text:
    A00A1239.
    JAKEL v. FOUNTAINHEAD DEVELOPMENT CORPORATION, INC.
    (534 SE2d 199)
   Eldridge, Judge.

Plaintiff, Otto K. Jakel, appeals from the trial court’s order granting partial summary judgment to defendant, Fountainhead Development Corporation, Inc. (“Fountainhead”).

Viewed in the light most favorable to the nonmovant, the evidence shows the following. Fountainhead is the developer of residential property along and adjacent to The Legends at Chateau Elan golf course. In late 1992, Frank Miller & Associates, Inc. prepared a preliminary drawing portraying the contemplated development of the Legends subdivision at Chateau Elan (the “Legends Development”) for Fountainhead, which did not depict Lot 19 of Block C. In early January 1994, Jakel went to the Legends Development to look at the lots for sale. Jakel met with Philip Mulherin, Director of Development at Chateau Elan, and expressed an interest in purchasing property for investment purposes in the unplatted Legends Development along and adjacent to the Legends golf course.

After viewing the properties while playing a round of golf, Jakel decided he was interested in the property adjacent to the clubhouse. Jakel used a mobile telephone to call Mulherin, and Mulherin met with Jakel and his wife at or near the location of the property in which Jakel was interested. After meeting at the property, Jakel, his wife, and Mulherin traveled to the sales office for the development where they consulted the preliminary drawing and identified the lots in Block C of the Legends Development in which Jakel was interested; no final plat existed for Block C of the Legends Development at that time and still does not exist today. Jakel also expressed an interest in becoming a member of Legends Golf Club.

Within a few days, a document dated January 14, 1994, and written on the letterhead of The Legends at Chateau Elan was prepared by Mulherin and mailed to Jakel. The agreement read in its entirety as follows:

This letter serves as an option agreement in consideration of $20,000 to be applied toward the purchase price of Lot #18 and potentially Lot #19 of Block C in The Legends at Chateau Elan. Option to purchase is subject to Seller’s acceptance of an offer of $145,000 to purchase either lot, inclusive of membership. Regardless of the outcome of said option to purchase a homesite at the Legends at Chateau Elan, $20,000 deposit shall be used as membership fee to join The Legends at Chateau Elan golf club.

While Lot 18 of Block C appeared on the preliminary plan for the Legends Development, there was no Lot 19 in Block C shown on the plans. Both Jakel and Mulherin signed the document, and Jakel returned the document to Mulherin. On January 14, 1994, Jakel also entered into “The Legends at Chateau Elan Golf Club Membership Non-Residential” agreement with Legends Golf Club. The cost of such nonresidential membership was $20,000. Jakel issued one check in the amount of $20,000, made payable to “The Legends @ Chateau.” The memo line of the check provided that it was for “deposit on land.” However, since January 1994, Jakel has possessed and exercised his nonresident golf membership rights at the Legends Golf Club.

Subsequently, on July 30, 1996, a revised development plan was drafted for the Legends Development. The 1996 drawing designates Block C as a site for future development and makes no reference to either Lot 18 or 19 of Block C. In late December 1997 or early January 1998, Jakel contacted Mulherin and indicated he wanted to purchase Lots 18 and 19 of Block C for $145,000 each pursuant to the January 14,1994 agreement. Fountainhead refused to sell Jakel Lots 18 and 19 of Block C.

Jakel filed suit alleging that the January 14, 1994 agreement was an option to purchase contract and sought alternatively specific performance or damages for breach of contract. Jakel also sought recovery for damages for trespass. Fountainhead answered and moved for summary judgment. On November 24,1999, the trial court entered an order granting Fountainhead’s motion for summary judgment in part and denying the motion in part. In such order, the trial court held that:

By its terms, the document does not bind the seller ([djefendant) to sell the property in question, for a price of $145,000[;] therefore [,] the document is not an option con-, tract. Although the document signed by the parties is not enforceable as an option contract, the [c]ourt also notes that there is ambiguity in the document. . . . Given the evidence presented at the hearing on this matter, the [c]ourt is unable consistent with the rules of contract interpretation to find, as a matter of law, that the document, signed by the parties, is without any legal effect, and since any disagreement between the parties as to the intended effect of the document is an issue of fact for the jury and not a matter of law for determination by the [c]ourt, [cit.], the court is unable to grant summary judgment on all issues.

It is from this order that Jakel appeals. In his sole enumeration of error, Jakel contends the trial court erred in granting partial summary judgment to Fountainhead. We disagree and affirm the ruling of the trial court.

The language of the agreement between Fountainhead and Jakel is clear and unambiguous, requiring no construction by the court, nor does it present an issue for a jury. “If the terms used [in a contract] are clear and unambiguous they are to be taken and understood in their plain, ordinary, and popular sense.” (Citations and punctuation omitted.) Akron Pest Control v. Radar Exterminating Co., 216 Ga. App. 495, 497 (455 SE2d 601) (1995).

An option to purchase land is a contract where an owner agrees with another person that he shall have the right to purchase the described property within a specified time period at a fixed price, on agreed terms and conditions. Chatham Amusement Co. v. Perry, 216 Ga. 445, 446 (117 SE2d 320) (1960); Bowles v. Babcock & Wilcox Co., 209 Ga. 858 (76 SE2d 703) (1953). The contract binds the seller to sell but leaves it discretionary with the other party to buy. Id. An option contract is subject to the rules governing other contracts. Id.

In this case, the agreement between the parties did not bind the seller to sell. The agreement clearly and unambiguously gave Fountainhead the right to refuse any offer made by Jakel. The document merely permitted Jakel to offer to purchase the lots subject to Fountainhead’s right of refusal, a right that Fountainhead exercised. In a true option contract, notice by the holder of a written option to purchase land that he elects to purchase the realty at the price and upon the terms stated in the option contract converts the option contract into a contract for the sale of land which the purchaser may enforce against the seller. Chatham Amusement Co. v. Perry, supra. Under the facts of this case, Jakel’s alleged election to purchase the lots vested no such rights in him. Given that Fountainhead retained the discretion to reject Jakel’s offer under the terms of the agreement, the contract lacked mutuality. “It is well settled that contracts conditioned upon discretionary contingencies lack mutuality.” (Citation and punctuation omitted.) Giacalone v. Tuggle, 141 Ga. App. 123, 124 (4) (232 SE2d 589) (1977).

Further, an option contract for the sale of realty comes within the Statute of Frauds and “must describe the land to be sold with the same degree of certainty as that required of a deed conveying realty.” (Citations and punctuation omitted.) Firstline Corp. v. Valdosta-Lowndes County Indus. Auth., 236 Ga. App. 432, 433 (511 SE2d 538) (1999). Here, the agreement described the property as Lot 18 and potentially Lot 19 of Block C in The Legends at Chateau Elan. Only a preliminary plan existed for Block C of The Legends at Chateau Elan when the agreement was signed by the parties; there was no recorded plat or survey. Only Lot 18 of Block C existed on the preliminary plan; there was no Lot 19. Subsequent to the parties signing the agreement and prior to Jakel attempting to exercise his alleged option, the preliminary plan was revised. Jakel testified that at the time he entered into the agreement, he understood that the boundaries of the lots were preliminary and subject to change and that the lots had not been platted. The revised preliminary plan showed Block C as future development and did not show either Lot 18 or 19 within Block C. To date the revised preliminary plan has not been changed to include Lots 18 and 19 in Block C, and there is not an existing recorded plat or survey of Block C. Hence, the agreement did not describe the property with sufficient particularity.

Decided May 5, 2000.

Richard C. Bellows, for appellant.

Stewart, Melvin & Frost, Mark W. Alexander, for appellee.

Additionally, the alleged option lacked a time period within which Jakel could exercise the alleged option to purchase. While time is not generally of the essence in a contract, “an option is peculiarly a contract of which time is of the essence.” (Citation and punctuation omitted.) Bowden v. Mews Dev. Corp., 247 Ga. 546, 547 (2) (277 SE2d 653) (1981). “[B]ecause of the singular one-sidedness of an option contract in creating, for a stated duration, an irrevocable offer of the optionor, the law requires that the optionee perform all of its obligations under that contract with particular timeliness.” Barkley-Cupit Enterprises, v. Equitable Life &c., 157 Ga. App. 138, 141 (276 SE2d 650) (1981).

In this case, because the agreement between the parties lacks mutuality in that it fails to bind Fountainhead to sell, does not describe the property with sufficient particularity, and fails to state a time within which Jakel could exercise his alleged option to purchase the property, the agreement between the parties does not contain the essential elements of an option contract for the sale of land and cannot be enforced as such. The only effect of the agreement is to allow a set-off of $20,000 in the event Jakel purchases a lot in the Legends Development in the future and to provide Jakel with a nonresident membership in the Legends Golf Club.

Judgment affirmed.

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

        Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).


source: Caselaw Access Project

author: Per curiam.

license: Public Domain

text:
    A00A0400, A00A0401, A00A0402.
    DAKER v. THE STATE (three cases).
    (533 SE2d 393)
   Per curiam.

Waseem Daker was charged with two counts of aggravated stalking. The indictment alleged that, in violation of a condition of his pretrial release, Daker contacted Lottie Spencer on October 14 and 20, 1995, at her home without her consent for the purpose of harassing and intimidating her. The jury returned a verdict of guilty on both counts. After entry of conviction and sentence, Daker moved for a new trial and for a sentence modification. After those motions were denied, Daker unsuccessfully sought to recuse the trial judge. In Case No. A00A0400, Daker appeals his convictions and the denial of his motion for new trial. In Case No. A00A0401, he appeals the denial of his motion to recuse the trial judge. In Case No. A00A0402, he appeals the order denying his motion for sentence modification. We find no reversible error in any of the appeals and affirm.

Spencer worked as an office manager for a group of psychiatrists. Toward the end of 1993, she became an avid participant in a sport known as paint ball. She and Daker played on the same team. When they met, she was about 30 years old and he was about 17.

Spencer’s testimony, as corroborated by a number of prosecution witnesses including law enforcement officers, showed the following. In fall 1994, Daker started telephoning Spencer to discuss paint ball but began to confide personal problems, including his being suicidally depressed. Daker also expressed romantic feelings toward her and then became irate upon being rebuffed.

