually exclusive multiple convictions. Thomas held convictions for armed robbery of a car and for theft by receiving the same car were mutually exclusive. Harrison v. State, 213 Ga. App. 366, 368 (3) (444 SE2d 613) involves whether convictions for misdemeanor theft by taking and a violation of OCGA § 16-11-106 (b) (possession of a gun or knife during the commission of certain felonies) were mutually exclusive. Harrison in turn is predicated on Jefferson v. State, 196 Ga. App. 770, 771 (2) (397 SE2d 129) which approves a jury charge which authorizes a conviction for' possession of a firearm during a (felony) crime only if a felony conviction is returned for the underlying robbery, but not if the robbery charge results in a misdemeanor conviction.

When one begins to examine the question of whether a conviction is consistent 'with an acquittal, one is within the area governed by the decision in Milam v. State, 255 Ga. 560, 562 (2) (341 SE2d 216) which abolished the inconsistent verdict rule. In my view, Milam is controlling here and I would hold that the verdicts in the case sub judice, as in Cleveland v. State, 212 Ga. App. 361 (441 SE2d 820), are merely inconsistent since there are no mutually exclusive convictions.

Decided November 1, 1996.

Martin H. Eaves, for appellant.

Richard E. Currie, District Attorney, Kathy L. Register, Assistant District Attorney, for appellee.

I am authorized to state that Chief Judge Beasley and Judge Andrews join in this dissent.


author: Judge Harold R. Banke.

text:
    A96A1715.
    LEE v. THE STATE.
    (477 SE2d 872)
   Judge Harold R. Banke.

Tydeous Lee a/k/a Tydeous Booker was convicted of the sale of cocaine. On appeal, Lee enumerates three errors all of which challenge the trial court’s evidentiary rulings.

On appeal, the evidence must be viewed in the light most favorable to the verdict. Rigenstrup v. State, 197 Ga. App. 176, 181 (4) (398 SE2d 25) (1990). Viewed in that light, the State’s evidence was as follows. A videotape depicted Lee’s hand-to-hand sale of a substance to Detective Jane Kenny. In exchange for $20, the undercover officer received a pinkish, red-colored ziplock bag directly from Lee. Kenny identified Lee as the person who approached her vehicle and identified the ziplock bag as the one she purchased from Lee. Although Lee admitted that he was the person appearing on the videotape, he denied that the substance sold was cocaine. Lee’s chief defense was that he duped the undercover agent into purchasing a counterfeit substance consisting of baking soda, wax, and Orajel. The GBI forensic scientist’s determination that the ziplock bag contained cocaine was admitted via his affidavit. Under cross-examination, Lee admitted that by selling the counterfeit substance he defrauded the agent and lied to her. The State contended that by so testifying, Lee opened the door to the State’s introduction of character evidence. Over objection, the State introduced certified copies of Lee’s three prior convictions for the sale of cocaine and Lee’s two prior convictions for possession of cocaine. Held:

1. The trial court erred by permitting an undercover agent to testify over objection after being administered an oath that did not substantially comply with OCGA § 17-8-52 because it failed to state the defendant’s name and to specify the criminal charge. The statutory language is mandatory, not permissive. OCGA § 17-8-52. See Ashburn v. State, 15 Ga. 246; State v. Williams, 181 Ga. App. 204 (351 SE2d 727) (1986) (dismissal of perjury counts affirmed where .defendant not administered lawful oath in grand jury proceeding). The State’s failure to administer the statutory oath to Kenny was not a minor deviation as the oath given was materially different in both form and substance from the requisite statutory oath. Compare Elam v. State, 211 Ga. App. 739, 740 (2) (440 SE2d 511) (1994); see Kirkland v. State, 140 Ga. App. 197, 198 (1) (230 SE2d 347) (1976).

Having found error, we must determine whether it was sufficiently harmful to warrant reversal. Durham v. State, 129 Ga. App. 5, 6 (198 SE2d 387) (1973). It is difficult to imagine an error more harmless because the jury, the court, and the witness knew the name of the defendant as well as the criminal charge pending. Even excluding Kenny’s testimony as inadmissible, the remaining State’s evidence was overwhelming beyond a reasonable doubt. Palmer v. State, 186 Ga. App. 892, 897 (369 SE2d 38) (1988). The videotape admitted without objection depicted Lee selling a substance to the undercover agent for $20. Lee failed to object to the general oath administered to Investigator David Hannah, who identified the pinkish, red-colored ziplock bag as the one he logged, labeled, and transported to the crime lab. Joseph v. State, 149 Ga. App. 296 (1) (254 SE2d 383) (1979). Through Hannah’s testimony the State introduced the incriminating forensic report from the GBI showing that the substance in the ziplock bag tested positive for cocaine. Given the overwhelming, unquestionably admissible evidence, Lee failed to prove the requisite harm. Palmer, 186 Ga. App. at 897.

2. Lee waived his challenge to the admission of the certified copy of the crime lab report. After the State notified Lee of its intent to use the certified report as permitted by OCGA § 35-3-16 (c), Lee had ten days to object to the report’s admission and state his grounds. Lee’s failure to do so waived any objection to the certificate’s admission. OCGA § 35-3-16 (c).

3. The trial court erred in admitting certified copies of Lee’s prior convictions in evidence because Lee’s testimony did not place his character in issue. Given the overwhelming evidence of Lee’s guilt, the error does not mandate reversal because it is highly probable that it did not contribute to the guilty verdict. Wheat v. State, 205 Ga. App. 388, 389 (2) (422 SE2d 559) (1992). Compare Beasley v. State, 204 Ga. App. 214, 218 (3) (419 SE2d 92) (1992). The evidence was sufficient to enable a reasonable trier of fact to find Lee guilty of the sale of cocaine beyond a reasonable doubt, even excluding the evidence of prior convictions. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided November 1, 1996.

Richard W. Voss, for appellant.

Alan A. Cook, District Attorney, for appellee.

Judgment affirmed.

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

       The State administered the following: “Do you swear or affirm that the testimony you’re about to present in the matter now pending before the jury shall be the truth, the whole truth, and nothing but the truth, so help you God.”

       Lee objected on the basis that the certificate tendered at trial was not fully executed and lacked the requisite jurat.


text:
    A96A1819.
    In the Interest of R. U. et al., children.
    (477 SE2d 864)
   Judge Harold R. Banke.

The natural parents of R. U. and J. U. appeal from a juvenile court order terminating their parental rights. In their sole enumeration of error, they challenge the sufficiency of the evidence.

