text:
    A98A0527.
    DAVIS v. THE STATE.
    (501 SE2d 836)
   McMurray, Presiding Judge.

Defendant was tried before a jury and convicted of two counts of violating Georgia’s Controlled Substances Act by possessing Lorazepam and possessing marijuana. Defendant was also convicted of driving under the influence of alcohol and driving without proof of insurance. This appeal followed the denial of defendant’s motion for new trial. Held:

1. Defendant contends the trial court erred in denying his motion in limine and motion to suppress, arguing that the evidence supporting bis convictions was obtained as a result of an unlawful traffic stop.

Officer Richard Penson of the Rome City Police Department testified that he stopped defendant’s car because he noticed that defendant was not wearing the shoulder strap safety belt that was visibly provided in the car defendant was operating. OCGA § 40-8-76.1 (b) provides that “[e]ach occupant of the front seat of a passenger vehicle shall, while such passenger vehicle is being operated on a public road, street, or highway of this state, be restrained by a seat safety belt approved under Federal Motor Vehicle Safety Standard 208.” Because this safety standard does not necessarily require shoulder strap safety belts, defendant argues that Officer Penson’s observation regarding defendant’s failure to use his car’s shoulder strap safety belt does not support probable cause that defendant was violating OCGA § 40-8-76.1 (b). We do not agree.

Although Federal Motor Vehicle Safety Standard 208 may not require shoulder strap safety belts, it is undisputed that shoulder strap safety belts are an option under this federal regulation and that defendant’s car was so equipped. Thus, Officer Penson’s observation that defendant was not wearing his car’s shoulder strap safety belt supports probable cause for stopping defendant for violating OCGA § 40-8-76.1 (b). Defendant, nonetheless, argues that Officer Penson used this minor infraction as an unlawful pretext under OCGA § 40-8-76.1 (f) for stopping and harassing defendant. This Code subsection provides that “probable cause for violation of [OCGA § 40-8-76.1 (b)] shall be based solely upon a law enforcement officer’s clear and unobstructed view of a person not restrained as required by this Code section. Noncompliance with the restraint requirements of this Code section shall not constitute probable cause for violation of any other Code section.” OCGA § 40-8-76.1 (f).

“When a police officer makes a traffic stop based on his having a clear view of the occupants of the front seat of a vehicle not wearing their seat belts, he is in the same situation as a police officer making a stop pursuant to Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968), except that the initial stop is based on probable cause, not just a reasonable and articulable suspicion that an individual is, or is about to be, engaged in criminal activity. While the probable cause for the initial stop cannot itself be used as probable cause for arrests based on violations of other Code sections, once a stop for a seat belt violation is made, the language of OCGA § 40-8-76.1 does not preclude an officer from conducting a reasonable inquiry and investigation to insure both his safety and that of others. See Terry v. Ohio, supra at 20-27; State v. Armstrong, 223 Ga. App. 350 (477 SE2d 635) (1996). Clearly, the additional language of this Code section pertaining to probable cause was added for the purpose of prohibiting a search of a person or a vehicle based solely on the failure of an occupant of the front seat to wear a seat belt. However, the language was not intended to prevent an officer from making an arrest on additional offenses based upon separate probable cause ascertained through a reasonable inquiry and investigation following the initial stop. Obviously, an officer need not ignore the smell of alcohol emanating from the driver of a vehicle simply because the initial stop of the vehicle was for a seat belt violation.” Temples v. State, 228 Ga. App. 228, 230 (491 SE2d 444).

In the case sub judice, Officer Penson testified that, after asking defendant for his driver’s license and proof of insurance, he detected an odor of alcohol about defendant’s “person and inside of the car.” Officer Penson also testified that, instead of producing a driver’s license, defendant gave him an identification card indicating that defendant was an employee of a local law enforcement agency. Officer Penson testified that, after instructing defendant that he “still needed to see his driver’s license and insurance,” defendant produced a valid driver’s license but failed to produce proof of insurance. Officer Penson testified that he arrested defendant after defendant admitted consuming alcohol “earlier” that evening. This testimony authorizes the trial court’s finding that Officer Penson’s traffic stop was not arbitrary or harassing, in violation of OCGA § 40-8-76.1 (f). “ An officer conducting a routine trafile stop may request and examine a driver’s license and vehicle registration and run a computer check on the documents. See United States v. Guzman, 864 F2d 1512, 1519 (10th Cir. 1988). Accord Florida v. Royer, 460 U. S. 491, 501-502 (103 SC 1319, 75 LE2d 229) (1983) (airline ticket and driver’s license).’ Rogers v. State, 206 Ga. App. 654, 657 (2) (426 SE2d 209) (1992).” Temples v. State, 228 Ga. App. 228, 231, supra. Officer Penson’s observations, after stopping defendant for violating OCGA § 40-8-76.1 (b), independently support probable cause for defendant’s arrest. Accordingly, the trial court did not err in denying defendant’s motion in limine and motion to suppress.

2. Defendant contends the trial court erred in admitting scientific reports and testimony indicating that a substance found in defendant’s possession was marijuana. Defendant argues that this evidence should have been excluded at trial because the State waited until the first day of trial to have the suspected marijuana tested and, thus, avoided defendant’s discovery request for any written scientific reports.

OCGA § 17-16-2 (a) requires a defendant to provide “written notice to the prosecuting attorney that such defendant elects to have [Georgia’s Criminal Discovery provisions, OCGA § 17-16-1 et seq.,] apply to the defendant’s case.” Defendant did not provide such notice in the case sub judice. He, therefore, cannot complain that the State waited until the first day of trial to have the suspected marijuana tested. Wright v. State, 226 Ga. App. 848, 849 (4) (487 SE2d 405). Under such circumstances, and in the absence of proof that the State’s last-minute test of the suspected marijuana was designed to circumvent the discovery process, we find no basis for reversing defendant’s convictions. Wellborn v. State, 258 Ga. 570, 571 (1) (372 SE2d 220).

Decided April 17, 1998.

Barkley & Garner, Larry J. Barkley, James S. Garner III, for appellant.

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

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.


source: Caselaw Access Project

author: Judge Harold R. Banke.

license: Public Domain

text:
    A98A0692.
    KUNSELMAN v. THE STATE.
    (501 SE2d 834)
   Judge Harold R. Banke.

Christopher James Kunselman was convicted of burglary and possession of a knife with a blade three inches or longer during the commission of a crime. The record indicates that these were his first offenses. He received a twenty-year sentence on the burglary charge and a five-year consecutive sentence on the weapons charge. He enumerates four errors on appeal.

This case arose in the wake of Kunselman’s twenty-fourth birthday celebration. Kunselman was visiting his parents to help with some home improvements, but they were gone that evening, so he celebrated alone.

At around 1:30 a.m., after consuming a six-pack of beer and ten to twelve shots of tequila, Kunselman got bored and decided to take a walk. As he wandered down the street drinking a Pepsi, Kunselman noticed what he thought was an unoccupied house and decided to break into it. He cut a screen and entered the house through a front window, then broke a pane to open French doors in the hall. At that point, Kunselman heard the victim, an elderly woman, cry out and responded by knocking on her bedroom door and telling her he would not hurt her and was not a burglar. At that, he attempted to leave, but due to the darkness and his condition, he was unsuccessful. He did not attempt to open her door.

Upon hearing the intruder, the victim called the police. After their arrival, they immediately apprehended the inebriated Kunselman wandering near the victim’s bedroom door. The knife was in its sheath in his back pocket.

Kunselman was charged with attempted aggravated assault, burglary, and the weapons violation. The jury acquitted him of attempted aggravated assault. Held:

1. Kunselman maintains that the trial court’s jury instruction on criminal trespass as a lesser included offense requires reversal. He argues that the instruction in effect required unanimous agreement on the greater offense before the lesser could be considered.

In Cantrell v. State, 266 Ga. 700, 702-703 (469 SE2d 660) (1996), our Supreme Court clearly condemned the practice of requiring juries to unanimously agree on a greater offense before considering a lesser included offense. In supporting this well-reasoned conclusion, it embraced the language of cases from other jurisdictions which recognized that requiring acquittal before consideration of a lesser included offense was the functional equivalent to requiring unanimity. Id. These cases acknowledged the danger inherent in requiring the unanimity implicit in an acquittal first charge: that jurors with “substantial doubts about an element of the greater offense, [who] believe the defendant guilty of the lesser offense, [will] choose to vote for conviction of the greater [offense] rather than to hold out until a mistrial is declared, leaving the defendant without a conviction on any charge.” Id. at 702 (quoting Jones v. United States, 544 A2d 1250, 1253 (D.C. App. 1988)). As Cantrell observed, the practice “gives the prosecution an unfair advantage.” Id. at 702.

In the instant case, the trial court instructed the jury as follows: “with respect to the burglary count in Count 1, if you find the defendant not guilty of burglary, you would then and only then be authorized to consider the lesser included offense of criminal trespass on that count.” Compare Suggested Pattern Jury Instructions, Vol. II, Criminal Cases, p. 15 (2nd ed. 1991). Shortly thereafter, the court also gave the usual pattern charge requiring a unanimous verdict, instructing, “Whatever your verdict is, it must be unanimous, that is, agreed to by all 12 of you.”