Beginning in winter or spring 1995, Daker embarked on a campaign of harassment against Spencer. He made incessant telephone calls to her apartment at all hours of the day and night. Although uninvited, he often appeared at the apartment at all hours, knocked loudly on her door and windows, and refused to leave. He made surreptitious attempts to enter her apartment, followed by the commission of actual burglaries. Eventually, he threatened to harm or kill Spencer and her daughter and, in one instance, even attempted to force Spencer’s car off the road. Spencer testified that she allowed the harassment to continue without reporting the matter to police because of his threats, his parents’ pleas, and her concern for his welfare.

By summer 1995, however, Spencer began making complaints to the police. At the end of July, she swore out a warrant against Daker for stalking. A hearing was held in the Magistrate Court of Fulton County on August 1. Although the hearing was continued on the condition that he have no contact with Spencer, he came to her apartment and made numerous telephone calls to her on August 11. As a result, he was arrested. But following a hearing on August 15, he was again released on the condition that he have no contact with Spencer.

To escape Daker’s harassment, Spencer moved from her apartment and began living in a house with Carmen Smith on September 1. On that date, Daker appeared at Spencer’s place of employment and was arrested again. During his incarceration, he began making threatening telephone calls to Spencer from jail. At a hearing on September 20, the magistrate issued a written order releasing Daker into the custody of his attorney on the condition that counsel have him admitted to Charter Peachford Hospital. The court ordered Daker to remain there or in another facility until released by his attending physician. Again, as a condition of his release, Daker was ordered to have no contact of any type with Spencer. After Daker was admitted to the hospital, the harassing telephone calls to Spencer stopped.

When Daker was released from inpatient psychiatric treatment on October 13, he began calling Spencer at work and at home, attempting to disguise his voice. Spencer recorded telephone calls made on October 14 and 20. She testified that after she had taken her phone off the hook on October 20, Smith’s phone rang seconds later and Smith immediately exclaimed that “my f — ing stalker was calling her.” Three days after the October 20 telephone call, Smith was killed by foul play, and her homicide remains unsolved.

According to Daker, Spencer had initiated a romantic relationship with him and the contacts between the two of them were consensual. Although Daker acknowledged acting furtively at times, he attributed this to an attempt by him and Spencer to keep their relationship secret because of the difference in their ages. Daker’s claim that he and Spencer had been romantically involved was supported in various respects by testimony from other defense witnesses.

1. Daker charges the trial court with error in denying his challenge under Batson v. Kentucky to the State’s use of a peremptory strike to remove the sole black member of the jury venire.

The United States Supreme Court has established a three-step test for evaluating challenges to peremptory strikes. Once the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step 1), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If a race-neutral explanation is tendered, the trial court must then decide (step 3) whether the opponent of the strike has proved purposeful racial discrimination. The trial court’s decision on a Batson motion rests largely upon assessment of the prosecutor’s state of mind and credibility; it therefore lies peculiarly within a trial judge’s province. The trial court’s factual findings must be given great deference and may be disregarded only if clearly erroneous.

The prosecutor stated that he struck the juror in question because she might have been overly sympathetic to Daker as a result of her academic background in psychology and study of depressive reactions. Another proffered reason was that the juror indicated a possible distrust of law enforcement during voir dire questioning. Daker claims that these reasons were pretexts for racial discrimination.

He points out that three other prospective jurors who had actually suffered from depression were accepted by the State. But at least two of those prospective jurors were also victims of stalking. On balance, the prosecutor reasonably could have concluded that those jurors would have been more sympathetic to the prosecution than the defense.

Daker also argues that during voir dire examination the excluded juror did not in fact give any indication that she distrusted police. We are unable to resolve this argument because voir dire was not transcribed. Consequently, we must presume that the responses given by the juror supported the trial court’s ruling. The court’s finding that the strike was not exercised in a racially discriminatory fashion is not clearly erroneous.

2. Daker contends that the trial court erred in admitting evidence of prior difficulties between Spencer and him without requiring the State to comply with the notice requirements of Uniform Superior Court Rules 31.1 and 31.3 (B). There is no merit in this complaint, as the requirements of these rules do not apply to instances of prior difficulties between the defendant and victim.

3. Daker charges the trial court with error in admitting in evidence an audiotape of a telephone conversation between him and Spencer.

The tape was made by Daker. He argues that the State did not lay the foundation required for its admission because gaps in it show that it had been altered while in police custody. Because the evidence authorized the court to find that the gaps were caused by the manner in which Daker had recorded the conversation, we find no error in its admission in evidence.

4. Daker contends that the trial court erred in admitting Spencer’s testimony concerning Smith’s October 20 exclamation.

This testimony was admitted in evidence under the “necessity” exception to the hearsay rule, which applies to out-of-court statements not within any other recognized hearsay exception. Under this exception, hearsay may be admitted if there is both a necessity for its admission and a circumstantial guaranty of its trustworthiness.

(a) Daker first argues that Smith’s hearsay statement lacked the necessary guaranty of trustworthiness. There is no merit in this argument, because the statement qualifies as a spontaneous reaction to a startling event. Therefore, the statement was admissible under the long-recognized “spontaneous declaration” exception to the hearsay rule. Statements admissible under a firmly rooted hearsay exception carry sufficient indicia of reliability.

(b) Daker next complains of the court’s admission of Spencer’s testimony that Smith had died.

When Spencer was asked to explain why Smith did not appear as a witness, the defense objected to testimonial or documentary evidence that Smith had been killed. The prosecution then argued that because her hearsay statement had been admitted under the necessity exception to the hearsay rule, the State was required to account for her unavailability, and a certified copy of the death certificate was the preferable mode of proof. Defense counsel offered to stipulate that Smith was unavailable, because proof of her death would prove extremely prejudicial to Daker due to the resulting inference that he was the perpetrator of the homicide. The court overruled Daker’s objection and allowed Spencer to testify that Smith was dead.

Because Smith’s statement was admissible under the spontaneous declaration exception to the hearsay rule, there was no need to prove her unavailability or her death. But inasmuch as the State was not allowed to present evidence concerning the circumstances surrounding her death or the investigation of Daker as a suspect, we find that the admission of this evidence was not so harmful as to constitute reversible error.

5. Daker contends that the court erred in sustaining the State’s objection when defense counsel asked Spencer whether she had attempted to seduce other teenage boys. Daker claims that the testimony sought to be elicited was material, because part of his defense was that Spencer had accused him of stalking to cover up the fact that she was seducing him and other boys his age.

Although Daker was not allowed to ask the question, he did introduce evidence of Spencer’s romantic interest in or involvement with two other college-age men. It thus appears that the court would have allowed Daker to present evidence of attempts by Spencer to seduce even younger men, if he had attempted to do so. We, therefore, do not find that Daker was harmed by the limitation imposed on his cross-examination of the witness.

6. Daker contends that the court erred in admitting in evidence two compositions written by him and found by police in a trash can in his bedroom.

During the investigation into Smith’s death, Daker’s residence was searched and the compositions were found. In them, he admitted that he despised Spencer because of what she had done to him and wanted to destroy her without actually killing her.

Daker argues that the compositions were written at the direction of his psychiatrist and were, therefore, inadmissible under OCGA § 24-9-21 (5), which creates an evidentiary privilege for “Communications between psychiatrist and patient.” Because the compositions were found in a trash can with no showing by Daker that they were ever given to his psychiatrist, the court was authorized to find that they had not been and were not intended to be communications between psychiatrist and patient.

7. Daker contends that the court erred in sustaining the State’s objection to evidence showing that in April 1995 he decided to be tested for AIDS. Daker argues that this evidence was relevant to corroborate his claim that he and Spencer were having sexual relations.

But Daker’s submission to AIDS testing was of questionable probative value as to the identity of any sexual partner. The trial court did not abuse its discretion in refusing to admit this evidence.

8. Daker contends that the court erred in refusing to investigate whether Spencer had committed perjury and whether counsel for the State had suborned perjury.

Outside the presence of the jury, the prosecuting attorney recalled Spencer to the stand and elicited testimony that Daker had told her that he had devised a plan for a “perfect murder” through which he could kill her and her daughter without getting caught. On cross-examination, Spencer testified that Daker made this statement in summer 1995 and that she had informed the prosecuting attorney, other members of the district attorney’s office, and various police officers of the statement before trial.

Defense counsel later represented to the court that the prosecuting attorney had shaken her head negatively when Spencer testified as to the time she had informed counsel of Daker’s statement. Although defense counsel withdrew the charge that the prosecutor had suborned perjury, he claimed that counsel for the State was nonetheless under an ethical obligation to inform the defense if it became aware that Spencer had committed perjury. After a prolonged discussion on this issue failed to produce a resolution, the prosecutor elected not to recall Spencer to testify. The court indicated that it intended to conduct an independent investigation of the matter, but later declined to do so and ruled that the defense could “take whatever steps” it deemed advisable. The matter was not pursued farther.

As Daker withdrew his subornation of perjury claim against the State at trial, the question on appeal is whether the trial court should have conducted its own investigation as to whether Spencer committed perjury. Because Daker cites no authority in support of his argument that such an investigation was demanded, and because there were numerous witnesses whom Daker could have called to establish his claim that Spencer committed perjury, we find no error by the trial court. Moreover, even if the testimony given by Spencer was false, it was not presented to the jury.

9. We will not consider Daker’s objections to the court’s admission of testimony relating to the psychological profile of a stalker or his objection to the court’s refusal to allow defense counsel to ask a prosecution witness whether Spencer had provided him with prescription drugs, as the objections raised by Daker on appeal are based on grounds which were not raised at trial.

10. Contrary to arguments advanced by Daker on appeal, the record shows that defense counsel was allowed to ask Spencer whether she had ever provided Daker with prescription drugs.

11. Although the trial court refused to allow defense counsel to ask a defense witness whether Spencer was taking the antidepressant Prozac, Spencer had earlier testified that she was taking antidepressants. Daker sought to establish that Spencer was taking Prozac to prove that her thinking was delusional. Because Daker has not shown that Prozac is prescribed for or results in delusional thought, he has not established that the trial court abused its discretion in sustaining the State’s objection to the question posed.

12. The court did not abuse its discretion by refusing to allow defense counsel to ask Spencer whether she would have been suffering from paranoid delusions if Daker had not been stalking her. This was a proper subject of expert opinion. Moreover, an affirmative answer to the question would not have aided the defense.