The record shows thqt December 1994 was a turning point for the parents. Since that time, they have made steady improvement individually and in their relationship and have accomplished many of the goals included in the case plan developed by the Department of Family & Children Services (“DFCS”). In fact, DFCS presented no admissible evidence after December 1994 of any parental misconduct or inability.

The State’s evidence of events prior to December 1994 amply documents the parents’ marital and personal problems. The father testified that the biracial couple had gotten along well during their 11-year marriage until they moved to Georgia in 1991, when the wife, who is of African-American descent, experienced racial problems which disturbed her. The record shows that between 1991 and December 1994 the mother abused both alcohol and drugs and had mental problems which included depression, bipolar and borderline personality disorders, and an attempted suicide. The father was unemployed and had emphysema and arthritis.

In 1993, in their most damaging conflict, both parents requested and received protective orders to prevent^ a continuation of their mutual physical abuse. It is undisputed that DFCS obtained custody of the children due to the mother’s substance abuse and mental problems and the father’s he,alth problems and admitted inability to parent alone.

Since December 1994, both parents have received family counseling and psychiatric care. They have also attended Parents Anonymous. The mother completed an alcohol and drug awareness program and had not tested positive for drugs in over eight months as of September 1995. She also completed a class on child care. The father testified that his health was much improved, he had not imbibed alcohol since Christmas 1994, he intended to try to re-establish his family, and he had joined a church. The parents have maintained regular contact with the children through visits supervised by DFCS. With very few exceptions, the only regular visits they missed were due to illness or hospitalization. The children currently reside with their paternal grandfather and step-grandmother.

At the parental rights termination hearing on August 31, 1995, the DFCS caseworker testified that after R. U. was taken into DFCS custody in June 1993, she developed a case plan requiring the parents to keep a permanent home, live alcohol and drug free, cooperate with DFCS, attend group meetings for parents of children with hyperactivity, and maintain regular and consistent contact with the child. The mother was also supposed to maintain employment. The record indicates that they have accomplished many of these goals, though not necessarily to the caseworker’s satisfaction. The caseworker testified that if parental rights were terminated, the grandparents would be given the opportunity to adopt the children, but if they did not adopt, alternative adoption placement would be pursued. She also stated that at one point the parents claimed she was biased and had threatened her life.

At the hearing, the couple’s family counselor characterized their improvement during the past year as “very consistent.” He also testified that nothing about the couple would lead him to believe they were incapable of caring for their children.

Significantly, the children’s guardian ad litem submitted a post-hearing recommendation to the court requesting that the court deny DFCS’ motion to terminate parental rights. She stated that termination would not be in the children’s best interest because if the paternal grandparents adopted them, the $400 in monthly social security benefits the children received from their father would be terminated. She also noted that the paternal grandfather was 80 years old and the children were four and five. The guardian ad litem reported that the parents had made positive changes in their lives and observed that many of the negative actions they took predated the filing of the petition. However, she did not believe the parents were ready to take custody of the children. Instead, the guardian ad litem recommended that DFCS retain custody of the children. While acknowledging that there was no evidence of any impropriety on the caseworker’s part, the guardian ad litem also recommended that a different caseworker be assigned. Held-.

The termination of parental rights under OCGA § 15-11-81 involves a two-step analysis. First, the juvenile court must find clear and convincing evidence of parental misconduct or inability: In the Interest of L. M., 219 Ga. App. 746, 748 (2) (466 SE2d 887) (1995). Second, the court must determine whether termination is in the best interests of the children. Id. The standard of review in such cases is whether a rational trier of fact could have found clear and convincing evidence that the parents’ rights had been lost. Id.

In this case, the evidence amply supports the juvenile court’s findings that the children were deprived and the lack of proper parental care or control caused the deprivation. OCGA § 15-11-81 (b) (4) (A). We agree with the guardian ad litem, however, that the evidence the deprivation is likely to continue or will not be remedied is insufficient. “A finding of unfitness must be based on present circumstances.” In re N. F. R., 179 Ga. App. 346, 348 (2) (346 SE2d 121) (1986). DFCS has provided no clear and convincing evidence of parental misconduct occurring after December 1994. On the contrary, the record amply documents the parents’ efforts after that date to comply with the case plan and regain custody of their children. This is not to say, however, that reunification is appropriate at this time.

Like the guardian ad litem, we too question the propriety of the juvenile court’s finding that termination was in the children’s best interests. In re Creech, 139 Ga. App. 210, 211 (3) (228 SE2d 198) (1976) (abuse of discretion standard of review). Should the grandparents choose not to adopt, DFCS’ plans to remove the children to another adoptive home, thereby separating them from the relatively secure environment they presently enjoy, would hardly promote at least their immediate stability. In the Interest of J. M. G., 214 Ga. App. 738 (1) (448 SE2d 785) (1994) (merits of available placements relevant to determination of best interest).

“ ‘There is no judicial determination which has more drastic significance than that of permanently severing a natural parent-child relationship. . . .’ [Cit.]” Jones v. Dept. of Human Resources, 168 Ga. App. 915, 916 (1) (310 SE2d 753) (1983). Due to the staleness of the evidence of parental misconduct and the absence of clear and convincing evidence that the deprivation is likely to continue, termination of parental rights is inappropriate. McCormick v. Dept. of Human Resources, 161 Ga. App. 163, 164 (2) (288 SE2d 120) (1982). Accordingly, the trial court’s termination order is vacated, and the case is remanded for consideration of alternative dispositions as authorized by OCGA § 15-11-81 (c). Jones, 168 Ga. App. at 916-917 (1); see In the Interest of K. E. B., 190 Ga. App. 121, 126 (378 SE2d 171) (1989).

Decided November 1, 1996.

Jerry W. Moncus, for appellants.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Stephanie M. Baldauff, Assistant Attorneys General, Nancy E. Bradshaw, for appellee.

Judgment vacated and case remanded with direction.

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

       As a preliminary matter, we decline to address the parents’ procedural argument challenging the timeliness of J. U.’s deprivation order because the parents failed to enumerate such as error. Toledo v. State, 216 Ga. App. 480, 482 (4) (455 SE2d 595) (1995).


text:
    A96A2119.
    ALLSTATE INSURANCE COMPANY v. SAPP et al.
    (477 SE2d 869)
   Judge Harold R. Banke.

Allstate Insurance Company appeals the denial of summary judgment on its declaratory judgment action which sought a determination of coverage on an insurance policy issued to B. Robert Sellers. Allstate raises two enumerations.