The fact is, a jury faithfully following these instructions would have to render a unanimous verdict on the burglary charge before considering the criminal trespass charge. No jury could innately comprehend that unanimity was required on all occasions except when acquitting a defendant in the context of considering a lesser included offense. The charge’s practical effect is that the lesser included offense would never be considered absent a unanimous acquittal. Thus, we fail to see a qualitative difference between this case and the practice disapproved in Cantrell. We believe the charge as a whole was confusing on this critical issue and precluded consideration of the lesser included offense. Brewton v. State, 216 Ga. App. 346, 351 (6) (454 SE2d 558) (1995); see Duggan v. State, 225 Ga. App. 291, 296 (483 SE2d 373) (1997) (no error where trial court did not insist on unanimity before consideration of the lesser offense); accord Brewer v. State, 224 Ga. App. 656, 658 (3) (481 SE2d 608) (1997).

The pattern instruction on lesser included offenses, which Cantrell endorsed, avoids this confusion. Cantrell, 266 Ga. at 703. Rather than requiring an acquittal before consideration of the lesser offense, our pattern charge requires the inverse: a finding that the jurors do not believe beyond a reasonable doubt that the defendant is guilty of the greater offense. We believe there is a distinct legal difference between these two approaches. The pattern instruction circumvents the possibility that jurors will believe a unanimous acquittal is required before consideration of the lesser offense, a danger particularly real when, as here, an unanimity charge is given shortly after the instruction on lesser offenses. See Gunn v. Dept. of Transp., 222 Ga. App. 684, 685-686 (1) (476 SE2d 46) (1996) (confusing and irreconcilable instructions require reversal).

Where, as here, the jury was instructed that if it found Kunselman not guilty, “then and only then” could it consider the lesser offense, the danger of requiring acquittal first is particularly evident. Rather than “merely suggesting” the order in which the offenses should be considered, the charge mandated unanimity. Compare Harper v. State, 157 Ga. App. 480, 481 (2) (278 SE2d 28) (1981). It prevented the jury from giving any consideration to the lesser included offense. This result cannot stand in light of Cantrell’s condemnation of the unanimity requirement, endorsement of the pattern instruction, and reliance on Jones and Ogden. Recognizing the confusion engendered by the charge as a whole, we reverse with instructions to employ the pattern charge on lesser offenses during retrial.

2. We must reject Kunselman’s contention that the trial court erred in its charge on criminal trespass. The court charged the jury as follows: “criminal trespass is a lesser included offense of burglary. A person commits the offense of criminal trespass when he enters the land or premises of another for an unlawful purpose other than a felony or theft.” Kunselman maintains that the inclusion of the final six words was error. While the language at issue diverged from the criminal trespass statute, taken as a whole, the charge was not incorrect. Compare OCGA §§ 16-7-1 (a); 16-7-21 (b) (2). However, the better practice would be to employ the pattern charge on retrial.

Decided April 17, 1998.

Benjamin Gratz, Jr., for appellant.

C. Paul Bowden, District Attorney, Nancy G. Brimberry, Assistant District Attorney, for appellee.

3. In light of our disposition in this case, we need not reach the remaining enumerations, which challenge the sufficiency of the evidence.

Judgment reversed. Case remanded with direction.

McMurray, P. J., and Blackburn, J., concur.

       In Cantrell, the trial court required unanimous agreement on the greater offense after the jury rendered a guilty verdict on the lesser offense. Id. at 701. The jury then resumed deliberating and convicted on the greater offense. Id.

       In Jones, this passage was preceded with the observation that an “acquittal first” instruction “improperly interfere[d] with the jury’s deliberations” by encouraging convictions on the greater offense. Id.

        Cantrell also relied on State v. Ogden, 580 P2d 1049 (Or. App. 1978) which held “that it is error to instruct the jury that it must reach a verdict with respect to the offense charged before considering the lesser included offense.” Ogden, 580 P2d at 1051. Ogden recommended instructing jurors “first to consider the charge in the accusatory instrument and if they cannot agree upon a verdict in that charge they are to consider the lesser included offenses.” Id. at 1053.

       The pattern charge on lesser included offenses does- not require acquittal before consideration of the lesser offense. It states: “If you do not believe beyond a reasonable doubt that the defendant is guilty of (indicted crime), but do believe beyond a reasonable doubt that the defendant is guilty of-, then you would be authorized to find the defendant guilty of--...”


text:
    A98A0275.
    BOWMAN et al. v. STEPHENS.
    (501 SE2d 245)
   Judge Harold R. Banke.

Myra G. Stephens obtained a jury verdict for $37,836.40 in her breach of contract action against Sandra Bowman and Madeline R. Lowry d/b/a Bowman and Lowry Bookkeeping and Income Tax Services (“Bowman”). Bowman’s sole enumeration of error is that the trial court erred in failing to direct a defense verdict at the close of Stephens’ case.

In June 1989, Bowman and Stephens executed a contract for the purchase of the assets of Stephens’ bookkeeping business. Bowman agreed to make monthly payments of 20 percent of all fees collected from clients for a five-year period. Paragraph 8 of the contract provides that “if by December 10, 1991 Purchaser [Bowman] has not paid Seller [Stephens] under the foregoing terms an aggregate amount of Fifty Thousand Dollars ($50,000) Purchaser will either: (a) Pay to the Seller an amount which will increase the aggregate payments to said sum of Fifty Thousand Dollars ($50,000) or, (b) Reconvey said client files, books, records, and such of the office furniture, fixtures and equipment as originally acquired from Seller as is still on hand to Seller, consider this agreement to be terminated, and consider all previous payments made as liquidated damages.”

Stephens contended that paragraph 8 required that on or before December 10, 1991, Bowman had to make an election to either pay the full purchase price of $50,000 or reconvey the assets. The undisputed trial evidence indicated that by that date, Bowman took neither action. Although Bowman had paid only a total of $16,217.50, Bowman neither paid the shortfall nor reconveyed the listed assets. Central to Bowman’s defense was its contention that it reasonably and adequately complied with the contract terms by extending a written offer to reconvey the assets about 11 months subsequent to the December date. Bowman claimed that by making this tender, it was exercising its right to terminate the agreement and, thus, was insulated from any further liability. In moving for a directed verdict, Bowman argued: (1) that because the contract failed to specify a particular date for the return of the assets, a return within a reasonable time could be implied, and (2) that Stephens improperly asserted a demand for more in damages than the contract authorized. In denying Bowman’s motion, the trial court concluded that the jury needed to resolve the disputed issues relating to Stephens’ demands and Bowman’s alleged tender. Held:

We must reject Bowman’s contention that the court erred in denying the motion. A directed verdict is proper only if “there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict[.]” OCGA § 9-11-50 (a). “ ‘In determining whether any conflict in the evidence exists, the court must construe the evidence most favorably to the party opposing the motion for a directed verdict. The standard used to review the grant or denial of a directed verdict is the “any evidence” test.’ ” (Citations and punctuation omitted.) Grubb v. Woodglenn Properties, 220 Ga. App. 902, 903 (1) (470 SE2d 455) (1996).

In this case, the evidence did not demand a particular verdict. Compare Aldridge v. Dixie Fire &c. Co., 223 Ga. 130, 133 (1) (153 SE2d 723) (1967). Although Stephens admitted that her demands exceeded the specified terms of the contract, substantial issues remained for jury resolution, especially in light of the parties’ disputed interpretation of the express terms in paragraph 8. Mercer v. Woodard, 166 Ga. App. 119, 126 (10) (303 SE2d 475) (1983).

Judgment affirmed.

Birdsong, P. J., and Johnson, J., concur.

Decided March 31, 1998

Reconsideration denied April 20, 1998.

Crumbley & Chafin, Wade M. Crumbley, for appellants.

Lawrence D. Kupferman, for appellee.

       Because Myra Stephens died after obtaining the judgment, her executrix, Charlene Stephens, was substituted as a party and is the appellee.


author: Smith, Judge.

text:
    A98A0134.
    GUARANTEE MUTUAL INSURANCE COMPANY v. WADE INVESTMENTS et al.
    (499 SE2d 925)
   Smith, Judge.

In this workers’ compensation case, the employer changed workers’ compensation carriers after the claimant/employee developed carpal tunnel syndrome but before that condition became disabling. The issue presented in this appeal is which insurer is responsible for payment of the claim.

Mary Ann Duckett was employed as a valet manager for a dry cleaning business. In August 1993, she sustained a compensable neck injury at work, at which time Wausau Insurance Company provided workers’ compensation coverage for the employer. Duckett returned to work in October 1994, keying customer and inventory data for the employer’s dry cleaning business on a computer keyboard.

Duckett eventually began experiencing problems with her hands, and in October 1995, she was diagnosed with bilateral carpal tunnel syndrome. In January 1996, her treating physician recommended carpal tunnel release surgery, but Duckett declined that treatment. Her condition worsened, however, to the point that on March 27, 1996, she had to quit working because of the pain in her hands and neck. She then filed a claim for temporary total disability benefits based on the injury to her hands and arms.

From December 16, 1993, until December 16, 1995, the period of time during which Duckett first developed carpal tunnel syndrome, Guarantee Mutual Insurance Company was the employer’s workers’ compensation carrier. Since December 16, 1995, Gerber Life Insurance Company has been the carrier. (Prior to the hearing on her claim, Duckett settled any possible claim she had with respect to Wausau Insurance Company.)

Following hearing in the matter, the ALJ found that Duckett’s carpal tunnel syndrome resulted from the performance of her job duties, and that although Duckett first developed the condition during the period that Guarantee Mutual provided workers’ compensation coverage, she did not become unable to work because of it until ■ March 27, 1996, when Gerber Life was the carrier. For that reason, the ALJ concluded that Duckett sustained a new accident and injury as of March 27, 1996, and Gerber Life was responsible for the claim. See Zurich Ins. Co. v. Cheshire, 178 Ga. App. 539, 540-541 (1) (343 SE2d 753) (1986).