13. During defense counsel’s cross-examination of Spencer, he elicited a concession that she had lied when, during a taped telephone conversation with Daker, she “swore to God” that the conversation was not being recorded. In response to additional questioning, Spencer then acknowledged that she had also “sworn to God” when she began her trial testimony. Defense counsel thereupon stated that Spencer thus did not mind lying while swearing to God. We do not find any harmful abuse of discretion by the court in then instructing counsel to proceed to a different subject. Although the defense was not permitted to elicit an explanation from Spencer as to why she would swear falsely to Daker but not under oath, the fact that she had invoked the Lord’s name while making a false statement was shown.

14. We find no merit in Daker’s contention that the court erred in granting the State’s motion in limine to prohibit the defense from injecting Spencer’s character in evidence. The motion was granted provisionally, was thus subject to modification, and was in fact modified at trial.

15. Daker’s contention that the trial court erred in admitting an affidavit executed by his psychiatrist has not been preserved for appeal, as Daker’s objection to introduction of this evidence was not timely.

16. Daker has waived his contention that the court erred in admitting audiotapes of telephone conversations between him and Spencer on October 13 and 14, 1995, as the court reserved ruling on his objection to this evidence and a final ruling was never invoked.

17. Daker’s contention that the court erred in admitting testimony concerning a conversation between law enforcement officers which led to Daker’s arrest presents nothing for review. His objection was based on the State’s failure to lay a proper foundation for the testimony, and defense counsel did not state what the proper foundation was.

18. Daker’s complaints concerning improper comments made by the prosecuting attorney during closing arguments have been waived by his failure to object at trial.

19. Although Daker complains that the State was allowed to use certain portions of a presentence investigative report to enhance his sentence, the record shows that the trial court sustained his objection to use of the report in this manner.

20. We are unable to review Daker’s contention that the court erred in unsealing the presentence investigative report. The court unsealed the report based on written waivers signed by Daker. On appeal, Daker argues that the waivers did not authorize the unsealing of the report. But he has not shown where in the record the waivers can be found. Therefore, this enumeration will not be considered.

21. In Case No. A00A0401, Daker filed two motions to recuse with accompanying affidavits. In the motions, he sought recusal of the judges who presided at arraignment and trial based on allegations that the proceedings were conducted in an unfair manner and that no order had been entered on his motion for new trial. The latter allegation was unfounded, as the trial judge did enter an order denying Daker’s motion for new trial shortly before the first motion to recuse was filed. Because the trial judge was authorized to find that the motions to recuse were untimely and that the affidavits were legally insufficient, both motions were subject to denial on their face.

22. In Case No. A00A0402, Daker is appealing an order denying his motion for sentence modification.

Daker was convicted of two counts of aggravated stalking because of his nonconsensual contacts with Spencer on two separate dates. Daker argues that he was chargeable with no more than one count of aggravated stalking because this was all part of one course of conduct. In pertinent part, OCGA § 16-5-91 (a) states that “[a] person commits the offense of aggravated stalking when such person, in violation of a . . . condition of pretrial release, . . . contacts another person . . . without the consent of the other person for the purpose of harassing and intimidating the other person.” OCGA § 16-5-90 (a) provides that the term “harassing and intimidating” means: Here, the defendant engaged in a course of conduct as described in OCGA § 16-5-90 (a) which culminated in unauthorized contacts between him and Spencer on two separate dates. Consequently, his conviction on two separate counts of aggravated stalking under OCGA § 16-5-91 (a) was authorized. The record does not support Baker’s claim that a hearing on his motion for sentence modification was held in his absence.

a knowing and willful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear for such person’s safety or the safety of a member of his or her immediate family, by establishing a pattern of harassing and intimidating behavior, and which serves no legitimate purpose.

Decided April 11, 2000

Reconsideration denied May 10, 2000

Waseem Daker, pro se.

Patrick H. Head, District Attorney, Debra H. Bernes, W. Thomas Weathers III, Maria B. Golick, Assistant District Attorneys, for appellee.

Judgments affirmed.

All division judges concur.

       476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986).

       (Citations and punctuation omitted.) Williams v. State, 236 Ga. App. 190 (511 SE2d 561) (1999).

       See Meier v. State, 190 Ga. App. 625, 626 (1) (379 SE2d 588) (1989).

        Wall v. State, 269 Ga. 506, 509 (2) (500 SE2d 904) (1998).

       See Johnson v. State, 271 Ga. 375, 378 (4) (519 SE2d 221) (1999).

       OCGA § 24-3-1 (b).

       See Green, Ga. Law of Evidence (5th ed. 1999), § 225, p. 453.

       See Higgs v. State, 256 Ga. 606, 607 (3) (351 SE2d 448) (1987).

       See House v. State, 252 Ga. 409, 410-411 (2) (314 SE2d 195) (1984).

       Id.; OCGA § 24-3-3.

        Idaho v. Wright, 497 U. S. 805, 815 (110 SC 3139, 111 LE2d 638) (1990).

        Williams v. State, 191 Ga. App. 217, 218 (2) (381 SE2d 399) (1989).

       See Division 5, supra.

        Anthony v. State, 236 Ga. App. 257, 259 (511 SE2d 612) (1999).

        Hubbard v. State, 239 Ga. App. 632, 635 (3) (521 SE2d 678) (1999).

        Milford v. State, 178 Ga. App. 792, 793 (1) (344 SE2d 505) (1986).

        Ward v. State, 238 Ga. App. 540, 542 (2) (519 SE2d 304) (1999).

       See Court of Appeals Rule 27 (c) (3) (i).

       See Wellons v. State, 266 Ga. 77, 88 (19) (463 SE2d 868) (1995) (timeliness of motion); In re Phillips, 225 Ga. App. 478, 480-481 (2) (484 SE2d 254) (1997) (legal sufficiency of affidavit).

       See Fly v. State, 229 Ga. App. 374, 375 (1) (494 SE2d 95) (1997); Durant v. State, 222 Ga. App. 872, 873 (1) (476 SE2d 641) (1996).


author: Johnson, Chief Judge.

text:
    A00A1002.
    SMITH et al. v. MURRATH ENTERPRISES, INC.
    (534 SE2d 125)
   Johnson, Chief Judge.

In May 1981, Grady Smith and C. W. Smith purchased a portion of Woodhaven Downs subdivision. That parcel abutted an unpaved county road named Leggett Drive a/k/a Calvin Davis Circle (hereafter “Calvin Davis Circle”).

In 1998, Murrath Enterprises, Inc. purchased a large parcel of land on the side of Calvin Davis Circle opposite the Smiths’ parcel. Murrath Enterprises petitioned Gwinnett County to abandon Calvin Davis Circle, and the county commission approved the request for abandonment. The county commission then executed two quitclaim deeds: one to Murrath Enterprises for the portion of Calvin Davis Circle adjacent to its parcel and one to the Smiths for the portion of the road adjoining their parcel.

After receiving the quitclaim deed, Murrath Enterprises began clearing and grading its property. However, the Smiths attempted to stop the development by placing personal items on the portion of Calvin Davis Circle transferred to Murrath Enterprises. Murrath Enterprises sought a restraining order prohibiting the Smiths from trespassing and interfering with the development of its property. The trial court granted Murrath Enterprises a temporary restraining order and interlocutory injunction. The Smiths filed their answer and counterclaim, and Murrath Enterprises moved for summary judgment. The Smiths appeal from the trial court’s grant of Murrath Enterprises’ motion for summary judgment.

Decided April 19, 2000

Reconsideration denied May 10, 2000

Harrison & Harrison, G. Hughel Harrison, for appellants.

Chandler & Britt, Luther H. Beck, Jr., for appellee.

The Smiths argue that they are third-party beneficiaries to a contract between Gwinnett County and Murrath Enterprises. The Smiths complain that, in consideration for the county’s abandoning Calvin Davis Circle, Murrath Enterprises agreed to provide the Smiths with an easement for access to Taylor School Drive, but that the easement provided by Murrath Enterprises is unuseable. However, the Smiths have not shown that the county entered into any contract requiring Murrath Enterprises to provide an easement to the Smiths.

OCGA § 36-10-1 provides that all contracts entered into by a county governing authority shall be in writing and entered on its minutes. No party is entitled to the benefits of an alleged contract with a county unless there has been a full compliance with the requirements of the Code. According to the only minutes in the record, the Gwinnett County Commission voted, per staff recommendation, to abandon Calvin Davis Circle. There is no mention in the minutes about any easement to the Smiths. In addition, there is no written contract regarding any easement in the record. Thus, even if Murrath Enterprises agreed to provide an easement to the Smiths, there is no valid contract to which the Smiths are third-party beneficiaries. The trial court did not err in granting Murrath Enterprises’ motion for summary judgment.

Judgment affirmed.

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

        Cherokee County v. Hause, 229 Ga. App. 578, 580 (2) (494 SE2d 234) (1997).


author: Blackburn, Presiding Judge.

text:
    A98A0937.
    FOX v. THE STATE.
    (534 SE2d 549)
   Blackburn, Presiding Judge.

In Fox v. State, 235 Ga. App. 714 (509 SE2d 75) (1998), we affirmed the trial court’s denial of Fox’s motion to suppress evidence found in a search of his residence. In Fox v. State, 272 Ga. 163 (527 SE2d 847) (2000), the Supreme Court reversed our decision. Accordingly, the decision of this Court is vacated, and the decision of the Supreme Court is made the decision of this Court. The judgment is reversed.

Decided May 10, 2000.

John A. Nuckolls, for appellant.

Garry T. Moss, District Attorney, Cecelia Harris, Assistant District Attorney, for appellee.

Judgment reversed.

Eldridge, J., and McMurray, Senior Appellate Judge, concur.


author: Phipps, Judge.

text:
    A00A0178.
    ADAMS v. THE STATE.
    (534 SE2d 538)
   Phipps, Judge.

Earl Lewis Adams appeals his convictions of armed robbery and kidnapping. He raises two enumerations of error: (1) the trial court erred in admitting his confession into evidence because it was not freely and voluntarily given; and (2) the evidence was insufficient to support the convictions. We find that the trial court properly admitted Adams’s confession and that the evidence was sufficient, and we affirm.