While alone at his uncle’s house, Richard Pratt, then 16, became bored and decided on an impulse to use his uncle’s 1984 Nissan pickup truck without permission. Pratt mistakenly believed he could slip back before his uncle returned home. Pratt testified that although he knew he needed Sellers’ consent to drive the truck, he did not attempt to obtain it. Pratt admitted that on every prior occasion where he had asked to borrow the truck, his uncle had refused his request. Pratt had never taken the truck or any other vehicle without permission. Less than 45 minutes after he “borrowed” the truck, Pratt totaled it in a single vehicle accident. Both Pratt and his only passenger, Jonathan Sapp, received minor injuries.

Sellers testified that when his sister notified him about the accident, he became enraged and “wanted to kill” his nephew, feeling that Pratt had breached his trust. Sellers informed his Allstate agent that Pratt had taken the truck without permission, and he required Pratt to make restitution to him for wrecking his vehicle.

Sellers accompanied Pratt and Pratt’s mother to a juvenile court hearing on the charges against Pratt for driving without proof of insurance and driving too fast for conditions. The court posed only a few questions to Sellers. When the juvenile court inquired as to whose vehicle the 1984 Nissan was, Sellers stated, “It’s mine.” The court next asked, “Do you have insurance on it?” Sellers responded, ‘Yes, sir.” The court then examined the insurance card and concluded, “Okay, it’s covered by insurance, so we’ll dismiss the driving without proof of insurance.”

After Rebecca Sapp requested coverage from Allstate on behalf of her son Jonathan Sapp, Pratt’s passenger, Allstate sought declaratory relief to resolve whether Pratt was insured within the meaning of Sellers’ policy. Meanwhile, Sapp settled an uninsured motorist claim with Allstate under another policy subject to the instant declaratory judgment action. Allstate maintained that Pratt was not covered under the liability policy at issue and, consequently, it had no duty to provide Pratt with coverage or a defense because Pratt operated the truck without the permission of its policyholder and he was not a resident of the policyholder’s household. Sapp argued that whether Pratt had “constructive permission” to drive Sellers’ truck and whether Sellers ratified Pratt’s use of the truck by his testimony in juvenile court precluded summary judgment.

The trial court determined that Sellers’ court testimony conveyed the impression to the juvenile court that the vehicle was covered and that Pratt was a covered driver. The trial court concluded that because Pratt was a covered driver for the purpose of escaping punishment for driving without proof of insurance, he could not be a covered driver for one purpose, i.e., the juvenile court appearance, and a non-covered driver for another purpose. Without reaching the issue of whether Pratt had constructive permission to drive the truck, the court denied summary judgment, determining that Sellers’ testimony raised a material issue of fact on the issue of Sellers’ ratification of Pratt’s use of the vehicle. Held:

Allstate contends that the trial court erroneously concluded that Sellers’ testimony in juvenile court created an issue of fact as to whether Sellers ratified Pratt’s use of his vehicle and thereby estopped Allstate from denying coverage. We agree.

Under Sellers’ policy, Allstate was obligated to cover an “insured” person which was defined as “any resident relative,” and “any other person using [Sellers’ vehicle] with [his] permission.” It is undisputed that Pratt was not a resident of Sellers’ household and that Pratt did not obtain Sellers’ consent prior to operating the vehicle. Sapp, however, argues that Sellers’ testimony created permissive use after the fact by implying that Pratt operated the vehicle with permission. Sapp contends that by offering his insurance as a shield to protect his nephew from criminal prosecution, Sellers ratified Pratt’s use of the truck and thereby estopped himself and Allstate from denying coverage. This argument is flawed for several reasons. First, Sapp has misconstrued Sellers’ testimony. The juvenile court did not ask Sellers whether Pratt had his permission to use the truck or whether Sellers’ policy covered Pratt. The court merely asked Sellers whether he had insurance on the vehicle, a question which Sellers truthfully answered. Second, whether a person is “insured” within the meaning of an insurance policy is a legal question, not a question for a policyholder. OCGA § 13-2-1; Early v. Kent, 215 Ga. 49, 50 (1) (108 SE2d 708) (1959). Third, Allstate was not represented at the juvenile court hearing and cannot be estopped from denying coverage based on what its policyholder stated about his insurance contract. Sapp offered no evidence that Sellers was acting on behalf of Allstate when he presented his insurance card to the juvenile court or that he had the authority to bind Allstate with his testimony. Rubin v. Mikart, Inc., 167 Ga. App. 425, 426-427 (306 SE2d 420) (1983) (ratification requires principal/agent relationship). See Regional Pacesetters v. Halpern Enterprises, 165 Ga. App. 777, 781 (1) (300 SE2d 180) (1983) (act subject to ratification must be done for and on the behalf of party adopting and ratifying it). No evidence was offered that Allstate elected to “ratify” or bind itself by any statement or any conduct of Sellers.

Decided November 1, 1996

Karsman, Brooks & Callaway, R. Krane Riddle, for appellant.

Benjamin S. Eichholz, Harris O’Dell, Jr., Birney O. Bull, for appellees.

Nor was there an estoppel. Estoppel requires justifiable reliance oil the opposing party’s representations or conduct and a change in position to one’s detriment. State Farm Mut. Auto. Ins. Co. v. Penrow, 142 Ga. App. 463, 466 (4) (236 SE2d 275) (1977). Sapp failed to show justifiable reliance or a detrimental change in position.

Nothing Sellers said constituted a solemn admission in judicio binding on Allstate. See OCGA § 24-4-24 (b) (7); compare Anderson v. Clark, 70 Ga. 362, 367 (3) (1883). Having found no merit to the ratification argument as creating ex post facto permissive use, and in the absence of any evidence that Pratt had received expressed or implied permission to use Sellers’ vehicle, we find that Allstate was entitled to summary judgment as a matter of law. OCGA § 9-11-56; Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Judgment reversed.

Birdsong, P. J., and Blackburn, J., concur.

       The juvenile court also asked if Sellers was Pratt’s father, how much it cost Sellers to repair his truck and whether it was totaled.


author: McMurray, Presiding Judge.

text:
    A96A1283.
    JENKINS v. THE STATE.
    (478 SE2d 143)
   McMurray, Presiding Judge.