The appellate division upheld that determination. However, the superior court reversed and found instead that Guarantee Mutual was liable for the claim because it was the employer’s workers’ compensation carrier at the time Duckett first developed carpal tunnel syndrome. The superior court further observed that there was no finding that a new injury had occurred after Gerber became the carrier.

It is undisputed that although Duckett did not literally sustain a new injury on March 27, 1996, she became unable to work on that date. When a worker is injured on the job but continues to work until he or she is forced to quit working because of a gradual worsening of the condition attributable to continuing to work subsequent to the injury, a fictional “new accident” occurs as of the date the disability manifested itself. Central State Hosp. v. James, 147 Ga. App. 308, 309 (248 SE2d 678) (1978).

“ ‘New accident theory cases’ only apply in those instances where the claimant is injured and goes back to work without any agreement or award as to that injury having been approved or issued by the State Board of Workers’ Compensation. The date of the ‘new accident’ is the date that the injury manifested itself, that is, the date the claimant is forced to cease his employment.” (Punctuation omitted.) Cheshire, supra at 541 (1).

Contrary to the superior court’s holding, the ALJ specifically found that Duckett sustained a new accident and injury on March 27, 1996. That factual and legal conclusion was authorized by the evidence of record and this Court’s holdings in James and Cheshire. Accordingly, as Duckett’s compensable injury occurred on March 27, 1996, the State Board properly found Gerber Life responsible for payment of the workers’ compensation claim based on that injury.

In concluding otherwise, the superior court misplaced its reliance upon Lockheed Missiles &c. Co. v. Bobchak, 194 Ga. App. 156 (390 SE2d 82) (1990), and Northbrook Property &c. Ins. Co. v. Babyak, 186 Ga. App. 339 (367 SE2d 567) (1988). Bobchak involved the issue of whether the aggravation of an employee’s earlier knee injury, for which he previously received workers’ compensation benefits from a former employer, constituted a change in condition or a new injury, and this Court noted that the evidence authorized a finding either way. Id. at 158 (1).

Babyak involved an award of benefits based on a change in condition for an employee who continued to work for a period of time after sustaining a work-related injury. On appeal, this Court rejected both (1) the notion that a “change in condition” occurred, because the employee had not previously received benefits for a compensable injury, and (2) the notion that a fictional new injury occurred as of the date the employee ceased working, because the decision to quit working was not caused by a gradual worsening of his condition attributable to continuing to work after the actual injury. This Court upheld the award, but only because the evidence authorized the claim as one based on the original injury date. Id. at 341. In short, Bobchak was a change in condition case, Babyak was an initial injury case, and both are inapposite here.

Decided April 20, 1998.

Hawkins & Parnell, Charles R. Beans, Roger M. Goode, for appellant.

Sligh, Presmanes & Jackson, Gregory T. Presmanes, James G. Jackson, William A. Byars, for appellees.

Whether an employee’s inability to continue working is caused by a new accident or by a change in condition is a question of fact for the ALJ, and such a finding of fact may not be disturbed on appeal if any evidence supports it. Columbus Intermediate Care Home v. Johnston, 196 Ga. App. 516, 518 (2) (396 SE2d 268) (1990). The factual issue presented in this case actually concerned the date of Duckett’s compensable injury, not whether the disability resulted from a change in condition as opposed to a new injury. But the principle is the same, and the State Board found as fact that Duckett experienced a new accident as of March 27, 1996. The evidence supports and the law allows that finding, and the superior court erred in substituting its own finding and in reversing the State Board’s award.

Judgment reversed.

Birdsong, P. J., and Johnson, J., concur.


author: Ruffin, Judge.

text:
    A98A0474.
    In the Interest of A. H. P. et al., children.
    (500 SE2d 418)
   Ruffin, Judge.

Appellant, the mother of A. H. P, K. D. P, J. A. M. and C. M. M., appeals from the juvenile court’s order terminating her parental rights in her children. The mother argues on appeal that she was denied effective assistance of counsel and that the trial court erred in denying her a continuance until the time she is released from incarceration. For reasons which follow, we affirm.

On appeal from a termination of parental rights, this Court reviews the evidence in the light most favorable to the appellee. In the Interest of R. D. S. P., 230 Ga. App. 205 (495 SE2d 867) (1998). The record in this case reveals that the mother’s two sons, C. M. M. and J. A. M., were born January 14, 1991 and April 14, 1993, respectively. The mother admitted to smoking marijuana during the first four months of her pregnancy with J. A. M. In September 1993, the mother pleaded guilty to writing a bad check and was placed on probation. Then, on December 11, 1994, the mother gave birth to A. H. P., a girl. A. H. P. had cocaine in her system at the time of her birth. These three children were removed from the mother’s home on December 13, 1994 because (1) her house was “unclean and inappropriate to raise children due [to] health concerns[,]” (2) the mother had a prior criminal history and abused drugs, and (3) the mother used cocaine during her pregnancy with A. H. P. On December 15, 1994, the juvenile court found that probable cause existed to show that the children were deprived and therefore placed them in the custody of the Department of Family & Children Services (“DFCS”).

On January 25, 1995, the juvenile court issued a temporary placement order which required the mother to complete an in-patient drug treatment program, maintain a stable residence, maintain steady employment, not violate the law, remain drug free and complete a parenting skills class. In January 1996, the juvenile court held the mother in contempt for failing to meet any of the requirements set forth in its January 25, 1995 order. Subsequently, on February 1, 1996, the mother pleaded guilty to prostitution and the trial court ordered that she be placed in a substance abuse treatment program. In April 1996, the mother was kicked out of the treatment program for using cocaine.

From the time A. H. P., C. M. M., and J. A. M. were removed from her care in December 1994 until April 19, 1996, she visited nine times with C. M. M. and J. A. M., who resided in the same foster home. She visited A. H. P. only seven times in that period. She missed two visits with A. H. P. and four visits with her two sons. She did not visit with the children after April 19, 1996.

On May 7, 1996, the mother gave birth to K. D. P., the fourth child at issue. There was evidence that the mother used drugs approximately ten days before K. D. P.’s birth. Two days after the birth, the juvenile court removed K. D. P. from her mother’s care. Thereafter, the mother never visited with K. D. P.

In June 1996, the mother was convicted of theft by shoplifting and received 12 months probation. She was convicted on another count of shoplifting in September 1996 and received three years probation. On December 2, 1996, a Florida court convicted the mother of possession of cocaine. Finally, in January 1997, she pleaded guilty to violating the Georgia Controlled Substances Act and theft by receiving stolen property. The trial court sentenced her to five years with two to serve in prison.

In October 1996, DFCS petitioned the juvenile court to terminate the mother’s rights in her four children. Evidence from the March 19, 1997 termination hearing showed that the mother failed to abide by and complete case reunification plan goals, which required her to, inter alia, remain drug/alcohol free, maintain a steady income, maintain a hazard-free home and demonstrate proper parenting skills. The mother failed to complete a drug rehabilitation program prior to her incarceration and had yet to undergo drug rehabilitation or vocational training while incarcerated. Since the time the children were placed in DFCS custody, the mother has made no child support payments. The mother admitted at the hearing that since she graduated from high school, she has never maintained steady employment for longer than eight months. As well, she has never maintained her own residence for longer than two to three months. The mother and her children lived with her mother for a period of time prior to the children’s removal from her care. She admitted that her mother paid for the children’s clothing and food, as well as paying the house mortgage and utility bills. However, her mother died on January 10, 1997 and is no longer available to take care of the children or assist the mother with their care.

Regarding A. H. R and K. D. R, the mother testified that they “do not know who I am, and I think it would be extremely selfish on my part to take them away from the only mother they know, being [the foster mother]. When they look for Mama, it’s not me that they look to.” She added that “I will willingly give [A. H. P. and K. D. R] up. . . .”

Given all the evidence, including the mother’s criminal history, incarceration, drug addiction, failure to provide adequately for her children, and failure to comply with any of the reunification case plan goals, the juvenile court terminated the mother’s rights in her four children.

1. During the termination hearing, the mother’s appointed attorney requested a continuance until the mother was released from prison, which he argued was in the near future. The mother’s attorney said that it would be “manifestly unfair” to proceed while “she is not in a position to properly address the Court as to her abilities to continue to care for the children. . . .” The State argued that there was no need for a continuance where there was no certain parole or release date and where such a delay would not be in the best interest of the children. The juvenile court denied the continuance, and the mother raises this as error on appeal.

“All applications for continuances are addressed to the sound legal discretion of the court and, if not expressly provided for, shall be granted or refused as the ends of justice may require.’ [Cit.]” In re C. M., 179 Ga. App. 508, 510 (2) (347 SE2d 328) (1986).

In In re C. M., DFCS sought to terminate a father’s parental rights in his children. Prior to the termination hearing, the father entered an in-patient addiction program. The father sought a continuance for three to six months. His “motion for continuance was predicated on the assertion that his attending physicians at the hospital ‘would be material witnesses’ on his behalf in the event he were successful in overcoming his alcoholism through his participation in the program.” Id. We ruled that the “father’s potential for overcoming his alcoholism, which had existed throughout the four years the children had been in foster care, was insufficient to require the grant of a continuance in this case.” Id.

Similarly, in this case the mother requested the juvenile court to postpone the termination hearing in order for her to obtain favorable evidence — such as her drug rehabilitation, vocational training and freedom from incarceration — not in existence at the time of the hearing. See id. The mother’s potential for overcoming her drug addiction, which had existed during the entire time her children were in foster care, was insufficient to warrant a continuance. Id. The possibility that she might receive vocational training also did not require a continuance, given that she had never maintained steady employment, had never paid child support for the children while they were in DFCS custody, and had relied on her mother to take care of the children prior to their removal from her care. There was further no evidence that with the training she would be able to maintain a steady income and a stable home environment. In sum, there was simply no evidence on which the juvenile court could rely in determining that a continuance would make any difference in the outcome of the case.