Viewed in the light most favorable to the verdict, the evidence authorized the jury to find that the following occurred. In the days preceding January 31, 1998, Adams and his cousin Johnny Whitlock made plans to rob the Parkway Pantry convenience store in Griffin. They watched the store once or twice to see when the store clerk closed it. Then, on January 31, Adams drove Whitlock to the store near closing time, and Whitlock entered armed with a shotgun, covering his face with a blue knit skull cap with cut-out eyeholes. Whit-lock pointed the shotgun at the store clerk and ordered her to give him the money. The clerk gave Whitlock the money from the register and, pursuant to an order from Whitlock, went into a closet. Whitlock then left the store and got into Adams’s car, and Adams drove away. Whitlock and Adams later split the money.

While executing search warrants, police found the blue knit skull cap in the glove compartment of Adams’s car and the shotgun under a mattress in Whitlock’s home. Afterward, Adams gave a signed confession.

1. Adams asserts that his confession was not voluntary because he feared reprisal from Whitlock. According to Adams, Whitlock had threatened to shoot him if he did not drive the getaway vehicle and had told him “what he would do” to him if he told anyone of Whit-lock’s participation in the robbery.

Nonetheless, Adams stated unequivocally in his confession that Whitlock was the principal actor in the robbery. This undermines his assertion that his confession was the product of fear instilled by Whitlock.

And even if Adams had confessed because he feared Whitlock: “[t]he coercion proscribed by Miranda must be caused by the police. Indeed, the Fifth Amendment privilege is not concerned with moral and psychological pressures to confess emanating from sources other than official coercion.”

With regard to the police, Adams testified at his Jackson-Denno hearing, “They went by the rules pretty much as far as I know.” The record shows that Adams was advised of all his applicable rights, that he had a high school education, that he did not appear to be under the influence of alcohol or drugs, that he expressed an understanding of the rights read to him, and that he never expressed a desire to invoke any of those rights. Adams further testified that the police did not threaten him or induce him to confess by a promise of benefit, that he gave his confession freely, and that “the truth came out.” We find no error in the court’s determination that Adams’s confession was freely and voluntarily given and therefore admissible.

2. Adams’s claim of insufficiency of the evidence is based on a contention that he lacked the requisite criminal intent because he acted under duress in driving Whitlock to and from the robbery location. Adams does not dispute that the evidence was sufficient to establish that the crimes of armed robbery and kidnapping occurred.

Whether Adams, acted with criminal intent or under duress was a question for the jury. A rational trier of fact could have found the requisite criminal intent from evidence that Whitlock and Adams had jointly watched the store to determine the best time to rob it, that they planned for Adams to receive a share of the robbery proceeds for acting as the getaway driver, and that Adams did in fact receive a share of the money taken in the robbery. We find that the evidence was sufficient to convict Adams of both charges.

Judgment affirmed.

Johnson, C. J, and McMurray, Senior Appellate Judge, concur.

Decided May 10, 2000.

Sullivan & Sturdivant, Harold A. Sturdivant, Michele K. Ogle-tree, for appellant.

William T McBroom III, District Attorney, Daniel A. Hiatt, Assistant District Attorney, for appellee.

       (Citations and punctuation omitted.) Cook v. State, 270 Ga. 820, 826 (2) (514 SE2d 657) (1999).

       See Kendrick v. State, 146 Ga. App. 513, 514 (1) (b) (246 SE2d 505) (1978).

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


text:
    A00A0320.
    STEWART v. THE STATE.
    (534 SE2d 544)
   Phipps, Judge.

Logan Stewart appeals his theft by shoplifting conviction on the grounds that the evidence was insufficient to support the conviction and that the court erred in not charging the jury on the definition of an accessory after the fact. We find that the evidence was sufficient to support the conviction and that a charge on accessory after the fact was not appropriate. For these reasons, we affirm Stewart’s conviction.

Viewed in the light most favorable to the verdict, the evidence authorized the jury to find that the following occurred. On May 20, 1997, Stewart and Crawford drove from Atlanta to Newnan to visit girls Crawford had met the weekend before. Crawford became ill on the way, but they continued on their trip. Once in Newnan, they were unable to locate the girls and went instead to a Wal-Mart store.

As Crawford exited the car, he told Stewart, ‘You know what it is,” intending to convey to Stewart that he would attempt to shoplift merchandise from the store if he had an opportunity to do so. Stewart, who had driven the car there and was not going into the store, replied, “I’ll be looking out for you. I’ll be sitting out in the open. I’ll be ready to go when you come out of there.” Crawford then responded, “Just be close by. Don’t have me running around the parking lot looking for you.” Stewart parked the car far to one side of the Wal-Mart store, away from other cars, and reclined his seat to a low-lying position.

Crawford entered Wal-Mart and went to the bathroom. Afterward, he placed several cartons of cigarettes in a shopping bag and proceeded hastily to the exit of the store, cognizant that a store clerk was attempting to approach him. At the exit, a store manager told Crawford he needed to present his receipt for the merchandise. Crawford then fled the store across the parking lot to the car occupied by Stewart. Wal-Mart employees followed Crawford from the store, calling to a male co-worker in the parking lot to stop Crawford.

As Crawford ran across the parking lot to the car, yelling “Let’s go!” repeatedly, Stewart started the car. Crawford threw the merchandise into the car, jumped in and closed the door. Stewart sped away from the store, recklessly running a stop sign, exiting through the entrance to the parking lot and making a u-tum onto the highway. As he drove toward Atlanta at 91 mph, Stewart was stopped by a highway patrolman.

1. Stewart and Crawford were jointly indicted for theft by shoplifting. One commits theft by shoplifting:

when he, alone or in concert with another person, with the intent of appropriating merchandise to his own use without paying for the same or to deprive the owner of possession thereof or of the value thereof . . . [c] onceáis or takes possession of the goods or merchandise of any store or retail establishment.

One is culpable as a party to a crime, even if he did not directly commit it, if he “[intentionally aids or abets in the commission of the crime” or “[intentionally advises, encourages, hires, counsels, or procures another to commit the crime.”

On appeal, the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility. In evaluating the sufficiency of the evidence, the relevant question is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Stewart asserts that he did not know that Crawford would attempt to steal merchandise from Wal-Mart and that he is not guilty of participating in the theft but only of assisting Crawford after the fact of the theft. At trial, Stewart testified that Crawford had complained of being ill before going into Wal-Mart, and he had assumed Crawford had gone into the store to purchase medication.

[P]resence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred. If the defendant had knowledge of the intended crime and shared in the criminal intent of the principal actor, he is an aider and abettor.

Decided May 10, 2000.

Sanders, Haugen & Sears, Walter S. Haugen, for appellant.

Peter J. Skandalakis, District Attorney, Brett E. Pinion, Todd A. Orston, Assistant District Attorneys, for appellee.

Crawford testified that although he and Stewart did not explicitly discuss a plan for shoplifting, he believed Stewart had understood his plans. Crawford explained, “When people are living in the type of environment that we were living in and they out in the street and they doing certain things that they do, like go into stores and shoplift, stealing, writing bad checks, whatever they do, that’s what it was.”

A rational trier of fact could have found from Stewart’s and Crawford’s words and conduct that Stewart knowingly agreed to act, and did act, as a getaway driver to facilitate Crawford’s commission of theft by shoplifting. To the extent the evidence was circumstantial, it excluded every reasonable hypothesis save that of guilt and, therefore, was sufficient to convict Stewart.

2. Stewart asserts in his second enumeration of error that the court should have charged the jury that “[a]n accessory after the fact is not a party to a crime.”

“An accessory after the fact is not a party to the crime under OCGA § 16-2-21, but the act constitutes the separate offense of obstruction of justice under OCGA § 16-10-24.” Because Stewart was neither indicted nor tried for the offense of felony obstruction of justice and because it was not a lesser included offense of the charge upon which he was tried, the court did not err in refusing to give the requested charge.

Judgment affirmed.

Johnson, C. J, and McMurray, Senior Appellate Judge, concur.

       OCGA § 16-8-14 (a) (1).

       OCGA § 16-2-20 (b) (3).

       OCGA § 16-2-20 (b) (4).

       (Citations, punctuation and emphasis omitted.) Johnson v. State, 239 Ga. App. 886 (522 SE2d 478) (1999)

       See Purvis v. State, 208 Ga. App. 653-655 (433 SE2d 58) (1993).

       (Citations, punctuation and emphasis omitted.) McWhorter v. State, 198 Ga. App. 493 (1) (402 SE2d 60) (1991).

       See generally OCGA § 24-4-6; compare McWhorter, supra; Bell v. State, 156 Ga. App. 190-191 (274 SE2d 153) (1980).

        Martinez v. State, 222 Ga. App. 497, 499 (2) (474 SE2d 708) (1996).

       Id. at 500.


author: Ellington, Judge.

text:
    A00A0578.
    CARNES BROTHERS, INC. v. COX.
    (534 SE2d 547)
   Ellington, Judge.

Carnes Brothers, Inc. appeals from the trial court’s order vacating its dismissal of Darlene Cox’s complaint without prejudice for failure to file a pretrial order in this slip and fall premises liability action. Because we find no abuse of discretion, we affirm.

Cox brought this suit against Carnes Brothers on January 5, 1996, by refiling her complaint pursuant to the renewal statute, OCGA § 9-2-61. The previous action was dismissed on September 27, 1995, when Cox failed to timely file her portion of the pretrial order. On September 2, 1997, the trial court notified the parties that pretrial orders were due on September 30, 1997, for cases scheduled to be on the October 13, 20, and 27, 1997 trial calendars. This was the third time the case had appeared on a trial calendar and the third time Cox was directed to file a pretrial order. Twice, Carnes Brothers filed and served a copy of their portion of the pretrial order on Cox. Cox did not file her portion of the pretrial order. On September 30, 1997, the trial court dismissed Cox’s complaint without prejudice. The dismissal order was never served upon Cox, however, because the court’s staff misaddressed the envelope. Cox’s attorney, assuming the case was still on the trial calendar, filed a conflicts letter on October 17, 1997.

On April 23,1998, Cox’s attorney wrote the court a letter, asking that the case be reinstated. Counsel explained that he had only recently learned of the dismissal and that because of a secretarial problem, the court’s many previous orders directing Cox to file pretrial orders had been misfiled or lost. Cox’s attorney threw himself on the mercy of the court and asked for a lesser penalty, one that would not punish his client for his negligence. The court, in an order dated June 23, 1998, acknowledged that the dismissal order had been returned as undeliverable because it was misaddressed, informed the parties that counsel’s letter was treated as a request pursuant to OCGA § 9-11-60 (g) to file a motion to vacate or set aside the dismissal, and gave Cox until July 13, 1998, to file the motion.