Defendant was charged in an accusation with driving under the influence of alcohol to an extent that it was less safe for him to drive. The evidence adduced at a bench trial reveals the following: At about 9:00 or 10:00 in the evening November 30,1993, Ralph W. Tuggle, Jr. returned home with his family and discovered a strange car parked in his driveway, blocking entrance to his home. Tuggle noticed that the vehicle’s headlights were on, that the car’s engine was running and that “both front windows were down.” Concerned that a burglary was in progress, Tuggle kept his family in the car and summoned the police with his mobile telephone. Officer Robert Dean Johnson, Jr. of the DeKalb County Police Department responded and, upon arriving at the scene, found the strange car parked in the Tuggles’ driveway with its engine running. Officer Johnson observed no movement inside the strange car so he cautiously approached the driver’s door, looked inside and found defendant in the car’s driver’s, seat, “slumped over the steering wheel.” Officer Johnson “beat on the door several times [for about three or four minutes] trying to get [defendant] to move . . . until finally [defendant] stirred [and looked at the officer].” Officer Johnson then asked defendant to exit the car, but defendant did not respond. He remained behind the steering wheel — dazed.

Officer Johnson repeated his request for defendánt to exit the vehicle and, after about two minutes, defendant opened the car’s door. A strong alcohol stench immediately wafted from the car’s interior and defendant “just about fell out of the car and onto [Officer Johnson].” The officer “grabbed [defendant’s] left arm and said are you okay? . . .” He noticed that defendant “had slobbered on himself . . .” and realized that defendant could not make it on his own. Officer Johnson “literally had to pull [defendant] oqt of the car because he was almost dead weight.”

When Officer Johnson “finally got [defendant] up [on his feet, defendant] almost fell back on [the officer] again.” Officer Johnson then “held [defendant] up to make sure he was okay [and discovered] no injuries whatsoever.” The officer “asked [defendant] what his name was [and] was he okay.” Defendant “said yes [and] started mumbling. At that point[, Officer Johnson] observed ... an empty bottle of an alcoholic beverage in the vehicle.” It appeared to be a half-gallon container for “Scotch whisky.” The officer “found another bottle in the [car’s] back seat. . . . It . Was full.” Observing that defendant could barely stand without assistance, Officer Johnson determined that defendant was “heavily intoxicated” and “arrested [him] for suspected driving under the influence.”

The trial court found defendant guilty of driving under the influence of alcohol to an extent that it was less safe for him to drive. This appeal followed. Held:

1. Defendant contends there was no, proof that he operated a moving vehicle while under the influence of alcohol, arguing that the facts support his defense that he parked in the Tuggles’ driveway, began drinking whiskey and then went to sleep.

“It is true, as [defendant] argues, that to be guilty of the offense of driving under the influence of intoxicants one must drive or be in actual physical control of a moving vehicle while under the influence of alcohol or drugs. Carr v. State, 169 Ga. App. 679, 680 (2) (314 SE2d 694) (1984). However, ‘ “(i)t is well settled that the driving of an automobile while intoxicated may be shown by circumstantial evidence.” (Cit.) “ ‘In order to sustain the judgment of conviction, the evidence need not exclude every inference or hypothesis except the guilt of the accused, but only reasonable inferences and hypotheses, so as to justify the inference, beyond a reasonable doubt, of guilt.’ ” (Cit.)’ Fuller v. State, 166 Ga. App. 734, 735 (1) (305 SE2d 463) (1983).” Jones v. State, 187 Ga. App. 132 (1), 133 (369 SE2d 509).

In the case sub judice, it is true that Officer Johnson did not actually observe defendant operate the car that was parked in the Tuggles’ driveway. The officer testified, however, that he found defendant slumped over the steering wheel while the car’s engine was operating; that defendant’s residence was not close to the Tuggles’ home and that defendant exhibited characteristics of a person who is “heavily intoxicated.” This proof, and Tuggle’s testimony that defendant is a complete stranger, is sufficient to authorize the trial court’s finding that defendant is guilty, beyond a reasonable doubt, of driving a car to the Tuggles’ driveway while under the influence of alcohol to an extent that it was less safe for him to drive. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Likewise, “ ‘[t]he [trial court] was authorized not to accept an alternative hypothesis offered by [defendant].’ Russell v. State, 174 Ga. App. 436, 437 (2) (330 SE2d 175) (1985).” Jones v. State, 187 Ga. App. 132 (1), 133, supra.

2. Defendant challenges the denial of his motion to suppress, arguing that Officer Johnson “did not have the requisite articulable suspicion to require [him] to exit his vehicle or to launch a secondary investigation for the offense of Driving Under the Influence . . .” because the officer observed no indication that defendant was “in peril, or engaging in unlawful behavior.” This argument is without merit. When Officer Johnson discovered defendant slumped over the steering wheel of the strange car, “it is obvious that he had a legitimate purpose in [ordering defendant out of the vehicle] in order to ascertain the condition of the driver.” State v. Thomason, 153 Ga. App. 345, 346 (1), 347 (265 SE2d 312).

Decided August 30, 1996

Reconsideration denied November 4, 1996

William C. Head, for appellant.

Ralph T. Bowden, Jr., Solicitor, Lisa A. Jones, W. Cliff Howard, Assistant Solicitors, for appellee.

Judgment affirmed.

Johnson and Ruffin, JJ., concur.


author: McMURRAY, Presiding Judge.

text:
    A96A1702.
    TURNER v. THE STATE.
    (477 SE2d 847)
   McMURRAY, Presiding Judge.

Defendant was charged in an indictment with rape, statutory rape, and two counts of child molestation. At defendant’s jury trial, the then 13-year-old victim, “K. R.,” testified that she went to live with her mother in June 1994. This was when K. R. was 12. Defendant, who “was [K. R.’s] mama’s boyfriend,” also lived there. One day after school, defendant told K. R. “to take [her] panties off and lay on the floor [of her mother’s bedroom].” Defendant was clad only in shorts. He pulled them off, and “he had sex with [K. R.].” “His penis touched [K. R.’s] vagina, . . . [on the] inside, . . . and it hurt[ ].” Defendant also touched K. R.’s “breasts [. . . and] buttocks [. . . with] his hands.” K. R. related another time when defendant “told [her] to get on top of him[, . . . and] his penis touched [her] vagina.” This happened “a lot of times.” Defendant “told [K. R.] not to tell nobody.”

The victim’s sister, “N. H.,” testified that she had “seen [K. R.] and [defendant].” “They [were] on [her] mom’s bed.” N. H. affirmed that defendant was “laying on the bed[, . . .] on his back[, . . . and K. R.] was on top of him.” Ms. Janie Mae Woods, K. R.’s grandmother, testified that “on one Saturday [in January 1995, K. R.] called and she was real upset. She was crying and she was wanting to come home. She didn’t want to stay at her mother’s house anymore.” Since that time, K. R. “has crying spells sometimes. She has a very poor appetite. Her sleep pattern is not very good. She doesn’t sleep well at night. She has 'nightmares when she goes to sleep. She wets the bed at the age of 12. And she’s 13 now, but she started back wetting the bed.” “S. D.” is K. R.’s 14-year-old cousin. S. D. testified that K. R. confirmed to her the events as related by N. H.