Moreover, the mother’s inability to present herself as she would have liked at the termination hearing — as a free woman — was “due to her own inability to conform to the law,” and thus a continuance was not justified. In the Interest of M. G. F., 222 Ga. App. 816, 817-818 (476 SE2d 100) (1996). Accordingly, we find the juvenile court did not abuse its discretion in denying the mother’s motion for continuance. See In re C. M., supra.

2. Following the termination hearing, the mother moved for a new trial, asserting that her appointed counsel was ineffective because he failed to present the expert testimony of a penologist or toxicologist. At the hearing on the motion, the mother also argued that her counsel erred in failing to determine her release date from prison and to present a reunification plan during the termination hearing.

In response, the appointed counsel testified at the motion for new trial hearing that he had been involved in approximately 20 prior termination hearings and he had never called a penologist or a toxicologist. Furthermore, he noted that in his experience, termination of a parent’s rights is not necessarily linked to the parent’s incarceration; in various cases a parent’s rights were terminated although the parent was not in jail. He stated that the mother in this case was sentenced just prior to the date of the termination hearing here, and so he believed that her release date would not have been in the near future. Moreover, the evidence showed that no release date had been set as of the date of the hearing.

The trial court denied the motion for new trial and the mother asserted her ineffective assistance of counsel claim on appeal. The State argues that the mother was not entitled to effective assistance of counsel as the termination hearing was a civil action rather than a criminal trial. Although we disagree with the State’s argument, we affirm the juvenile court’s termination order.

While “termination of parental rights cases are more civil in nature than criminal,] [tit.] . . . parents facing termination of their rights have been afforded some of the protections to which criminal defendants are entitled. See, e.g., Nix v. Dept. of Human Resources, 236 Ga. 794, 796 (225 SE2d 306) (1976) (indigent parent has right to appointed counsel.).” In the Interest of S. M. L., 228 Ga. App. 81, 83 (4) (a) (491 SE2d 186) (1997). With regard to the right to counsel, OCGA § 15-11-85 (b) provides that “[i]f the parent or parents of the child desire to be represented by counsel but are indigent, the court shall appoint an attorney for such parent or parents. . . .” Moreover, the Supreme Court, citing former Ga. Code Ann. §§ 24A-1701 (d) and 24A-2001 (a) (currently OCGA §§ 15-11-26 (e) and 15-11-30 (b)), has held that “[i]t is thus quite evident that the entire legislative scheme written into the pertinent provisions of the Juvenile Code was intended to provide to an indigent parent effective representation at all stages of any proceeding involving the termination of that parent’s right to his or her child.” Nix, supra at 796. Accordingly, the mother was entitled to effective representation. See, e.g., Cain v. Dept. of Human Resources, 166 Ga. App. 801, 803 (4) (305 SE2d 492) (1983).

“In order to prevail on a claim of ineffective assistance of counsel [the mother] must show that [her] counsel’s performance was deficient and that the deficient performance was prejudicial to [her] defense. Smith v. Francis, 253 Ga. 782, 783 (325 SE2d 362) (1985) (citing Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984)). To meet the first prong of this test, [the mother] must overcome the strong presumption that counsel’s performance fell within a wide range of professional conduct and that counsel’s decisions were not made in the exercise of reasonable professional judgment. The reasonableness of counsel’s conduct is examined from counsel’s perspective at the time of trial and under the circumstances of the case. The second prong requires [the mother] to show there is a reasonable probability that, absent counsel’s unprofessional errors, the result of the trial would have been different.” (Citations and punctuation omitted.) Brown v. State, 268 Ga. 354, 357 (4) (490 SE2d 75) (1997).

Decided April 20, 1998.

Robert S. Devins, for appellant.

Thurbert E. Baker, Attorney General, Jeffrey L. Milsteen, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Stephanie M. Baldauff Assistant Attorneys General, Sanders B. Deen, for appellees.

“ ‘[A]s to deficient performance, errors in judgment and tactical errors do not constitute denial of effective assistance of counsel. (Cit.)’ [Cits.]” Smith v. State, 207 Ga. App. 290, 291 (2) (428 SE2d 95) (1993). We find that appointed counsel’s decision not to call a penologist or toxicologist amounted to trial strategy and trial tactics, not ineffective assistance of counsel. See Austin v. Carter, 248 Ga. 775, 779 (2) (c) (285 SE2d 542) (1982).

Additionally, the mother has failed to show that, but for counsel’s alleged error in failing to determine her release date, her rights in her children would not have been terminated. Brown, supra. Accordingly, the mother has not shown that she was denied effective representation and the trial court did not abuse its discretion in denying her motion for new trial. Brown, supra; see Lisle v. Willis, 265 Ga. 861, 864 (3) (463 SE2d 108) (1995) (“The trial court’s decision on a motion for a new trial will be upheld on appeal unless it was an abuse of discretion.”).

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    A98A0577.
    BALDWIN v. THE STATE.
    (501 SE2d 548)
   McMurray, Presiding Judge.

Defendant Baldwin appeals his conviction of theft by receiving stolen property and possession of a firearm by a convicted felon. Held:

1. The State presented a juvenile witness who testified as to stealing a handgun belonging to his father and transporting the weapon to defendant’s residence where it was delivered to defendant in payment of a drug debt. Defendant, who had elected to have the criminal discovery provisions of OCGA § 17-16-4 et seq. apply to this case, objected and moved for a mistrial, noting inconsistencies between this testimony and the statements of the juvenile witness which had been provided via discovery. Defense counsel argued that it appeared that the State had statements of the juvenile witness which had not been provided to him and that the State should have provided him via discovery with the information that a drug debt was involved. Defendant’s objection was overruled and motion for a mistrial denied.

These issues were raised again via motion for a new trial, and during the hearing of that motion, an assistant district attorney explained that he had elicited the juvenile witness’ statement concerning the drug debt by pursuing his suspicions based on the circumstances of the case and confronting that witness about 30 minutes prior to jury selection for defendant’s trial. Defendant maintains that the resulting oral statement by the juvenile witness should have been provided to him pursuant to the statutory discovery provisions. Defendant’s supposition that OCGA § 17-16-7 is applicable to oral statements of a witness is reached by defendant’s reading of this statutory provision together with OCGA § 17-16-4 (a) (1) which provides that a defendant’s oral statements while in custody are subject to discovery. Nonetheless, the statutory construction of OCGA § 17-16-7 advanced by defendant is irreconcilable with the Supreme Court decision of Forehand v. State, 267 Ga. 254, 255 (3) (477 SE2d 560). “[OCGA § 17-16-7] provides, in relevant part, that ‘the prosecution . . . shall produce for the opposing party any statement of any witness that is in the possession, custody, or control of the (S)tate or prosecution . . . that relates to the subject matter concerning the testimony of the witness. . . .’ This statutory obligation is not triggered when a witness merely makes an oral statement. There can be no ‘possession, custody, or control’ of a witness’ statement which has neither been recorded nor committed to writing. OCGA § 17-16-1 (1). Accordingly, if, but only if, the eyewitness’ statement had been recorded or committed to writing other than in ‘notes or summaries made by counsel,’ it would be discoverable. OCGA § 17-16-1 (2) (C).” Id. at 255-256. See also Phagan v. State, 268 Ga. 272, 283 (11) (486 SE2d 876).

While the juvenile witness’ oral statement was not discoverable, we note that the State had provided defense counsel with this witness’ name and telephone number prior to trial, thereby enabling defense counsel to speak with this witness if he wished to do so. Additionally, we note that defense counsel fully utilized the opportunity presented by cross-examination to explore any inconsistencies in the statements of the juvenile witness and thus bring his credibility into issue. As we find no discovery error as maintained by defendant, we hold that the trial court did not err in admitting the testimony of the juvenile witness and in denying the motion for mistrial. Nor do we find merit in the related grounds for defendant’s motion for new trial.

Decided April 10, 1998

Reconsideration denied April 21, 1998

Macklyn A. Smith, for appellant.

Daniel J. Porter, District Attorney, Jefferson B. Blandford, Assistant District Attorney, for appellee.

2. Defendant’s remaining enumeration of error questions the sufficiency of the evidence to authorize his conviction. The evidence viewed in the light most favorable to upholding the verdict of the jury shows that defendant was identified by the juvenile witness as the person to whom he delivered his father’s handgun to pay a debt arising from a purchase of cocaine. The juvenile witness testified that he told defendant that the gun was his father’s and to hold on to the gun until he could get him some money because he needed to get the gun back. The handgun was recovered by police at defendant’s residence later that day. During the second part of a bifurcated trial, the State introduced evidence of defendant’s prior felony conviction for the sale of cocaine. The evidence was sufficient to authorize a rational trier of fact to find defendant guilty beyond a reasonable doubt of the offenses of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Dunbar v. State, 228 Ga. App. 104, 106 (1), 107 (491 SE2d 166); Adams v. State, 210 Ga. App. 151, 153 (2) (435 SE2d 514).

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.


text:
    A98A0746.
    SCOTT v. THE STATE.
    (501 SE2d 255)
   McMurray, Presiding Judge.