Cox timely filed a motion to vacate the dismissal order. The trial court conducted a hearing, and Cox filed a post-hearing brief to which Carnes Brothers filed no response. On August 17, 1998, the trial court entered an order finding that Cox was entitled to receive a copy of the dismissal order pursuant to OCGA § 15-6-21 and was further “entitled to have the order set aside and reinstated so that she would be in the same posture as she would have been after the order of dismissal was entered on September 30, 1997.” The court then, exercising its “discretionary power to reconsider the order within the same term of court,” granted the motion to vacate the dismissal order, thereby reinstating the case. Further, the court determined that attorney fees should be imposed against Cox for unnecessarily expanding the proceedings.

OCGA § 9-11-60 (g) provides that clerical mistakes in orders “may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders.” Because the trial court conceded its own failure to comply with the notice requirements of OCGA § 15-6-21 (c), we agree that the trial court properly set aside and then reentered the dismissal order. OCGA § 9-11-60 (g); Cambron v. Canal Ins. Co., 246 Ga. 147, 148-149 (1) (269 SE2d 426) (1980); Kendall v. Peach State Machinery, 215 Ga. App. 633, 634 (2) (451 SE2d 810) (1994). The reentered dismissal order was effective as of August 17,1998, the date it was actually reentered, and not as of September 30, 1997, as a nunc pro tunc order. See id. at 634, n. 1. Just as this procedure commences a new 30-day period during which a party may appeal the reentered order, it likewise restarts the period during which a party may pursue any remedies it may have in the trial court. Thus, the reentry of the dismissal order placed it once again “within the breast of the court.” See Cambron, 246 Ga. at 148-149; Piggly Wiggly Southern v. McCook, 216 Ga. App. 335, 337 (1) (454 SE2d 203) (1995). The trial court’s decision immediately thereafter to vacate the dismissal order was made within the term of court in which the dismissal order was reentered and not outside the term of court as Carnes Brothers argues. Consequently, the criteria of OCGA § 9-11-60 (d) do not apply to the court’s decision to vacate the dismissal order. Piggly Wiggly Southern v. McCook, 216 Ga. App. at 337. In this case, the trial court had the inherent power during the same term of court in which the order was reentered to reverse, correct, revoke, modify or vacate it in the exercise of its discretion. Id. We will not reverse a trial court’s decision to vacate its order of dismissal absent a clear abuse of discretion. See T. J. Brooklyne, Inc. v. Sullivan 75, L.P., 239 Ga. App. 588, 589 (1) (521 SE2d 644) (1999). Here, the trial court dismissed the complaint as a sanction for Cox’s failure to comply with its previous directions to file pretrial orders. The trial court’s decision to vacate the dismissal and to substitute a less severe sanction, though generous under the circumstances, was within the sound exercise of its discretion. We find no error.

Decided May 10, 2000.

Eason, Kennedy & Associates, Richard B. Eason, Jr., Carolyn J. Kennedy, for appellant.

Fred S. Gates, for appellee.

Judgment affirmed.

Ruffin, J, concurs. Andrews, P. J, concurs in the judgment only.

       The trial court stated: “In the interest of judicial economy, the Court will not go through the futile steps of reinstating the order and setting it aside.” In light of the court’s specific findings, we interpret this to mean that the trial court found it unnecessary to issue a separate order setting aside and reentering the dismissal prior to filing an order vacating it. The court could, of course, achieve both ends in one order. For the sake of clarity, however, such an order should specifically state that the dismissal order was set aside for lack of proper notice, reentered, and then immediately vacated.


author: Andrews, Presiding Judge.

text:
    A00A0776.
    CULLUM v. CHATHAM COUNTY BOARD OF TAX ASSESSORS.
    (534 SE2d 535)
   Andrews, Presiding Judge.

Patricia Cullum appeals from the trial court’s order granting the Chatham County Board of Tax Assessors’ (Board) motion for summary judgment. Cullum appealed to the superior court after the Chatham County Board of Equalization (Board of Equalization) denied her appeal of the tax assessor’s increase in the appraised value of her property for 1998. Cullum argued below and on appeal that OCGA § 48-5-299 (c) should be read to prohibit the tax assessor from changing her property value for two years because she appealed the valuation in 1997. But, the plain language of OCGA § 48-5-299 (c) states that only those real property values established by appeals to the Board of Equalization or superior court may not be changed for two years without investigating factors currently affecting the fair market value. Because Cullum’s property value in 1997 was not determined by an appeal to either the Board of Equalization or superior court, the tax assessor was not prohibited from raising the appraised value of her property for 1998.

This case arose when the Board notified Cullum on June 13, 1997, that the appraised value of her property had been raised to $182,000 for the year 1997. Cullum appealed the increase, claiming it was excessive. The Board reviewed this appeal and lowered the appraised value to $171,000, as provided for in OCGA § 48-5-311 (e) (2) (A). Cullum accepted this reduction.

On July 2, 1998, the Board notified Cullum that the appraised value of her property had been raised to $184,000 for the year 1998. Cullum again appealed the valuation, this time claiming that the increase in valuation violated OCGA § 48-5-299 (c) which prohibits the Board from changing the value of the property for two years after an appeal to the Board of Equalization or superior court.

This time the Board declined to lower the value and forwarded the appeal to the Board of Equalization. The Board of Equalization held a hearing on the appeal, and Cullum argued that the value of the property had been established by an appeal the year before and had not been returned at a different value for the following year; therefore, the Board had no authority to raise the value during the next two years. Nevertheless, the Board of Equalization upheld the valuation at $184,000. Cullum then appealed this decision to the superior court.

The Board filed a motion for summary judgment on Cullum’s claim, contending that because the Board itself had lowered the valuation, Cullum had neither appealed her valuation to the Board of Equalization nor to the superior court and, therefore, OCGA § 48-5-299 (c) did not apply to her revaluation. The superior court agreed and granted the Board’s motion for summary judgment. This appeal followed.

This case turns on the interpretation of the first sentence of OCGA § 48-5-299 (c):

Real property, the value of which was established by an appeal in any year, that has not been returned by the taxpayer at a different value during the next two successive years, may not be changed by the board of tax assessors during such two years for the sole purpose of changing the valuation established or decision rendered in an appeal to the board of equalization or superior court.

There is nothing ambiguous in the language of this statute. “[W]here the language of an Act is plain and unequivocal, judicial construction is not only unnecessary but is forbidden.” City of Jesup v. Bennett, 226 Ga. 606, 609 (176 SE2d 81) (1970). Moreover, the title and caption of the amendment to OCGA § 48-5-299 which later became subsection (c) make clear that this subsection was intended to apply only to reassessments established by the Board of Equalization or superior court. Moreton Rolleston, Jr. Living Trust v. Glynn County Bd. of Tax Assessors, 228 Ga. App. 371, 377 (491 SE2d 812) (1997). In Rolleston, we stated that the General Assembly’s intent in enacting this amendment was to prevent county tax assessors from reassessing property upward each year, even though they would often have to compromise, settle, or lose appeals before the board of equalization or superior court. In this way, the tax assessor could get at least a small reassessment most of the time, and often the property owner would eventually give up because of the costs in legal fees, litigation, and time. Id. at 375.

In this case, Cullum did not have to go to the Board of Equalization or superior court in 1997. She filled out a short form attached to the notice of reappraisal, and the Board later notified her they were adjusting the value.

Decided May 10, 2000

Frank R. Cullum, for appellant.

Barr, Warner, Lloyd & Henifin, A. Howard Henifin, for appellee.

Therefore, under the plain language of the statute and also looking to the intent of the General Assembly in enacting the amendment, we conclude that only those appeals which result in a valuation established by the Board of Equalization or superior court will prohibit the tax assessor from changing the value within the next two years. Because Cullum did not come under the prohibition of OCGA § 48-5-299 (c), the court properly granted summary judgment to the Board.

Judgment affirmed.

Ruffin and Ellington, JJ., concur.


author: McMURRAY, Senior Appellate Judge.

text:
    A00A0387.
    THE STATE v. DAVIS.
    (534 SE2d 159)
   McMURRAY, Senior Appellate Judge.

In Uniform Traffic Citations filed as of December 11, 1997, defendant Brian Christopher Davis was charged with driving under the influence of alcohol in violation of OCGA § 40-6-391 and improper left turn in violation of OCGA § 40-6-120. He was ordered to appear on January 8, 1998, to answer the charges. On January 8, Davis appeared with counsel and entered a waiver of arraignment, pleading not guilty and demanding a speedy jury trial. Trial was set for November 16, 1998, but the case was reset for March 9, 1999, due to counsel’s calendar conflict. The notations of the calendar clerk indicate this rescheduling was as a result of a request for a special setting at the behest of defense counsel. On January 19, 1999, trial counsel obtained leaves of absence covering entire weeks for the entirety of 1999: February 15 through February 19; April 19 through April 23; June 21 through June 25; August 23 through August 27; October 18 through October 22; and December 6 through December 10, because counsel “will be on vacation. . . .” On February 24, 1999, the Solicitor General preferred an accusation, again charging Davis with driving under the influence of alcohol and with improper left turn. On March 9, 1999, Davis moved for discharge and acquittal based on the State’s alleged failure to try him within two terms of his speedy trial demand. On August 10, 1999, this motion was. granted, and the charges dismissed. Pursuant to OCGA § 5-7-1 (a) (1), the State pursues this direct appeal. There is no question whether jurors were impaneled, and it is undisputed the case was not tried within the two terms allowed. Held:

Decided April 26, 2000

Reconsideration denied May 11, 2000

Joseph J. Drolet, Solicitor, Dawn Belisle-Skinner, Assistant Solicitor, for appellant.

Bruce F. Morriss, Daniel Shim, for appellee.