The jury acquitted defendant of the rape charge but found him guilty of statutory rape and both counts of child molestation. His motion for new trial was denied, and this appeal followed. Held:

Defendant’s sole enumeration of error urges the general grounds. He argues in his brief that the evidence was “contradictory and raised serious questions as to whether the offenses . . . actually occurred.” “Combining the contradictions in witness testimony and the absence of physical evidence, [defendant contends] no rational trier of fact, having scrutinized the [S]tate’s evidence, could have found the essential elements of the crime[s] beyond a reasonable doubt.”

1. “A person commits the offense of child molestation when he or she does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” OCGA § 16-6-4 (a).

(a) “On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant (defendant here) no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Howard v. State, 261 Ga. 251, 252 (403 SE2d 204); King v. State, 213 Ga. App. 268, 269 (444 SE2d 381). ‘Conflicts in the testimony of the witnesses, including the (S)tate’s witnesses, is a matter of credibility for the jury to resolve. (Cits.) As long as there is some (competent) evidence, even though contradicted, to support each fact necessary to make out the (S)tate’s case, the jury’s verdict will be upheld. (Cit.)’ Searcy v. State, 236 Ga. 789, 790 (225 SE2d 311).” Grier v. State, 218 Ga. App. 637, 638 (1) (463 SE2d 130).

(b) “There is no requirement that the testimony of the victim of child molestation or aggravated child molestation be corroborated. Toles v. State, 202 Ga. App. 815 (1) (415 SE2d 531); Saunders v. State, 195 Ga. App. 810 (1) (395 SE2d 53); Fitzgerald v. State, 193 Ga. App. 76 (2) (386 SE2d 914). Nevertheless, the testimony of the victim in the case sub judice was corroborated by evidence of her outcry to her [grand]mother and [by the direct evidence of the eyewitness, N. H.]. Stander v. State, 193 Ga. App. 212 (1) (387 SE2d 422).” Dent v. State, 220 Ga. App. 147 (1) (469 SE2d 311). The evidence was sufficient under the standard of Jackson v. Virginia, supra, to authorize the jury’s verdicts that defendant committed child molestation beyond a reasonable doubt as alleged in Counts 3 and 4 of the indictment. Dent v. State, 220 Ga. App. 147 (1), supra; Patterson v. State, 212 Ga. App. 257 (1) (441 SE2d 414).

2. “A person commits the offense of statutory rape when he or she engages in sexual intercourse with any person under the age of 16 years and not his or her spouse, provided that no conviction shall be had for this offense on the unsupported testimony of the victim.” OCGA § 16-6-3 (a).

Decided October 17, 1996

Reconsideration denied November 4, 1996.

James D. Michael, for appellant.

Norris Turner, pro se.

J. Tom Morgan, District Attorney, Lee A. Mangone, Robert M. Coker, Assistant District Attorneys, for appellee.

In the case sub judice, the repeated acts of intercourse testified to by K. R., occurring when she was 12 years old, were corroborated by her confession to S. D., as well as by the testimony of N. H., and by K. R.’s behavior after these acts. “[A] child-victim’s prior consistent statements, as recounted by third parties to whom such statements were made, can constitute ‘sufficient substantive evidence of corroboration’ in a statutory rape casé. Long v. State, 189 Ga. App. 131, 132 (1) (375 SE2d 274).” Ogles v. State, 218 Ga. App. 92 (1) (b), 93 (460 SE2d 866). The enumeration of tfie general grounds is without merit.

Judgment affirmed.

Johnson and Ruffin, JJ, concur.


text:
    A96A2090.
    REVERA v. THE STATE.
    (477 SE2d 849)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of aggravated assault (with intent to murder), aggravated assault (three counts), aggravated battery, cruelty to children, burglary, and terroristic threats. The evidence revealed that on March 5, 1995, defendant argued with the then 16-year-old daughter of defendant’s girl friend (the victim). Defendant had been drinking gin and had already argued with the victim’s mother. Defendant “got up from the couch and he pulled a [kitchen] knife out from behind his back[, . . .] and he came towards [the victim].” “[H]e raised the knife and started stabbing.” He repeatedly stabbed and cut her, leaving wounds on both arms, her left leg, and her chest. The tip of the knife blade broke off in the victim’s arm. The victim’s left arm remainéd “numb. [She did not] have feeling in [that] arm. . . .”

Fleeing defendant, the victim ran to the nearby residence of Melissa Faye Watkins, who observed as “[defendant came] running in behind her [the victim] chasing her with a knife saying, ‘Where’s that slut? I’m gonna kill her.’ And then he said [to Melissa Faye Watkins,] ‘I’m not gonna hurt you.’ ” Melissa Faye Watkins “yelled so loud [that her boyfriend] Shawn [Milsap] came out of the bathroom.” Defendant wielded the knife so as to threaten Shawn Milsap with stabbing. Defendant’s motion for new trial was denied and this appeal followed. Held:

1. Defendant first contends the trial court erred in allowing the State “to use a privileged communication between the [defendant] and his investigator generated as part of the attorney-client relationship in order to refresh a witness’ memory that allowed him to testify to facts that he otherwise did not remember[.]”

The record reveals that defendant raised the defense of mental illness, relying in part upon the testimony of Dennis Lloyd Herendeen, Ph.D., “a licensed psychologist in the State of Georgia.” Dr. Herendeen diagnosed defendant as having “a dissociative disorder not otherwise specified.” “This was not a fugue state. It was not psychogenic amnesia. [Defendant] does not have multiple personalities. It was a breakdown in the existing personality structure that resulted in a dissociation process. So that he was acting in a way that was not coherent or purposeful or rational.” “The nature of [defendant’s] illness prevents him from . . . remembering what happened.”

The State’s Attorney then showed Dr. Herendeen State’s exhibit 34, “a statement which has been provided ... by the Defense counsel purporting to have been from [defendant].” It appears that this statement was given to an investigator for defense counsel. This exhibit was not tendered into evidence. But over defendant’s objection that this statement was privileged under the “attorney/client privilege, where statements that are obtained as part of the Defense file is concerned,” Dr. Herendeen was permitted to review this document to refresh his present recollection. The trial court determined that any privilege had been waived because the defense elected to proceed under the criminal discovery procedures, OCGA § 17-16-1 et seq.