Following a jury trial, defendant Timothy Amos Scott was convicted of misdemeanor possession of marijuana, driving with an expired driver’s license, and violating a local loud music ordinance. In this direct appeal, defendant contends the trial court erred in denying his motion to suppress, his motion to recuse the trial judge, and his challenge to the jury array. Held:

1. Defendant was stopped while driving a vehicle registered to someone else. He contends marijuana discovered during an inventory search of the vehicle should have been suppressed because the search was a ruse and because the Bainbridge police had no official policy pertaining to inventory searches of impounded cars.

“When we review a trial court’s decision on a motion to suppress, the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them.” (Citations and punctuation omitted.) State v. Diamond, 223 Ga. App. 164, 166 (477 SE2d 320). Only the arresting officer testified at the suppression hearing. Viewed in the light most favorable to the trial court’s ruling, the record reveals these pertinent facts:

During the evening of May 30, 1997, Bainbridge Police Officer Patrick Henry Thomas heard loud music coming from an approaching car. Because the music was audible from a distance in excess of 50 feet in violation of a local ordinance, Officer Thomas followed and initiated a traffic stop by turning on his blue lights. The driver pulled over and stopped the car in a Hardee’s parking lot. Officer Thomas asked to see the driver’s license and identification. Defendant handed over proof of insurance, but could not produce a driver’s license. Defendant identified himself as Timothy Amos Scott and explained that he had a license issued by the State of Kentucky but that he had left this license at his house. Officer Thomas called his dispatcher to verify Scott’s status as a licensed driver. After two inquiries covering Kentucky, Georgia, Florida, and Alabama, the dispatcher informed Officer Thomas that defendant’s license was not on file.

While the dispatcher was performing the license check, Officer Thomas noticed that defendant “was acting very nervous, agitated, jittery.” Suspecting the possible presence of a weapon or contraband, Officer Thomas requested permission “to search the vehicle.” At that time, defendant told Officer Thomas “the vehicle did not belong to him, that it belonged to a Mr. Jimmy Ard. . . .” Defendant initially consented orally to a search, but then withdrew that consent when Officer Thomas explained that defendant could be charged with anything illegal found within the car even though he was not the owner.

Because the dispatcher was unable to find proof that defendant was a licensed driver, Officer Thomas arrested him and called a wrecker to tow the car to an impound lot. Although the Bainbridge Police Department has no official policy pertaining to inventory searches following impoundment of a vehicle, Officer Thomas routinely performs an inventory search for valuables when he impounds a vehicle. Similarly, no written police department policy or standards regarding the decision to impound a vehicle were established, but Officer Thomas confirmed it is the usual procedure to have the vehicle towed if a lone driver has either no license or is driving on a suspended license. Defendant never requested a private towing service or asked to call the owner to remove the car.

During the inventory search, Officer Thomas found in the console a “corncob pipe with some burnt substance in it, some burnt leafy substance in it, some lighters, some rolling papers, [and] some green leafy substance scattered up all inside the console itself. . . .” On the “right-hand side of the vehicle, in the backseat there was a zipper console, and inside that zipper console, was a clear plastic bag of green leafy substance, and with that bag was additional rolling papers to roll a cigarette with.”

“While [Officer Thomas] was en route with [defendant] to the Bainbridge Public Safety Department, the owner of the vehicle showed up at the scene at Hardee’s parking lot and identified himself as being Mr. Jimmy Ard and identified that this vehicle was his.” Consequently, the car was not towed. Because defendant insisted he had a Kentucky license, Officer Thomas asked a different dispatcher to run a third license check. This dispatcher reported that defendant once held a Kentucky license, but it had expired.

“In the interests of public safety and as part of what the [United States Supreme] Court has called ‘community caretaking functions,’ automobiles are frequently taken into police custody. The state may inventory the contents of a car that has been lawfully impounded. Justification of an inventory search is thus premised upon the validity of the impoundment. The police may not use an impoundment or inventory as a medium to search for contraband. The individual’s right of privacy is superior to the power of police to impound a vehicle unnecessarily. Impoundment of a vehicle is valid only if there is some necessity for the police to take charge of the property. In each instance, the ultimate test for the validity of the police’s conduct is whether, under the circumstances then confronting the police, their conduct was reasonable within the meaning of the Fourth Amendment. The existence of a department policy is relevant but not determinative. The question thus presented is whether the impoundment of [the] car was reasonably necessary.” (Citations and punctuation omitted.) State v. Lowe, 224 Ga. App. 228, 229 (480 SE2d 611) (1997).

In this case, defendant’s arrest was based upon probable cause that he was an unlicensed driver. Defendant was the lone occupant; there is no evidence that anyone else was present and authorized to take possession. There was no evidence that defendant requested any alternative disposition to impoundment or identified to Officer Thomas any method of reaching the owner. Although the vehicle did not pose a hazard to other drivers since it was parked off the roadway and on private property, the vehicle and its contents were exposed to a risk of theft or damage. These circumstances support the trial court’s finding that impoundment was reasonably necessary to safeguard the car and its contents. Gooden v. State, 196 Ga. App. 295, 297 (395 SE2d 634) (whole court); Pierce v. State, 194 Ga. App. 481 (1), 482 (391 SE2d 3).

2. Defendant next contends the trial court erred in denying his motion to recuse.

On August 20, 1997, the trial judge entered an order establishing the Internal Operating Procedures (IOP) of the State Court of Decatur County. On September 11,1997, defendant filed an objection to the IOP, contending it violated his constitutional rights. A hearing was not held on this motion. Rather, on September 19, 1997, defendant and two other defendants in unrelated criminal cases filed in Superior Court a pleading styled “Petition for Writ of Prohibition Nisi” against the trial judge. On the same day, defendant filed his motion to recuse, asserting the trial judge may be biased against him because he filed the petition. On September 22, 1997, the trial court orally denied the motion, finding it untimely On October 9,1997, the superior court disposed of the petition for a writ of prohibition, finding that the order establishing the IOP had been rescinded, which rendered the petition moot. On October 14, 1997, defendant re-filed an identical motion to recuse, again stating as the basis for recusal his having filed the petition for a writ of prohibition. This motion was denied as untimely and legally insufficient.

Pretermitting whether either motion was timely, in substance both must fail. “After being presented with a motion for recusal under [Uniform Superior Court Rule (“USCR”)] 25.1, the trial judge has the duty to determine whether, assuming the truth of the facts alleged, a reasonable person might conclude that the judge harbors bias, stemming from an extrajudicial source, which is of a nature and intensity as would interfere with the exercise of impartial judgment. Wellons v. State, 266 Ga. 77, 88 (18) (463 SE2d 868) (1995). If the affidavit is found to be sufficient, then the matter is referred to another judge for a hearing. See USCR 25.3; State v. Fleming, 245 Ga. 700 (267 SE2d 207) (1980).” Berry v. State, 267 Ga. 605, 607 (3) (481 SE2d 203). Here, the only factual basis for bias alleged in the affidavit as submitted by defendant’s counsel is that defendant “filed a Petition For Writ of Prohibition against James M. Pace, Jr., Judge of State Court of Decatur County, Georgia which suit alleges that James M. Pace, Jr., exceeded his jurisdiction and authority in propounding the Internal Operating Procedures for the State Court of Decatur County, Georgia.” This fails to set forth with the requisite specificity any conduct of the trial court judge demonstrating bias or prejudice against defendant Scott. Assuming the allegations are true, the affidavit contains bare conclusions and opinions which are not legally sufficient to warrant further hearing on the motion. Consequently, the trial court did not err in denying the motion summarily. Berry v. State, 267 Ga. 605, 607 (3), 608, supra. The mere filing of a petition for writ of prohibition, without a showing of personal bias or prejudice, does not warrant recusal. Henry v. James, 264 Ga. 527, 533 (4) (449 SE2d 79). See also Mapp v. State, 204 Ga. App. 647, 649 (4) (420 SE2d 615).

Decided April 1, 1998

Reconsideration denied April 21, 1998

Gilbert J. Murrah, for appellant.

Kirbo & Kendrick, Ben Kirbo, for appellee.

3. The third enumeration contends the trial judge erred in denying defendant’s challenge to the array. He argues the jurors called were ineligible pursuant to OCGA § 15-12-4 because they had been called to serve at the previous term of court. This contention, however, is not supported by the record.

Defendant’s case was set for September 23, 1997. To accommodate defendant’s attorney, who had a conflict on that date, the trial judge adjourned the September 23, 1997 jury session until October 28,1997. “The judge may, during the term of court, adjourn the court to such time as he may think fit.” OCGA § 15-6-22 (a). Further, the judge may “hold the jurors over to the adjourned session. Since it is presumed that the trial court proceeded legally, it is incumbent on the defendant to show that the trial court was not meeting pursuant to adjournment. They have not done so here. Accordingly, we find this enumeration of error to be without merit.” (Citation, punctuation, and emphasis omitted.) Gunter v. State, 243 Ga. 651, 654 (1) (256 SE2d 341). See also Harris v. State, 191 Ga. 243, 254 (7) (12 SE2d 64).

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.


author: Pope, Presiding Judge.

text:
    A98A0524.
    CANADA v. SHROPSHIRE.
    (501 SE2d 860)
   Pope, Presiding Judge.

Raymond Canada sued L. I. Shropshire, Jr., who Canada claimed negligently injured him in a car accident. Although Shropshire stipulated that he caused the accident, the jury apparently found Canada’s emergency room visit and chiropractic bills were not necessitated by the accident and returned a verdict in Shropshire’s favor. On appeal, Canada claims the trial court prejudiced his case when it allowed defense counsel to introduce evidence showing that, following prior automobile accidents, both Canada and his wife had received treatment from this same chiropractor and had retained these same attorneys to assert personal injury claims on their behalf. We find no error and affirm the judgment.