Any person against whom a true bill of indictment or an accusation is filed for an offense not affecting his life “may enter a demand for trial at the court term at which the indictment or accusation is filed or at the next succeeding regular court term thereafter. . . .” OCGA § 17-7-170 (a). If the accused is not tried when the demand is made or at the next succeeding regular term thereafter, provided at both court terms there were juries impaneled and qualified to try him, he shall be absolutely discharged and acquitted of the offense charged in the indictment or accusation. OCGA § 17-7-170 (b). The protections of this Code section apply to charges made by Uniform Traffic Citations. State v. Gerbert, 267 Ga. 169 (475 SE2d 621). But the accused can waive his right to automatic discharge “by some action on his part or on the part of his counsel, such as his own request for a continuance of the case. [Cit.]” Parker v. State, 135 Ga. App. 620, 621 (4) (218 SE2d 324). “A waiver of the demand would result from a continuance granted on the motion of the accused, or from any other act on his part showing affirmatively that he consented to passing the case until a subsequent term [outside the period allowed by his demand].” Walker v. State, 89 Ga. 482 (15 SE 553). Accord Adams v. State, 129 Ga. App. 839, 842 (201 SE2d 649).

In this case, counsel’s request for a continuance and consent to reset the trial to a time outside the period allowed by the demand for speedy trial waived defendant’s right to automatic discharge and acquittal under OCGA § 17-7-170 (b). The trial court erred in granting defendant’s motion.

Judgment reversed.

Johnson, C. J., and Miller, J., concur. Phipps, J., disqualified.


author: Ruffin, Judge.

text:
    A00A0606.
    DENNARD v. THE STATE.
    (534 SE2d 182)
   Ruffin, Judge.

Samuel Kevin Dennard was indicted for attempted child molestation, attempted statutory rape, attempting to entice a child for indecent purposes, and attempted sexual exploitation of children. Dennard filed general and special demurrers to the indictment, asserting that the various counts failed to allege the commission of any crime and were imperfect in form. The trial court overruled the demurrers, and we granted Dennard’s application for interlocutory review. For reasons discussed below, we hold that the trial court properly overruled Dennard’s general demurrers but erred in overruling his special demurrers.

Although our decision turns on the language of the indictment, we set forth briefly the relevant facts as they appear in the record. Dennard placed a message on an Internet newsgroup site stating that he was looking for girls between the ages of 15 and 18 who were interested in asphyxiation, strangulation, smothering, drowning, and hanging. Sergeant Darin Meadows responded to this inquiry, pretending to be a 15-year-old girl named “Shari.” Dennard and Shari exchanged a series of messages over the Internet, in which Dennard indicated that he was interested in a sexual relationship involving asphyxiation. During this correspondence, Dennard expressed his concern that, because Shari was underage, they needed to be careful. Dennard and Shari also exchanged photographs of each other.

In late November 1998, Dennard and Shari began discussing meeting at a local mall. During these conversations, Dennard indicated that he wanted to smother Shari with a chloroform-soaked pillow until she passed out and then have sex with her. On November 24, Dennard arranged to meet Shari at the mall the next day. Dennard stated that he wanted to take Shari to his house and make a videotape of him asphyxiating her and having sex with her while she was unconscious. Dennard stated that he would have a Sprite and a flower when he met Shari at the mall. The next morning, Dennard sent Shari an e-mail confirming their meeting and describing the clothes he would be wearing. Sgt. Meadows and other officers arrested Dennard at the mall, where he was holding a Sprite and a rose in his hand. Following the arrest, Meadows obtained a search warrant for Dennard’s home, where he found a large amount of child pornography and a photograph of “Shari” that Meadows had sent him over the Internet.

In two enumerations, Dennard argues that the trial court erred in overruling his general and special demurrers to the indictment. “A general demurrer challenges the sufficiency of the substance of an indictment,” and:

[t]he true test of the sufficiency of an indictment to withstand a general demurrer, or a motion to quash, is found in the answer to the question: Can the defendant admit the charge as made and still be innocent? If he can, the indictment is fatally defective.

If the indictment states the offense “in the terms and language” of the relevant Code section or “so plainly that the nature of the offense charged may easily be understood by the jury,” it “shall be deemed sufficiently technical and correct.”

A special demurrer, by contrast, attacks the form of an indictment. With respect to special demurrers,

[t]he true test of the sufficiency of the indictment is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction. It is useful to remember that the purpose of the indictment is to allow defendant to prepare his defense intelligently and to protect him from double jeopardy.

Where an accused raises the issue by the timely filing of a special demurrer, he is entitled to an indictment perfect in form and substance.

1. General demurrers.

(a) Count 1 of the indictment, charging Dennard with attempted child molestation, alleges that he took a “substantial step” toward the commission of the crime by “engaging in sexually explicit conversations via computer and driving to Houston [C]ounty to an arranged meeting place,” with the desire to arouse and satisfy his own desires and the desires of the child. Dennard asserts that the indictment is subject to general demurrer on this count because attempted child molestation cannot be committed except in the physical presence of the intended victim. Because the indictment does not allege such physical presence, Dennard contends that it is fatally defective.

Dennard relies primarily on Vines v. State, in which the Supreme Court held that the offense of child molestation could not be committed over the telephone but only in the presence of the child. In Vines, the Supreme Court noted that:

OCGA § 16-6-4 (a) provides that the crime of “child molestation” is committed when a person “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.”

Applying the rule that criminal statutes must be construed strictly against criminal liability, the Court held that “the State [must] prove that the victim and accused were together in order for the crime of ‘child molestation’ to be committed.”

Dennard argues that, because physical presence is necessary to prove the completed crime of child molestation, it is also necessary to prove the crime of attempted child molestation. However, a person is guilty of criminal attempt if “with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.” “The fact that further steps must be taken before the crime can be completed does not preclude ... a finding that the steps already undertaken are substantial.” Thus, the mere fact that physical presence is an element of the completed crime does not mean that it is indispensable in proving criminal attempt. The relevant question is whether the acts alleged in the indictment constitute a substantial step toward the commission of the crime.

To constitute a substantial step, an act must be one that is:

done in pursuance of the intent, and more or less directly tending to the commission of the crime. In general, the act must be inexplicable as a lawful act, and must be more than mere preparation. Yet it can not accurately be said that no preparations can amount to an attempt. It is a question of degree, and depends upon the circumstances of each case.

The phrase “inexplicable as a lawful act” does not mean that the act itself must be unlawful. “Rather, it means that the act, in light of previous acts, constitutes a substantial step toward the commission of a crime.”

In Howell v. State, we discussed the purpose of the “substantial step” requirement:

It is intended that the requirement of a substantial step will result in the imposition of attempt liability only in those instances in which some firmness of criminal purpose is shown. In addition to assuring firmness of purpose, the requirement of a substantial step will remove very remote preparatory acts from the ambit of attempt liability and the relatively stringent sanctions imposed for attempts. On the other hand, by broadening liability to the extent suggested, apprehension of dangerous persons will be facilitated and law enforcement officials and others will be able to stop the criminal effort at an earlier stage thereby minimizing the risk of substantive harm without providing immunity to the offender.

Thus, the “substantial step” requirement is intended to (1) ensure firmness of the defendant’s criminal intent, (2) insulate from liability ‘Very remote preparatory acts,” and (3) allow for apprehension of offenders at an early stage without providing immunity for their actions.

In this case, the indictment alleged that Dennard took a substantial step toward commission of the crime of child molestation by (1) engaging in sexually explicit conversations over the Internet and (2) driving to an arranged meeting place. Contrary to Dennard’s assertions, we cannot say as a matter of law that such actions cannot constitute a substantial step toward commission of the crime. As noted above, what constitutes a substantial step “ ‘is a question of degree, and depends upon the circumstances of each case.’ ” Moreover, the substantial step is to be considered “in light of previous acts.” Whether proceeding to the arranged meeting place constituted a substantial step will depend, among other things, upon the “firmness” of Dennard’s criminal intent, which can be established only at trial. Accordingly, we cannot say that the indictment is fatally defective in that it fails to allege the commission of a crime.

(b) Dennard makes the same argument with respect to Count 2 of the indictment, which charged him with attempted statutory rape. This count alleges that Dennard:

did attempt to commit the crime of Statutory Rape, engaging in sexual intercourse with a person under the age of sixteen (16), who is not the accused’s spouse, by taking the substantial step of discussing engaging in sexual intercourse via computer and driving to Houston County to an arranged meeting place for the purpose of engaging in sexual intercourse.

Dennard’s argument fails for the same reasons discussed in Division 1 (a). Because we cannot say as a matter of law that going to an arranged meeting place for the purpose of committing statutory rape is not a substantial step toward the commission of the offense, the indictment is not fatally defective for failure to allege the commission of a crime.

(c) Count 3 of the indictment charged Dennard with attempting to commit the offense of enticing a child for indecent purposes. A person is guilty of this offense if he “solicits, entices, or takes any child under the age of 16 years to any place whatsoever for the purpose of child molestation or indecent acts.” This count alleged that Dennard took a substantial step toward the commission of such offense “in that he arranged a meeting via the internet with a child under 16 years of age, to come to a place, for the purpose of child molestation or engaging in an indecent act, to wit: strangulation, sex acts, taking a picture and videotape of such acts.”

Dennard argues that this count of the indictment is fatally defective because it fails to allege asportation, which is an essential element of the crime of enticing a child for indecent purposes. As discussed above, however, the fact that something is an element of the completed offense does not mean that it is an element of the offense of criminal attempt. The relevant question is whether the defendant took a substantial step toward the commission of a crime. With respect to the crime of enticing a child for indecent purposes, it is immaterial whether the asportation element is achieved through the use of “physical force, enticement, or persuasion.” Thus, if the intended victim had responded to Dennard’s enticement by proceeding to the arranged meeting place, the element of asportation would have been satisfied. Although the indictment does not allege actual asportation, it does allege that Dennard arranged to meet the victim for the purpose of committing indecent acts. Accordingly, we cannot say that the indictment fails to allege the taking of a substantial step toward the commission of the crime.

Morris v. State, cited by Dennard, does not require a different result. In that case, a defendant pushed a child a distance of 65 feet toward his car in an attempt to commit child molestation, but the victim escaped before the act could be consummated. The defendant was convicted of enticement and appealed the trial court’s refusal to charge on criminal attempt. We affirmed, stating that ££[i]t is not required that the lewd act be accomplished or even attempted, merely that it was intended as motivation for the enticement. Thus, the standards for proving criminal attempt set forth in OCGA § 16-4-1 are not applicable.”

Contrary to Dennard’s suggestion, Morris does not stand for the proposition that a person may not be convicted of criminal attempt to entice a child for indecent purposes. Rather, Morris recognizes that, where the elements of asportation and intent are satisfied, the fact that the defendant does not actually commit the indecent act does not reduce the offense to criminal attempt. The crime is complete when the defendant asports the victim with the intent to commit an indecent act, regardless of whether the act is actually committed. Where, however, the defendant attempts to entice a child but is unsuccessful with respect to the asportation element, the defendant is properly charged with criminal attempt.