Dr. Herendeen affirmed that the statement does “refresh [his] memory as to some of the specifics which [defendant] provided [Dr. Herendeen] concerning the incident[.]” Thereafter, Dr. Herendeen related from his personal recollection the version of events defendant had recounted to him, including defendant’s description of when he “went in the kitchen and got a knife. [Defendant] remembers coming out and at that point he remembers being in a fog and started to feel like things were off at a distance and not being able to — what [Dr. Herendeen] interprets] as perceptual distortions started occurring at that point in time. . . . [Defendant’s actual] words were something like, T remember seeing — like everything was blurry and in slow motion.’ And there was a time distortion. Often people in dissociative states have time distortions.”

OCGA § 24-9-24 provides in part: “Communications to any attorney or to his employee to be transmitted to the attorney pending his employment or in anticipation thereof shall never be heard by the court. The attorney shall not disclose the advice or counsel he may give to his client, nor produce or deliver up title deeds or other papers, except evidences of debt left in his possession by his client.” The privileged nature of a confidential communication is not lost or waived even if the attorney should voluntarily or inadvertently produce a transcript of the communication. McKie v. State, 165 Ga. 210 (hn. 3) (140 SE 625). Consequently, in the case sub judice, the trial court erred in permitting the State, on cross-examination, to have the defense psychologist refresh his recollection (thereby effectively impeaching defendant) by use of a privileged and confidential communication to the attorney’s investigator.

Nevertheless, the testimony of Dr. Herendeen as thus impermissibly refreshed is entirely consistent with, and cumulative of, other competent evidence that defendant recalled details of his vicious knife attack on his girl friend’s daughter. Michael Clark Helton, M. D., a forensic psychiatrist, testified that defendant “recalled . . . getting up, walking to the kitchen, grabbing the knife, going back into the living room, holding the knife at his side as he went back into the room, that the [victim] was still yelling at him, harassing him and that then in the middle of her . . . yelling at him he then began to stab her. And he said he felt like it was in slow motion. That is again a feature of being somewhat detached from the emotional content of what’s going on.” “The cumulative nature of [Dr. Herendeen’s testimony in the case sub judice even though impermissibly refreshed by use of a confidential and privileged] statement renders [the] error in its admission harmless. McLendon v. State, 259 Ga. 778 (387 SE2d 133) (1990); Foster v. State, 258 Ga. 736, 742 (8) (b) (374 SE2d 188) (1988).” Miller v. State, 260 Ga. 191, 193 (5), 194 (391 SE2d 642). Accord Assad v. State, 195 Ga. App. 692, 693 (2) (394 SE2d 617).

2. The timely filed enumerated error poses the question whether “Appellant’s trial counsel [is] guilty of ineffective assistance of counsel by giving to the [State] privileged information generated as part of the attorney-client privilege?”

This enumeration “fail[s] to specify any error alleged to have been committed by the trial court. See OCGA § 5-6-51 (4).” Robinson v. State, 210 Ga. App. 278, 279 (2) (435 SE2d 718). Defendant invoked no ruling by the trial court on this question, for aught that appears of record. This Court will not consider issues and grounds for objection, even of constitutional magnitude, which were not raised and determined in the trial court. Gee v. State, 210 Ga. App. 60, 61 (3) (435 SE2d 275). In our view, defendant’s “failure to raise a claim of ineffectiveness before appeal under the circumstances of this case is a procedural bar to raising the claim [for the first time on appeal].” Glover v. State, 266 Ga. 183 (2), 184 (465 SE2d 659). Consequently, this enumeration presents nothing for review.

Decided October 21, 1996

Reconsideration denied November 4, 1996.

David M. Rosenberg, for appellant.

Roger G. Queen, District Attorney, William B. Britt, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson and Ruffin, JJ, concur.


author: Andrews, Judge.

text:
    A96A1976.
    MILLER v. THE STATE.
    (477 SE2d 878)
   Andrews, Judge.

Timothy Renard Miller was found guilty by a jury of armed robbery and aggravated assault with intent to rob. He appeals from the judgment of conviction and enumerates - as error that: (1) the evidence was insufficient to support the convictions, and (2) the trial court erroneously admitted evidence of prior offenses as similar transactions. We find no basis for reversal and affirm.

1. The evidence was sufficient to support the armed robbery conviction. The State produced the following evidence: A grocery store cashier testified that Miller walked up to the cash register where she was working and told her to open the register or he would “blow [her] head off.” She said Miller told her he had a gun and pointed toward her with his hand, which had a shirt wrapped around it. Although she could not see what was under the shirt, and did not see a gun, she testified that she feared for her life because she thought Miller had a gun under the shirt. She opened the cash register, and Miller pulled the cash drawer out of the register. After he pulled it out, the cash in the drawer spilled out on the floor. As Miller leaned down toward the money, the store owner appeared, armed with a revolver, and held Miller at gunpoint until the police arrived and arrested him. The evidence showed that Miller did not have a gun or any other weapon. The cashier also testified that, during the course of the robbery, Miller grabbed her around the neck. Miller presented no evidence.

The evidence was sufficient to show-that Miller was guilty of armed robbery by taking the storé’s cash from the register by use of an article or device — wrapping his hand in a shirt — which had the appearance of an offensive weapon. OCGA § 16-8-41 (a). It is no defense that Miller did not actually have a gun or other offensive weapon in his possession when he committed the robbery. A conviction for armed robbery may be supported by evidence that the robber used an article or device which, under the circumstances, created reasonable apprehension in the victim that the robber was using an offensive weapon. Moody v. State, 258 Ga. 818, 819-820 (375 SE2d 30) (1989); McCluskey v. State, 211 Ga. App. 205, 207-208 (438 SE2d 679) (1993). The evidence was sufficient for the jury to find the cashier had a reasonable apprehension that Miller was using a gun to commit the robbery. There was also sufficient evidence of a taking under OCGA § 16-8-41 even though Miller only temporarily held the cash drawer he pulled from the register and did not escape with any money. “Under OCGA § 16-8-41 the slightest change of location whereby the complete dominion of the property is transferred from the true owner to the trespasser is sufficient asportation to meet the statutory criterion. [Cits.] It is not required that the property taken be permanently appropriated. [Cits.]” (Punctuation omitted.) Peoples v. State, 184 Ga. App. 439 (361 SE2d 848) (1987).