Canada presented three witnesses to testify about the accident and the extent of his injuries: himself, his wife, and the treating chiropractor, Dr. Rhino. The objected-to evidence showed that in 1987, Canada and his wife were riding in a car together when they were involved in an accident and sustained injuries. They both sought treatment from Dr. Rhino and both retained a lawyer in the present firm of Rand, Ezor & Olens to represent them. Again in 1994, the Canadas were involved in an accident, received chiropractic care from Dr. Rhino, and filed a personal injury claim through the same attorneys. After the present accident on December 26, 1995, Canada sought treatment from Dr. Rhino and was represented in this case by the Rand, Ezor firm. Dr. Rhino acknowledged that he and a principal in that law firm had a “personal relationship,” that he had referred patients to the firm, and that the firm had referred clients to him.

We will address each of Canada’s enumerations simultaneously. First, he argues that the questions regarding his retention of counsel “trampled” his right to seek legal representation. Second, he claims that evidence of his wife’s prior injuries, treatment, and attorney consultations was irrelevant. We disagree. OCGA § 24-9-64 entitles every party to a thorough and sifting cross-examination of the witnesses against him. The scope of that examination is left to the discretion of the trial judge, and this Court will not disturb the trial judge’s determination on such matters absent manifest abuse. Waszczak v. City of Warner Robins, 221 Ga. App. 528, 531 (3) (471 SE2d 572) (1996). Although some of this evidence was elicited on cross-examination, it appears Canada testified to the same facts on direct in order to “remove the sting” of this evidence after the trial court denied his motion in limine seeking to prevent Shropshire from broaching these subjects. In opposing the motion in limine, Shropshire argued that cross-examination on these issues was appropriate because the facts showed a very close relationship between Canada, Dr. Rhino, and the law firm and were relevant evidence of the chiropractor’s bias and credibility.

“The state of a witness’s feelings toward the parties and his relationship to them may always be proved for the consideration of the jury.” OCGA § 24-9-68. See Pavamani v. Cole, 215 Ga. App. 594 (1) (451 SE2d 795) (1994), holding that an expert’s relationship to a medical malpractice insurer may be admissible to show his possible bias against malpractice cases. The Missouri case on which Canada relies, Carlyle v. Lai, 783 SE2d 925, 929-930 (Mo. App. 1989), is unpersuasive. In that case, the court found defense counsel’s effort to show that plaintiff hired an attorney to bring suit only 15 days after her son’s death was an improper attempt to paint the plaintiffs as greedy. Here, at a minimum, the evidence presented allowed an inference that Dr. Rhino’s objectivity was clouded by his close relationship to the plaintiff, a long-time patient, and plaintiff’s counsel, a close friend. Therefore, the trial court did not err in admitting it.

Decided April 22, 1998.

Rand, Ezor & Olens, Andrew H. Agatston, for appellant.

Crim & Bassler, Mitchell S. Evans, for appellee.

Judgment affirmed.

Beasley and Ruffin, JJ, concur.

       Canada also claims that the wife’s testimony represented inadmissible “prior similar acts” evidence, but he failed to argue this ground below and may not raise it for the first time on appeal. Lewis v. State, 215 Ga. App. 486, 490 (6) (451 SE2d 116) (1994).


text:
    A98A0360.
    GAZELAH et al. v. ROME GENERAL PRACTICE, P. C.
    (502 SE2d 251)
   Judge Harold R. Banke.

Rome General Practice, P. C. (“Practice”), sued Shawn Gazelah, M.D., individually, and d/b/a MED FIRST, Darlene Bright and Glynda Nichols. The Practice, an established weight loss clinic, sued Bright and Nichols, two of its former management staff, for allegedly scheming to divert patients and assets from the Practice to Gazelah, who was starting up a rival weight loss business. The Practice sought injunctive relief and damages to prevent further transfer and diversion of its present and prospective patients.

During a hearing, a former receptionist admitted that she had participated in a scheme to provide the Practice’s waiting list patients’ names directly to Gazelah. She testified that she had diverted 40 or 50 prospective patients. Dr. Gazelah admitted that he knew that his staff was obtaining names from the Practice’s waiting list. The trial court entered an interlocutory injunction restraining the appellants from using the Practice’s customer lists and its scheduling calendars. The court also entered a protective order regarding information provided as a result of the litigation.

As discovery proceeded, both sides filed motions to compel. Following a hearing, the court entered an order requiring the appellants to “provide the information sought in numbered interrogatories 2, 3, 5 and 20,” and amend answers to interrogatory 9, within 30 days. Similarly, the court instructed the Practice to supplement its responses. Although the Practice complied, the appellants failed to do so. Instead, four days past the court’s deadline, they filed an appeal of the court’s order which this Court dismissed as premature. After they persisted in their noncompliance, even after the dismissal of their appeal, the trial court granted the Practice’s motion for contempt. The court determined that the appellants were in wilful contempt and without substantial justification in failing to supplement their responses. It ordered the incarceration of Bright, Nichols, and Gazelah, until they purged themselves of the contempt by filing the requisite responses. Enumerating nine errors, they appeal. Held:

1. The appellants contend that the trial court improperly found them in contempt by failing to address their objections to the disclosure of information they claim is privileged, proprietary and irrelevant. At issue are interrogatory nos. 2, 5, and 9. Interrogatory no. 2 requests: “[p]lease state the name, address and telephone number as well as the amount of money paid to you by each patient from the date of the opening of the facility [June 3, 1996] to the present for any weight control or weight loss or any diet program.” Interrogatory no. 5 seeks the appellants’ prior addresses and interrogatory no. 9 requests information regarding past criminal convictions.

Pretermitting whether any of this information would ultimately be admissible at trial, we find that it is all subject to discovery under the circumstances shown here. See OCGA § 9-11-26. The gravamen of the underlying action is whether the appellants were diverting present and potential patients. Contrary to the appellants’ assertion, the information sought was not privileged. Gilmore v. State, 175 Ga. App. 376, 377 (333 SE2d 210) (1985). The disclosure of the names and addresses of persons receiving treatment from a clinic is not subject to privilege and is discoverable. National Stop Smoking Clinic-Atlanta v. Dean, 190 Ga. App. 289, 290 (378 SE2d 901) (1989); OCGA § 9-11-26 (b) (1).

The appellants argue that because “customer lists” are trade secrets within the meaning of OCGA § 10-1-761 (4), they cannot be required to reveal this information. See Avnet, Inc. v. Wyle Labs., 263 Ga. 615, 616-617 (1) (437 SE2d 302) (1993). But to determine their compliance with the court’s order restraining them from using the Practice’s customer list, and to determine their violation, if any, of the Georgia Trade Secrets Act, as well as damages resulting therefrom, this information is essential to the litigation. We cannot endorse the appellants’ disingenuous attempt to conceal information properly subject to discovery by using the law they are accused of violating to insulate themselves from disclosing this information. Compare Leo Publications v. Reid, 265 Ga. 561, 562 (1) (458 SE2d 651) (1995).

2. The appellants contend that the trial court erred in citing them for contempt for a refusal to answer interrogatory no. 9 because they amended their responses to include a denial of any crime involving moral turpitude. Once a motion for sanctions is filed for failure to respond to interrogatories, sanctions may be entered under OCGA § 9-11-37 (d) (1), even where responses are subsequently filed. Kemira, Inc. v. Amory, 210 Ga. App. 48, 50 (1) (435 SE2d 236) (1993). Inasmuch as their supplemented answer does not appear to fully satisfy the question posed, it cannot be said that the evidence did not support the court’s finding. In re Booker, 195 Ga. App. 561, 564 (4) (394 SE2d 791) (1990).

Decided April 7, 1998

Reconsideration denied April 23, 1998

Hatcher, Johnson & Meaney, Ross L. Hatcher III, James A. Meaney III, for appellants.

Joseph E. Willard, Jr., for appellee.

3. Despite Bright and Nichols’ claim to the contrary, the court ordered only Gazelah to supplement his response to interrogatory no. 5. This he failed to do.

4. In three enumerations of error, the appellants contend on general grounds that the order is flawed. Notwithstanding their assertions, this order is not contrary to the evidence or to the law or to the principles of justice.

A trial court’s decision on a discovery matter will not be disturbed unless a clear abuse of discretion is shown. Nixon v. Sandy Springs Fitness Center, 167 Ga. App. 272 (1) (306 SE2d 362) (1983). The record shows that the appellants consistently failed to respond fully to several discovery requests, in particular, interrogatory no. 2 which sought to discover which patients and potential patients had been diverted from the Practice. In considering the entire protracted history of discovery and their continued defiance of an explicit order, the trial court was plainly authorized to find the appellants in contempt. Vining v. Kimoto, USA, 209 Ga. App. 296, 298 (3) (433 SE2d 342) (1993). See Kemira, 210 Ga. App. at 52 (1) (the finding of wilfulness and intentional failure to respond to discovery will be upheld where there is any evidence to support it). OCGA § 9-11-37 (b).

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

Judgment affirmed.

Johnson and Smith, JJ, concur.


author: Blackburn, Judge.

text:
    A98A0508.
    In the Interest of J. B. A. et al., children.
    (501 SE2d 862)
   Blackburn, Judge.

Appellant, the biological mother of J. B. A. and V. C. C., appeals the juvenile court’s termination of her parental rights, contending the evidence was insufficient to support the termination. We disagree and affirm.

On appeal, this Court must determine “whether, after reviewing the evidence in a light most favorable to the lower court’s judgments, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost. . . . This Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the trial court’s factfinding and affirm unless the appellate standard is not met.” (Punctuation omitted.) In the Interest of R. N., 224 Ga. App. 202 (480 SE2d 243) (1997).