(d) Count 4 of the indictment charged Dennard with attempted sexual exploitation of children. This crime is set forth in OCGA § 16-12-100, which provides, among other things, that ££[i]t is unlawful for any person knowingly to employ, use, persuade, induce, entice, or coerce any minor to engage in or assist any other person to engage in any sexually explicit conduct for the purpose of producing any visual medium depicting such conduct.” In this count, the indictment alleged that Dennard took:

a substantial step toward the commission of the crime of Sexual Exploitation of Children, knowingly persuading, inducing, enticing a minor, to engage in sexually explicit conduct, for the purpose of producing videotape and photographs depicting such conduct, by engaging in sexually explicit conversations, and making plans to meet for the purpose of videotaping and photographing such acts and driving to Houston County.

For the same reasons discussed above, we believe that the indictment properly alleged that Dennard took a substantial step toward the commission of the crime by making arrangements to meet, the victim for the purpose of violating the statute and by proceeding to the meeting place. Although Dennard contends that there is no evidence he in fact possessed any video equipment at the time he was arrested, that is a matter properly addressed at trial and does not go to the sufficiency of the indictment.

(e) Dennard also argues that the recent enactment of the Computer Pornography & Child Exploitation Prevention Act of 1999, OCGA § 16-12-100.2, shows a legislative intent that his actions do not constitute a felony. Under the act, effective July 1, 1999, a person commits a high and aggravated misdemeanor when he:

intentionally or willfully . . . utilize [s] a computer on-line service, Internet service, or local bulletin board service to seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure, or entice a child or another person believed by such person to be a child, to commit any illegal act described in Code Section 16-6-2, relating to the offense of sodomy or aggravated sodomy; Code Section 16-6-4, relating to the offense of child molestation or aggravated child molestation; Code Section 16-6-5, relating to the offense of enticing a child for indecent purposes; or Code Section 16-6-8, relating to the offense of public indecency; or to engage in any conduct that by its nature is an unlawful sexual offense against a child.

This act did not become effective, however, until several months after Dennard committed the acts for which he is charged. Generally, “[a] defendant should be tried in accordance with the law in effect at the time the offense occurred.” “[W]here a crime is committed on a certain date, the penalty which attached to the crime on that date is the penalty exacted by our law.” The exception to this rule, however, is that “[w]hen a statute making described conduct a crime is repealed prior to final judgment on a conviction, the repeal ends the prosecution if the legislature has not provided otherwise in a saving clause.”

Although the enacting legislation contained the usual language that “[a] 11 laws and parts of laws in conflict with this Act are repealed,” there is no indication that the legislature intended to repeal any of the statutes under which Dennard was charged. Indeed, Dennard does not assert that the new statute repealed any existing laws. Rather, he claims that enactment of the new statute shows that the legislature recognized that none of the conduct proscribed by the statute was illegal under existing law. Contrary to Dennard’s assertion, however, it appears that the legislature intended to create a new type of crime — i.e., use of a computer for certain sexual purposes — regardless of whether such conduct was proscribed under any other statute, not because such conduct was not proscribed. To the extent that a defendant’s conduct before the effective date of the statute violated criminal statutes already in existence, there is no indication that the legislature intended to prevent prosecution under such statutes simply because the defendant utilized a computer in the commission of the crime.

2. Special demurrers. In his special demurrers, Dennard demurred to each count of the indictment on the ground that it failed to set forth the name of the alleged victim. On appeal, he argues that the trial court erred in denying his special demurrers on this basis. We agree.

We have previously held that “[a]n accused is entitled to an indictment or accusation perfect in form as well as substance if he timely raises the question in writing on special demurrer.” In Irwin v. State, the Supreme Court held that “[flor the protection of the accused it is necessary that, in an indictment for an offense against the person of another, the person injured should be referred to by his correct name, if it be known, or by some name by which he is commonly and generally called.” Applying this rule, we have held that “[a]s a general rule, if an accusation charges the defendant with committing a crime against a person, the injured person should be identified in the accusation.” If, however, the gist of the crime is not an offense against another person, it is not necessary to name the victim. Thus, for example, in a prosecution for soliciting a prostitute, we have held that it is not necessary to name the person solicited, since “the gist of the offense is the harm done society by such unlawful solicitation.” Similarly, it is not necessary to name the victim in an indictment for burglary, since that is a crime against property.

In the present case, however, each of the crimes with which Dennard is charged is a crime against a particular person. That Dennard is charged with criminal attempt as opposed to the completed crime does not change this fact, since an attempt to commit an offense against another can be understood only with respect to the particular intended victim. We note that nothing in the indictment indicates that the intended victim was in fact an undercover officer, as opposed to an actual child. Thus, on its face, the indictment charges Dennard with attempting to commit various crimes against an actual unnamed victim, and nothing in the indictment puts him on notice of who that victim is.

If the trial has already occurred before we review the merits of a special demurrer, we will not reverse a conviction in the absence of prejudice to the defendant, since that would amount to “a mere windfall to defendant and contribute [ ] nothing to the administration of justice.” Had this case proceeded to trial and verdict under the current indictments, we do not believe that reversal would be necessary due to the failure to name the intended victim, since it is apparent that Dennard understands the nature of the charges against him based on information gleaned from sources other than the indictment itself. However, because we are reviewing the indictment on interlocutory appeal, before any trial, we must apply the rule that a defendant who has timely filed a special demurrer is entitled to an indictment perfect in form and in substance. An indictment alleging a crime against another is not perfect in form if it contains no information as to the alleged victim. Accordingly, we must reverse the trial court’s order denying Dennard’s special demurrers.

3. Due to our ruling in Division 2, it is unnecessary to address Dennard’s remaining contentions, including his contention that the trial court should have granted his motion to suppress evidence.

Judgment affirmed in part and reversed in part.

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

Decided April 28, 2000

Reconsideration denied May 11, 2000

Groover & Childs, Frank H. Childs, Jr., Amy Dever, for appellant.

Kelly R. Burke, District Attorney, Katherine E. Kelley, Assistant District Attorney, for appellee.

       (Punctuation omitted; emphasis in original.) Dunbar v. State, 209 Ga. App. 97, 98 (2) (432 SE2d 829) (1993).

       (Punctuation omitted.) Jenkins v. State, 121 Ga. App. 103, 104 (1) (172 SE2d 845) (1970).

       OCGA § 17-7-54 (a).

        Dunbar, supra.

       (Citations, punctuation and emphasis omitted.) Snider v. State, 238 Ga. App. 55, 58 (2) (516 SE2d 569) (1999).

        King v. State, 176 Ga. App. 137, 139 (2) (335 SE2d 439) (1985). See also Wilcox v. State, 229 Ga. App. 227, 231 (2) (493 SE2d 724) (1997).

       269 Ga. 438 (499 SE2d 630) (1998).

       Id.

       Id. at 439.

       OCGA § 16-4-1.

       (Punctuation omitted.) Smith v. State, 189 Ga. App. 27, 30 (1) (375 SE2d 69) (1988).

       (Punctuation omitted.) Groves v. State, 116 Ga. 516, 517-518 (42 SE 755) (1902). See also Wittschen v. State, 259 Ga. 448-449 (383 SE2d 885) (1989).

       (Punctuation omitted.) Id. at 449.

       157 Ga. App. 451 (278 SE2d 43) (1981).

       (Punctuation omitted.) Id. at 456 (4).

        Groves, supra; Wittschen, supra.

       Id.

       OCGA § 16-6-5 (a).

       See Cimildoro v. State, 259 Ga. 788, 789 (1) (387 SE2d 335) (1990).

       Id.

       179 Ga. App. 228 (1) (345 SE2d 686) (1986).

       (Punctuation omitted.) Id.

       See also Peavy v. State, 159 Ga. App. 280, 282 (1) (a) (283 SE2d 346) (1981).

       OCGA § 16-12-100 (b) (1).

       OCGA § 16-12-100.2 (d) (1).

        Henson v. State, 205 Ga. App. 419, 420 (3) (a) (422 SE2d 265) (1992).

        Barton v. State, 81 Ga. App. 810, 814 (3) (60 SE2d 173) (1950). See also State v. Williams, 172 Ga. App. 708, 709 (2) (324 SE2d 557) (1984).

        Robinson v. State, 256 Ga. 564, 565 (350 SE2d 464) (1986).

       Ga. L. 1999, p. 234, § 3.

        King, supra; Wilcox, supra.

       117 Ga. 722 (2) (45 SE 59) (1903).

       Id.

        State v. Kenney, 233 Ga. App. 298, 299 (1) (a) (503 SE2d 585) (1998).

        Day v. State, 70 Ga. App. 819, 820 (29 SE2d 659) (1944). See also Kenney, supra.

        Arrington v. State, 160 Ga. App. 645, 646 (2) (288 SE2d 97) (1981).

       (Punctuation omitted.) Broski v. State, 196 Ga. App. 116, 118 (1) (395 SE2d 317) (1990).

       See Irwin, supra; Kenney, supra.


text:
    A00A0680.
    THOMPSON v. THE STATE.
    (534 SE2d 151)
   Ruffin, Judge.

Rebecca Thompson was convicted of driving without insurance. She appeals, contending that the evidence was insufficient to support the conviction and that the trial court erred in charging the jury. Because the trial court failed to charge an essential element of the crime, we reverse.

On February 15, 1999, Sergeant David Lamb of the Peachtree City Police Department stopped Thompson’s car because of a defective taillight. Thompson was unable to produce a driver’s license or proof of insurance, although Lamb determined through a computer check that she had a valid driver’s license. Thompson told Lamb that her insurance had been cancelled three months earlier but that she thought she had applied to have it reinstated. Lamb issued Thompson a Uniform Traffic Citation (UTC) charging her with the offense of “no insurance” in violation of OCGA § 40-6-10. At trial, Thompson admitted that she in fact had no insurance on the date she was stopped but claimed that she thought she had insurance.

At trial, the court refused to give Thompson’s requested instruction that the State must prove she knowingly operated a motor vehicle without insurance. Instead, the court charged that Thompson could be convicted if she operated the vehicle without proof of insurance or failed to provide proof of insurance to the officer. Based on these instructions, the jury found Thompson guilty of the offense of “No Insurance.”