After reviewing the evidence in a light most favorable to the verdict, we find the evidence was sufficient for a rational trier of fact to find Miller guilty of armed robbery beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Accordingly, there is no merit to Miller’s additional contention that the trial court erred by denying his motion for a directed verdict.

2. The record shows that the trial court merged the aggravated assault with intent to rob conviction with the armed robbery conviction and sentenced Miller only for the armed robbery. Accordingly, the aggravated assault conviction stands vacated by operation of law, and Miller’s contentions as to this conviction are moot. Wade v. State, 258 Ga. 324, 326 (368 SE2d 482) (1988).

3. Miller contends the trial court erred by overruling his objection that the prior offenses admitted as similar transaction evidence were not sufficiently similar to the charged armed robbery. The State presented evidence that Miller committed two previous armed robberies of convenience stores about two years prior to the present armed robbery. In both previous offenses, although no gun was visible, Miller stole cash from the store by threatening to shoot the clerk-cashier. In one case, Miller had his hand wrapped in a black cloth or towel when he threatened to shoot, and, in the other case, Miller threatened to shoot while holding his hand in his pocket. The prior offenses were sufficiently similar to the present armed robbery, in which Miller used a similar device while threatening to shoot the cashier, so that they tended to prove his guilt in the present case. There was no error in admitting the prior offenses as similar transaction evidence. Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991).

Judgment affirmed.

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

Decided November 4, 1996.

G. Samuel Burnette, for appellant.

Charles H. Weston, District Attorney, Graham A. Thorpe, Thomas J. Matthews, Assistant District Attorneys, for appellee.


author: Pope, Presiding Judge.

text:
    A96A0766.
    JONES v. CHATHAM COUNTY, GEORGIA et al. POWERS v. JONES.
    A96A1339.
    (477 SE2d 889)
   Pope, Presiding Judge.

Plaintiff Lujane Jones worked for defendants in the County Tax Commissioner’s office. When the Commissioner discovered Jones had engaged in unacceptable personal conduct, she gave Jones the choice of resigning or being fired. Jones resigned, but subsequently brought this suit, alleging that the termination without a hearing constituted a violation of her right to procedural due process as well as a breach of contract. In Case No. A96A0766, Jones appeals from the trial court’s grant of summary judgment for all defendants on her constitutional claim; and in Case No. A96A1339, defendant Powers, the current Tax Commissioner, appeals from the denial of his motion for summary judgment on the breach of contract claim. Because the available post-termination procedures cured the employer’s failure to have a pre-termination hearing, we affirm the grant of summary judgment for defendants on the procedural due process claim. We reverse the denial of Powers’ motion for summary judgment, however, as an employer’s failure to follow termination procedures in a personnel manual is not actionable under Georgia law.

Plaintiff worked in the delinquent tax division, where it was her responsibility to schedule periodic sales of properties whose owners had not paid their taxes. Based on information from one of plaintiff’s co-workers, the operations manager (“Gorman”) initiated an investigation which showed that plaintiff had failed to pay taxes on properties she owned, had moved the documentation on these properties from the general files to her own desk drawer, and had marked her properties off the list of those to be sold. Gorman then told the Tax Commissioner, who decided that plaintiff (as well as her immediate supervisor, who had done the same thing) had to resign or be fired.

On April 25, 1994, Gorman confronted plaintiff about her unacceptable behavior and asked for an explanation. Plaintiff did not deny the allegations, but said she was having financial problems. During that same meeting, Gorman gave plaintiff a resignation letter and a termination letter and told her to sign one of them. According to Gorman, the termination letter informed plaintiff of her right to appeal an involuntary termination; but according to plaintiff, it did not.

Plaintiff signed the letter of resignation. That, same day, however, she contacted the Personnel Advisory Board and told them she wanted to appeal the Commissioner’s decision. On June 15, 1994, the Board informed plaintiff they would hear her appeal even though she had signed a letter of resignation. But the hearing was not held until October 11, 1994, for several reasons: the attorneys were trying to resolve the dispute without a hearing; the GBI was investigating the Tax Commissioner’s office during this period, and the Tax Commissioner resigned; and the Board, which is all volunteer, ran into scheduling problems, both with Board members and with witnesses. By the time the hearing was scheduled, plaintiff had just filed this suit (it had not yet been served on defendants), and refused to participate.

Case No. A96A0766

Plaintiff argues that defendants violated her right to procedural due process by terminating her without a hearing, and that this violation was not cured by offering her a post-termination hearing five months later.

1. We first address whether plaintiff’s resignation was sufficiently involuntary to trigger the protections of the due process clause. Plaintiff signed a resignation letter, and for purposes of due process analysis, public employee resignations are presumed to be voluntary. See Hargray v. City of Hallandale, 57 F3d 1560, 1568 (11th Cir. 1995). That an employee must choose between resignation and a comparably unpleasant alternative does not render his choice involuntary. Id. If he knows he could “stand pát and fight” but chooses to avoid the stigma of firing by resigning instead, he is bound by his choice and is not entitled to a hearing. Id.; seé-also Christie v. United States, 518 F2d 584, 587 (Ct. Cl. 1975). But this choice must be based on an awareness of the charges against him and his right to a hearing if he does not resign. See Burch v. Rame, 676 FSupp. 1218, 1228 (S.D. Ga. 1988). In this case, there is a factual dispute about whether plaintiff was informed of her right to appeal an involuntary termination (i.e., of the right she would be waiving by signing the letter of resignation). Accordingly, the trial court properly denied summary judgment on this issue.

2. Where, as here, a public employee has a property interest in her continued employment, some type of pre-termination hearing is required. See Cleveland Bd. of Ed. v. Loudermill, 470 U. S. 532, 542 (105 SC 1487, 84 LE2d 494) (1985). Depending on the circumstances, the pre-termination hearing need not be elaborate. Id. at 545. But it must be before the person charged with responsibility for making the termination decision. Jones v. City of East Point, 795 FSupp. 408, 414 (N.D. Ga. 1992), aff’d, 987 F2d 775 (11th Cir. 1993). In this case, the only meeting which could be characterized as a pre-termination hearing was the April 25 meeting in which Gorman confronted plaintiff with the charges against her and asked for an explanation. But Gorman acknowledged that the termination decision had already been made by the Tax Commissioner a week earlier, and that she did not have authority to change that decision, regardless of plaintiff’s explanation. Thus, plaintiff was deprived of the required pre-termination hearing.