The juvenile court employs a two-prong test in resolving parental rights cases. The court must first decide whether there is “present clear and convincing evidence of parental misconduct or inability.” OCGA § 15-11-81 (a). Parental misconduct or inability may be proven by evidence showing: (1) that the child is deprived; (2) that lack of proper parental care or control is the cause of deprivation; (3) that the cause of deprivation is likely to continue or will not likely be remedied; and (4) that continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. OCGA § 15-11-81 (b) (4) (A). If this first prong of the test is satisfied, the juvenile court must then determine whether termination of parental rights would be in the best interest of the child “after considering the physical, mental, emotional, and moral condition and needs of the child who is the subject of the proceeding, including the need for a secure and stable home.” OCGA § 15-11-81 (a); In the Interest of A. T., 187 Ga. App. 299, 301 (370 SE2d 48) (1988).

In this case, the evidence was sufficient under the standard set forth above to show parental inability and misconduct. Appellant admitted during the termination hearing that she will “always be a drug addict and alcoholic until the day [she] die[s].” It was this addiction which led to appellant’s first encounter with the Department of Family & Children Services (DFACS).

On July 2, 1994, appellant was arrested and charged with driving under the influence, habitual impaired driving, two counts of violating Georgia’s controlled substances act, and child endangerment. At 2:00 a.m., a sheriff’s deputy observed the appellant nearly hit a motorcyclist when she tried to make a U-turn on Interstate 75. When the deputy turned on his siren and emergency lights, the appellant stopped her car momentarily in a lane of traffic instead of pulling to the side of the freeway, narrowly escaping a collision with an eighteen-wheel truck. She then continued erratically down the freeway, causing other cars to swerve violently to avoid her. The appellant finally stopped her car in the center lane of the interstate, where she got out of her car. After some coaxing by the deputy, appellant managed to get her car to the roadside. However, she continued to walk into traffic, hallucinating on a mixture of drugs and alcohol. Both children experienced these events and watched their mother’s arrest from the car. At the time of this arrest, appellant was on probation for numerous convictions, including habitual violator, fleeing and eluding, DUI, no driver’s license or insurance, criminal trespass, and possession of controlled substances.

DFACS filed deprivation complaints based on this incident. The juvenile court found both children deprived on August 10, 1994. Those deprivation orders were not appealed. While appellant was jailed following her conviction for the July 2, 1994 offenses, DFACS developed a reunification plan. When appellant was released from prison in December 1994, she began, after some initial difficulty, to comply with the plan. Appellant had supervised visitation with V. C. C. and cared for J. B. A. four days a week. However, she failed to pay any child support. Within a month of her written request for unsupervised visitation with V. C. C., appellant was arrested for driving without a license, a probation violation. She was convicted and sentenced to 30 days in jail. Following her release, she began complying with some of the case plan goals. When the deprivation orders expired in January 1996, appellant immediately regained custody of both children, but did not pick up J. B. A. from his grandmother’s house until July 1996. As soon as appellant regained custody, she ceased attending parenting classes and counseling sessions.

In October 1996, appellant was arrested for violating her probation. She tested positive for marijuana. Based on this incident and other complaints involving the neglect of the children, DFACS filed deprivation petitions. During the hearing, the appellant admitted to a caseworker that she would need between three and four years before she would be ready to care for her children. The juvenile court again found both children deprived and awarded temporary custody to DFACS. On November 26, 1996, the juvenile court entered an order finding that reunification was not appropriate. The appellant did not appeal this order or the previous deprivation orders. A month later, appellant left the diversion center to which she had been sentenced for violating her probation and failed to return. Appellant pleaded guilty to felony escape charges and two years of her probation was revoked. On January 13,1997, DFACS filed a petition to terminate appellant’s parental rights.

At the termination hearing held on March 6,1997, DFACS called as a witness the psychologist who evaluated appellant on January 20, 1995 and again on October 16, 1996. The psychologist testified that appellant had a long history of abusing drugs, including marijuana, cocaine, LSD, amphetamines, and alcohol, and had hallucinated prior to her July 2, 1994 arrest. In fact, when appellant gave birth to V. C. C., the child tested positive for both marijuana and amphetamines. The psychologist concluded that appellant’s diagnosed polysubstance dependence was beginning to cause neurological and other health problems. Appellant was also diagnosed with a borderline personality disorder. She would typically put her needs before those of others, regardless of the consequences. Although the psychologist believed it possible for appellant to change her behavior for brief periods of time in order to regain custody, he concluded that appellant was not capable of being an adequate parent and, in fact, posed a danger to the children.

Upon the appellant’s motion, the trial court continued the hearing so that an independent psychological evaluation could be performed. The psychologist who performed this third evaluation on March 14, 1996, also recounted appellant’s history of drug and alcohol abuse, noting that she continued to use marijuana. He opined that any remission in her drug use was “forced” because of her incarceration. Further, during his joint session with V. C. C. and appellant, the psychologist noted “it was immediately evident that the child was frightened of her mother.” In fact, V. C. C. “turned pale” when her mother entered the room. After a brief visit, V. C. C. insisted that she had to “go bye-bye” and was eventually allowed to leave the room. V. C. C.’s foster parent also noticed that V. C. C. was traumatized by her brief stay in appellant’s custody. J. B. A. interacted better with his mother. However, the psychologist noted that appellant behaved like a playmate and not a parent. He was required to intervene in their play to discipline J. B. A., who had begun kicking the walls. Based on his clinical tests and observations, the psychologist concluded that appellant was an extremely superficial, opportunistic and amoral “thrill seeker” who would not benefit from her incarceration. She was very likely to violate the law and to abuse alcohol and drugs in the future. Further, he opined that continued therapy was not an option. In fact, the psychologist stated that “the only real cure for her problems is growing old.” Consequently, he recommended that her parental rights be terminated.

Appellant’s caseworkers gave testimony consistent with that of the psychologists. They said appellant was impulsive and behaved like a teenager. They noted that appellant changed boyfriends frequently and inexplicably. A DFACS case manager testified that appellant could not maintain stable housing for long and was difficult to keep track of. She also recounted how J. B. A. was traumatized by his mother’s arrest and how both children were stressed by the lack of stability at home.

Appellant does not contest that the children were deprived and that the deprivation was caused by a lack of proper parental control. Therefore, we will not address the court’s findings regarding these first two criteria of the first prong of the termination test. Appellant argues that the court erred in determining that appellant’s substance abuse — the primary cause of the children’s deprivation — was likely to continue and cause the children harm. Appellant argues that DFACS should be helping appellant “put her life in order,” rather than terminating her parental rights. Based on the evidence, we cannot agree.

The appellant testified that she would remain an addict until her death. Two licensed psychologists diagnosed appellant with a borderline personality disorder and polysubstance dependence. They concluded that appellant’s prognosis for change was poor and that any remission in her substance abuse was forced. Further, appellant’s past conduct was relevant in considering whether the conditions of deprivation were likely to continue. In the Interest of A. M. B., 219 Ga. App. 133, 134 (464 SE2d 253) (1995). Though appellant was previously jailed for her drug use and drunken driving, she continued that behavior undeterred on the night of July 2, 1994, exposing her children to a serious risk of injury or death. Even after this incident, appellant continued to violate the law, driving without a license and using marijuana. Also, when appellant was given an opportunity to participate in a diversion program, she abused the privilege and escaped. She has proven by her own behavior that her substance abuse cannot be voluntarily remedied and will thus continue. See In the Interest of A. H., 226 Ga. App. 279, 283 (1) (a) (486 SE2d 412) (1997).

Given the appellant’s inability to control her drug use and the associated behavioral problems, the trial court properly concluded that the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the children. Appellant already vividly demonstrated how her hallucinations and drunken driving can threaten the lives of her children. Her erratic and unstable behavior has also emotionally traumatized both children, especially V. C. C., who remains terrified of her mother. Also, appellant’s addiction frequently results in her incarceration. While appellant is jailed, the children are forced into temporary foster care. The trial court was authorized to consider the detrimental effects of repeated and prolonged foster care on the children. See In re G. M. N. & D. M. N., 183 Ga. App. 458, 461 (1) (359 SE2d 217) (1987). Clear and convincing evidence amply satisfied the first prong of the termination test. See In the Interest of A. H., supra at 285 (1) (b).

Decided April 23, 1998.

Kelley A. Dial, for appellant.

Thurhert E. Baker, Attorney General, Jeffrey L. Milsteen, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Stephanie M. Baldauff, Assistant Attorneys General, Velma C. Tilley, for appellees.

With respect to the second prong of the test, the trial court did not err in finding that termination was in the best interest of the children. “[T]he same factors that support the finding of parental misconduct or inability can also support a finding that termination is in the children’s best interest. . . . Our review of the record shows that clear and convincing evidence existed to support the juvenile court’s finding in this regard.” In the Interest of R. L. M., 221 Ga. App. 343, 345 (2) (471 SE2d 245) (1996).

Judgment affirmed.

McMurray, R Jand Eldridge, J., concur.

       The rights of the biological father of V. C. C. and the biological father of J. B. A. were not adjudicated in this case because the Department of Family & Children Services has not yet been able to identify the fathers from the list of possible putative fathers provided by the appellant.


author: Eldridge, Judge.

text:
    A98A0967.
    TUCKER v. THE STATE.
    (501 SE2d 868)
   Eldridge, Judge.