1. On appeal, Thompson contends that the UTC charged her with violating OCGA § 40-6-10 (b), which makes it illegal to “knowingly operate [ ] . . . a motor vehicle without effective insurance on such vehicle.” She claims the trial court erred in refusing to charge that the State was required to prove that she knowingly operated a motor vehicle without insurance. The State, by contrast, contends that the UTC charged Thompson with violating OCGA § 40-6-10 (a) (1), which makes it illegal to drive with no proof of insurance. The State asserts that a defendant’s knowledge of the lack of insurance coverage is irrelevant in a prosecution under subsection (a) (1) and that the trial court therefore properly refused to give the proposed instruction.

The resolution of this appeal thus turns on whether the UTC charged Thompson with violating OCGA § 40-6-10 (a) (1) or (b). We have previously held that “[failure to keep proof of insurance coverage [subsection (a) (1)] and driving a vehicle without liability insurance [subsection (b)] are separate offenses.” Upon conviction of either offense, the defendant is subject to the same punishment — i.e., “a fine of not less than $200.00 nor more than $1,000.00 or imprisonment for not more than 12 months, or both.” The only difference is that, if a defendant is charged with no proof of insurance, he may reduce his punishment to a $25 fine by showing the court that insurance coverage was actually in place when the citation was issued.

It is important to note that subsections (a) (1) and (b) do not simply describe alternative ways of committing a single crime, but rather describe two separate offenses. This is in contrast to the DUI statute, OCGA § 40-6-391, which sets forth a single crime that may be committed in a variety of ways. Thus, we have held that a single UTC may properly charge a defendant with alternative methods of violating OCGA § 40-6-391. However, where a UTC charges a defendant with violating the statute in a particular way, the defendant may not be convicted of violating the statute in a different manner.

In Kevinezz v. State, the indictment alleged that the defendant violated the statute by “driving under the influence of drugs to the extent it is less safe for [her] to drive.” The indictment also charged her with vehicular homicide, alleging that she showed reckless disregard for the safety of another by “driving under the influence of drugs.” The Supreme Court held that the indictment did not put the defendant on notice that she could be convicted of violating OCGA § 40-6-391 (a) (5), which prohibits driving while there is any amount of drugs in a person’s blood or urine, but only put her on notice that she could be convicted of violating OCGA § 40-6-391 (a) (2), which requires proof that the drugs made her a less safe driver. In so holding, the Court noted that “the name of the alleged crime, . . . ‘driving under the influence,’ is descriptive of one or more of the ways in which the crime may be committed but is not descriptive of others.” The Court stated that “the defendant has the right to rely on the specific manner of committing the crime that is alleged in the indictment.” The Court also held that the defendant did not waive the right to raise this issue on appeal by failing to demur to the indictment before trial. In so holding, the Court reasoned that:

[the] indictment did specify a method by which the state alleged [defendant] committed the crime, and she was not required to specially demur to the indictment in order to avoid waiving her right to object to a jury charge on a method of committing the crime that was not specified in the indictment.

In this case, the UTC charged Thompson with committing the offense of “no insurance” in violation of “OCGA § 40-6-10.” We note that, under Georgia law, “the description of the offense charged prevails over any Code section cited.” As the Supreme Court noted in Kevinezz,

where the name of the alleged crime ... is descriptive of one or more of the ways in which the crime may be committed but is not descriptive of others . . . the prosecution cannot be permitted to prove that crime in a different manner than that alleged in the indictment.

Decided April 21, 2000

Reconsideration denied May 11, 2000

Rebecca A. Thompson, pro se.

Steven L. Harris, Solicitor, for appellee.

This rule applies with even more force in this case, where the relevant statute sets forth two different offenses, and not merely two ways of committing a single offense. Thus, because the UTC charged Thompson with only one crime and described that crime as “no insurance” rather than “no proof of insurance,” we believe it is properly construed as charging a violation of OCGA § 40-6-10 (b), rather than a violation of OCGA § 40-6-10 (a) (1). Because subsection (b) requires proof that the defendant knowingly operated the vehicle with no insurance, Thompson was entitled to a jury instruction as to that element. It is immaterial that she did not specially demur to the UTC, since the UTC did in fact charge her with a crime. Accordingly, the trial court erred in failing to charge that knowledge of the lack of insurance is an essential element of the offense.

2. Thompson also argues that the evidence was insufficient to support a conviction under OCGA § 40-6-10 (b) because there was no evidence she knowingly operated the vehicle without insurance. As we have previously recognized, however, “[a] conviction for a violation of this Code section will not be precluded merely by a defendant’s asserted lack of knowledge that his insurance policy had expired. Knowledge may be inferred from other facts and circumstances.”

Thompson admitted to the police officer that her insurance had been cancelled three months earlier, and she failed to present any evidence that she had obtained new insurance as of the date she was cited. Under these circumstances, the credibility of her claim that she believed she had insurance coverage is for the jury to decide under proper instructions from the trial court.

Judgment reversed.

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

       (Punctuation omitted.) Jones v. State, 195 Ga. App. 569, 570 (1) (394 SE2d 387) (1990).

       OCGA § 40-6-10 (a) (1), (b).

       OCGA § 40-6-10 (a) (4). Thus, under the plain language of the statute, a defendant charged with no proof of insurance may be convicted without proof that she knowingly operated the vehicle without insurance. If the defendant cannot show that she had insurance in place at the time the citation was issued, she is subject to the same penalties as if she were convicted under subsection (b), even though she may have believed such insurance was in place. Therefore, it would appear that the State could circumvent the knowledge requirement of subsection (b) by simply charging the defendant under subsection (a) (1), since a defendant who did not in fact have effective insurance coverage in place will not be able to provide proof of such coverage as contemplated by subsection (a) (4). (Indeed, this is what the State claims to have done in this case.) Although a literal reading of the statute compels this conclusion, we question whether the legislature intended such a result. Nevertheless, because we construe the UTC in this case as charging a violation of subsection (b), we need not consider the effect of this apparent inconsistency.

        Jones, supra.

       See Morgan v. State, 212 Ga. App. 394-395 (1) (442 SE2d 257) (1994).

       See id.

       See Kevinezz v. State, 265 Ga. 78, 79-83 (2) (454 SE2d 441) (1995).

       Id. at 80 (2).

       Id. at 79-80 (2).

       This subsection has since been redesignated as subsection (a) (6).

        Kevinezz, supra at 81 (2) (b).

       Id.

       Id. at 82-83 (2) (c).

       (Punctuation omitted.) In the Interest of B. C. G., 235 Ga. App. 1, 3 (1) (508 SE2d 239) (1998).

        Kevinezz, supra at 81 (2) (b).

       See Hunter v. State, 228 Ga. App. 846-847 (493 SE2d 44) (1997) (vacating conviction of kidnapping with bodily injury for failure to charge essential element).

        Quaile v. State, 172 Ga. App. 421, 423 (5) (323 SE2d 281) (1984).

       See id.


text:
    A00A0867, A00A0868.
    WYATT v. THE STATE (two cases).
    (534 SE2d 431)
   Andrews, Presiding Judge.

Louis E. Wyatt and Jill L. Wyatt were jointly indicted, tried, and found guilty of two counts of aggravated child molestation committed against their ten-year-old child. Their separate appeals are consolidated for disposition in a single opinion.

The child identified Louis and Jill Wyatt as his natural parents. The State presented testimony from the child and evidence of statements given by the child to police, counselors, and others showing: (1) that Mr. Wyatt placed his penis into the child’s anus on at least two occasions and into the child’s mouth on three or four occasions; and (2) that Ms. Wyatt knew Mr. Wyatt was doing these acts to the child, that she watched while the acts were committed, and that she did nothing to stop the acts. Other evidence showed that the Wyatts made the child watch them have sex with each other and with other people.

Case No. A00A0868 (Louis Wyatt)

1. Mr. Wyatt contends the trial court erred by admitting evidence of pornographic material found in a consent search of his residence. Since no objection was made at trial to the admission of this evidence, this claim was waived. Simpson v. State, 271 Ga. 772, 774 (523 SE2d 320) (1999).

2. Contrary to Mr. Wyatt’s claim, the State produced evidence establishing that the charged acts were committed in Floyd County.

3. The evidence was sufficient for a rational trier of fact to conclude that Mr. Wyatt was guilty beyond a reasonable doubt of both counts of aggravated child molestation. OCGA § 16-6-4 (c); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Case No. A00A0867 (Jill Wyatt)

4. Ms. Wyatt, who was charged as a party to the acts of aggravated child molestation committed by Mr. Wyatt, claims the evidence was insufficient to support her convictions.

While mere presence at the scene of the commission of a crime is not sufficient evidence to convict one of being a party thereto, presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred. If the defendant had knowledge of the intended crime and shared in the criminal intent of the principal actor, he is an aider and abettor. Hence, if the defendant was at the scene and did not disapprove or oppose the commission of the offense, a trier of fact may consider such conduct in connection with prior knowledge and would be authorized to conclude thé defendant assented to the commission of the offense, that he lent his approval to it, thereby aiding and abetting the commission of the crime.

Decided April 25, 2000

Reconsideration denied May 11, 2000.

Teddy L. Henley, for appellant (case no. A0OAO867).

James C. Wyatt, for appellant (case no. A00A0868).

Tambra P. Colston, District Attorney, C. Stephen Cox, Assistant District Attorney, for appellee.

(Citations, punctuation and emphasis omitted.) Butler v. State, 194 Ga. App. 208, 209 (390 SE2d 278) (1990). Although the child gave inconsistent statements as to whether Ms. Wyatt took any action to stop Mr. Wyatt from committing the charged acts, resolution of this conflict in the evidence was for the jury to resolve. Ahmed Al-Beti v. State, 210 Ga. App. 312 (436 SE2d 50) (1993). Based on evidence that Ms. Wyatt watched and did not disapprove or oppose Mr. Wyatt’s commission of the charged acts, and other evidence that she and Mr. Wyatt made the child watch them have sex, a rational trier of fact could find that Ms. Wyatt aided and abetted the commission of the charged crimes and was guilty beyond a reasonable doubt as a party to the crimes. OCGA § 16-2-20; Jackson v. Virginia, supra.

Judgments affirmed.

Ruffin and Ellington, JJ, concur.