3. Nonetheless, the deprivation resulting from a failure to have a pre-termination hearing does not ripen into a procedural due process violation unless the state “refuses to make available a means to remedy the deprivation.” McKinney v. Pate, 20 F3d 1550, 1563 (11th Cir. 1994). See also Atlanta City School Dist. v. Dowling, 266 Ga. 217 (466 SE2d 588) (1996). “In other words, the state may cure a procedural deprivation by providing a later procedural remedy; only when the state refuses to provide a process sufficient to remedy the procedural deprivation does a constitutional violation actionable under section 1983 arise.” McKinney, 20 F3d at 1557.

In Dowling, a public employee dismissed without a pre-termination hearing was able to appeal her dismissal to a personnel board, and then to the Georgia courts (see OCGA § 5-4-1 et seq.); she was eventually reinstated with full back pay. Citing McKinney, the Georgia Supreme Court held that because the state had provided adequate procedures to remedy the situation, there was no procedural due process violation actionable under 42 USCA § 1983. As the same procedures available to the employee in Dowling were available to plaintiff in this case, it follows that there was no actionable due process violation here either. Plaintiff attempts to distinguish Dowling on the grounds that the employee in that case successfully utilized the available procedures and was eventually reinstated. But the focus of the procedural due process analysis is whether the state makes adequate procedures available — not whether the plaintiff takes advantage of those procedures and achieves a successful outcome. Cf. Lee v. Hutson, 810 F2d 1030 (11th Cir. 1987) (existence of OCGA § 5-4-1 et seq. precludes procedural due process claim of dismissed state employee, even though the employee failed to take advantage of the statutory scheme). Accordingly, summary judgment on plaintiff’s due process claim was proper. x

4. Nor did the five-month delay render the remedy offered by the state constitutionally inadequate. Contrary to plaintiff’s assertions, this conclusion does not mean the state can delay indefinitely or wait until the employee files an action under 42 USCA § 1983 before offering the post-termination remedy. “The Due Process Clause requires provision of a hearing ‘at a meaningful time.’ [Cit.] At some point, a delay in the post-termination hearing would become a constitutional violation. [Cit.]” Loudermill, 470 U. S. at 547. But that point was not reached in this case.

In Fed. Deposit Ins. Co. v. Mallen, 486 U. S. 230 (108 SC 1780, 100 LE2d 265) (1987), the United States Supreme Court provided guidance on when a delay in the hearing process becomes a constitutional violation. There, the Supreme Court cautioned lower courts not to be “improperly concerned with the danger of an interminable delay,” but instead to look at the delay in the specific case and what might have happened differently had there been no delay. Id. at 242. Specifically, courts should consider the harm to the plaintiff’s interest, the justification for the delay offered by the state, and the likelihood that the interim decision may have been mistaken. Id.

That is exactly what the lower court did in this case, and we agree with its conclusions. Though the absence of income clearly harmed plaintiff during this period of delay, the latter two considerations weigh heavily in favor of the state. At least part of the delay was caused by plaintiff’s submission of what appeared to be a voluntary resignation letter, and the scheduling difficulties do not seem unreasonable under the circumstances. Moreover, plaintiff does not deny that she engaged in the unacceptable conduct alleged; she simply attempts to justify it on the grounds that her immediate supervisor was doing the same thing. Under these circumstances, the trial court did not err in ruling that the delay in this case did not reach the point of a constitutional deprivation.

Case No. A96A1339

In this case, defendant Powers challenges the trial court’s denial of his motion for summary judgment on plaintiff’s breach of contract claim. The premise of this claim is that even if the Tax Commissioner did not violate plaintiff’s constitutional right to due process, she failed to follow all the procedures for termination set forth in the personnel manual; and this failure to follow the procedures in the manual constituted a breach of contract.

Decided November 5, 1996.

McCorkle, Pedigo & Johnson, David H. Johnson, for Jones.

Emily E. Garrard, for Powers.

5. Powers argues that a violation of procedures in a personnel manual is not actionable as a breach of contract, and we agree. A policy that public employees can be terminated only for cause does give the employee an interest in continued employment for purposes of procedural due process analysis. See Brownlee v. Williams, 233 Ga. at 550 (1). But that does not mean that a manual stating the policy and setting forth procedures for its implementation is a contract. For purposes of the breach of contract claim, we look only to Georgia law and make no distinction between public and private employees. See Peterson v. Atlanta Housing Auth., 998 F2d 904, 913, n. 18 (11th Cir. 1993). And under Georgia law, personnel manuals stating that employees can be terminated only for cause and setting forth termination procedures are not contracts of employment; failure to follow the termination procedures contained in them is not actionable. See Burgess v. Decatur Fed. Sav. & Loan Assn., 178 Ga. App. 787 (345 SE2d 45) (1986); Anderberg v. Ga. Elec. Membership Corp., 175 Ga. App. 14, 15 (1) (332 SE2d 326) (1985).

In other words, if a public employee has a personnel manual stating she can be fired only for cause, she is entitled to procedural due process, the adequacy of which is governed by federal law. But if the requirements of due process are met, the employer’s failure to follow all the procedures in the manual does not give rise to an action for breach of contract. Thus, the trial court erred in denying Powers’ motion for summary judgment on the breach of contract claim. Plaintiff’s reliance on Wayne County v. Herrin, 210 Ga. App. at 755 (7), is misplaced, as the decision in that case was grounded in due process analysis rather than breach of contract.

6. In light of our decision in Division 5, we need not address Powers’ sovereign immunity argument.

Judgment affirmed in Case No. A96A0766. Judgment reversed in Case No. A96A1339.

Smith, J, and Senior Appellate Judge Harold R. Banke concur.

Ranitz, Mahoney, Coolidge & Mahoney, Thomas J. Mahoney, Jr., for Chatham County.

       Although a public employee does not generally have a property interest in continued employment under Georgia law, such an interest does arise for due process purposes when the employment can be terminated only for cause. See Brownlee v. Williams, 233 Ga. 548, 551 (212 SE2d 359) (1975); Wayne County v. Herrin, 210 Ga. App. 747, 755 (7) (437 SE2d 793) (1993). In this case, it is undisputed that plaintiff could be terminated only for cause, and thus had a property interest in her continued employment.

       In Loudermill, a nine-month delay was deemed not unconstitutionally lengthy per se. 470 U. S. at 547.

       But see Fulton-DeKalb Hosp. Auth. v. Metzger, 203 Ga. App. 595, 596 (2) (417 SE2d 163) (1992) (with respect to benefits rather than termination of employment, provisions of employee handbook given to employee at time he was hired are legally binding).