Appellant Anthony Shane Tucker went to trial on a six-count indictment charging Tucker with rape, statutory rape, aggravated sodomy, two counts of aggravated sexual battery, and aggravated child molestation. He faced life plus 40 years imprisonment. A Polk County jury convicted him solely of the lesser included offense of child molestation. He received five years imprisonment and ten years probation. Here, Tucker claims his trial attorney was ineffective.

At the hearing on the motion for new trial, Tucker alleged that he received ineffective assistance of counsel because his trial attorney: (a) failed to object when the case was called for trial two weeks earlier than expected and, therefore, failed to interview any State or potential defense witnesses prior to trial; (b) failed to object to the victim and her cousin sitting together on the witness stand during the victim’s testimony; and (c) failed to object to a violation of the rule of sequestration. The trial court denied the motion for new trial. Held:

“At the hearing on the motion for new trial, the burden was on appellant to establish that he received ineffective assistance of trial counsel. Van Alstine v. State, 263 Ga. 1, 4 (426 SE2d 360) (1993). To meet this burden, appellant was required to show not only that trial counsel’s performance was deficient [error], but also that, absent trial counsel’s deficient performance, there is a reasonable likelihood that the outcome of the trial would have been different [prejudice]. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Hayes v. State, 263 Ga. 15 (426 SE2d 557) (1993).” (Citation omitted.) Hightower v. State, 227 Ga. App. 74, 80 (487 SE2d 646) (1997).

(a) Defense counsel met with Tucker on and off for four months prior to trial. Counsel was in possession of detailed statements summarizing the testimony of all State’s witnesses, as well as the police report of the incident. He announced ready for trial two weeks prior to the actual trial date. Further, at trial defense counsel called five witnesses on Tucker’s behalf. Tucker has not identified any additional witnesses that should have been called. Defense counsel was successful in obtaining not guilty verdicts on all counts as indicted. Thus, Tucker has failed to show a valid reason for defense counsel to request a continuance in this case.

(b) The 14-year-old molestation victim was afraid to testify. As defense counsel stated at the hearing, the jury saw her “crying, very tearful, very upset at having to testify, and as a matter of fact, she had to leave the courtroom a couple of times.” The victim asked that her teenage cousin be allowed to sit with her on the witness stand during her testimony. Defense counsel did not object. We find this a reasonable, strategic decision and can only wonder at the jury’s reaction if defense counsel had done otherwise.

(c) The teenage cousin who sat with the victim was also an outcry witness for the State. Tucker’s attorney was in possession of her pre-trial statement to the police regarding what the victim had told her. Her trial testimony conformed to that pretrial statement, and no attempt was made to impeach her with it. Thus, Tucker has not shown a reason for defense counsel to have objected to any violation of the rule of sequestration.

Both prongs of the Strickland standard, error and prejudice, must be shown in order to warrant reversal on an ineffective assistance claim. Thompson v. State, 191 Ga. App. 906 (383 SE2d 339) (1989). Tucker has failed to demonstrate either prong. Accordingly, we find that the trial court properly denied Tucker’s motion for new trial premised on his claim of ineffective assistance of counsel.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.

Decided April 23, 1998.

Gammon & Anderson, W. Wright Gammon, Jr., for appellant.

James R. Osborne, District Attorney, for appellee.

       In this appeal, Tucker also raises these issues as individual, substantive enumerations. However, the failure to object waives theses issues as independent claims of error. See, e.g., Earnest v. State, 262 Ga. 494, 495 (422 SE2d 188) (1992).


text:
    A98A1003.
    HANSON v. THE STATE.
    (501 SE2d 865)
   Eldridge, Judge.

Glenda Hanson appeals a Gilmer County jury verdict finding her guilty of 11 felony counts of theft by taking through a breach of her fiduciary obligations as an assistant manager of Papa’s Pizza in Elijay. We affirm.

The evidence in this case necessarily involved the business practices of Papa’s Pizza and required detailed explanations thereof, including the workings of the company’s computer cash register and accounting methods. To that end, numerous receipts, cash register tapes, sales orders, etc., were introduced as exhibits. Also, Papa’s Pizza owner Jerry Angel explained to the jury the functions of the “Z” and “X” keys on the computer cash register; how to read the time and date-stamped register tapes in relation to the function the register was performing at any one time; the accounting methods used; and various other business practices employed at Papa’s Pizza.

In addition, Angel testified that because of reduced revenues on Mondays and Tuesdays, he became suspicious that someone was taking money on those days. On October 10, 1995, Angel performed a covert surveillance of his business. He testified as to his personal observations during this surveillance, including the number of sales made, times of sales, Hanson’s contacts with the cash register in relation to numbers and times of sales, and the contents of the register tapes in relation to times and sales made. In that regard, Angel testified that “[ejvery time a customer came in and paid, those sales were rang up on the register. At a point in time between around 1:30 in the afternoon that register was zeroed out, it was set to zero. The Z tape and all the transactions prior to that was tossed and the register started up again or else it would not have balanced starting with 1:47 those figures would not have balanced here.”

Further, store manager Eddie Ashe testified that after suspicions centered on Hanson, who managed the store half a day on Mondays and all day on Tuesdays, Ashe arranged a “sting” operation: at approximately 2:00 p.m., he had his sister make a $2.89 purchase; she then returned it for a refund and Ashe voided the sale. The computer cash register tape noted each transaction. Ashe left at 3:00 p.m. and Hanson was in charge of the business. Ashe returned after the store had closed at 9:00 p.m. The register tape showing the 2:00 p.m. voided sale was discovered in the trash can. Another register tape that Hanson had left with the closing paperwork showed a $2.89 voided sale at 9:17 p.m. Ashe testified that, “A reading was took. She realized there wasn’t the void that had been done earlier on the machine. The void/refund, she made the refund again, entered it again so it will show up on my Z tape.” Ashe testified that he referred to “she” because Glenda Hanson was the one who closed out the register that night and the paperwork was in her handwriting.

From the State’s evidence, including the above, the jury determined that on eleven separate dates as alleged in the indictment, Hanson cleared to zero the running daily totals on the computerized cash register, pocketed the money received from sales up to that point, and reported only those sales that were made from the time the register was cleared until the close of business. Held:

1. In her first and second enumerations of error, Hanson contends that the trial court erred by allowing testimony from owner Jerry Angel and manager Eddie Ashe as specifically cited above. Hanson contends that this was improper opinion testimony that went to the existence of facts, thereby usurping the function of the jury in violation of OCGA § 24-9-65. We disagree.

To the extent that the challenged testimony actually involves “opinion” of facts, as opposed to evidence of facts based upon personal observation of activity at the store in relation to personal review of the day’s receipts, we find no error. “[L]ay witnesses may relate their opinions as to the existence of a fact, so long as the opinion is based upon the witnesses’ own observations, and so long as the witness cannot adequately relate those observations to the jury without also relating a personal opinion formed through such observations.” Johnson v. Knebel, 267 Ga. 853, 856 (485 SE2d 451) (1997). Under the complicated facts of this case, there was no error.

2. In her third and fourth enumerations of error, Hanson contends that the failure to grant her motion for directed verdict was error because (a) the evidence against her was all circumstantial and (b) the evidence did not show that she was in a fiduciary relationship with the victim.

The failure to grant a directed verdict and failure to grant a new trial on the sufficiency of the evidence both involve the same analysis under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Lowe v. State, 223 Ga. App. 172 (477 SE2d 341) (1996). Having reviewed the evidence under that standard, we find no error in the denial of Hanson’s motion for directed verdict.

(a) “[E]ven if we characterize the evidentiary posture of the state’s case as purely circumstantial, a jury issue was formed and we will not substitute our judgment for that of the jury. The rule as to the sufficiency of circumstantial evidence to support a conviction is that the evidence exclude every reasonable hypothesis except the guilt of the accused, not that it removes every possibility of [her] innocence. On appeal we must view the evidence in a light favorable to the verdict, and we find that the evidence is sufficient to enable any rational trier of facts to find the existence of the offense[s] charged beyond a reasonable doubt.” (Citations and punctuation omitted.) Collins v. State, 176 Ga. App. 634, 637 (337 SE2d 415) (1985).

Decided April 23, 1998

William S. Hardman, for appellant.

Roger Queen, District Attorney, for appellee.

(b) Whether or not Hanson was in a fiduciary relationship with the victim, Papa’s Pizza, is a jury question. Cochran v. Murrah, 235 Ga. 304, 307-308 (219 SE2d 421) (1975). We find that evidence of Hanson’s position as an assistant manager, with responsibility for closing out the cash register and accounting for the money made, was sufficient for a jury to find beyond a reasonable doubt that a fiduciary relationship existed.

3. Theft by taking in breach of a fiduciary obligation is a felony offense. OCGA § 16-8-12 (a) (2). Accordingly, and pursuant to our holding in Division 2 (b) herein, the trial court did not err by imposing a felony sentence in this case.

Judgment affirmed.

McMurray, P. J., and Blackburn, J, concur.


author: Johnson, Judge.

text:
    A98A0641.
    CASTILLO v. THE STATE.
    (502 SE2d 261)
   Johnson, Judge.

Enrique C. Castillo was convicted of driving under the influence of alcohol, driving without proof of insurance, and possessing an open container of alcohol while driving. He appeals from the judgment of conviction entered on the DUI charge.

The state patrol set up a road check for valid driver’s licenses and proof of insurance. One of the troopers conducting the road check had been a police officer for about 20 years. He observed Castillo’s vehicle approach the road check, suddenly decelerate and abruptly turn right onto a side road. Having entered the side street but a short distance, Castillo then stopped, backed up to give himself room to complete his turn, and re-entered the main road heading in the opposite direction from the road check. The turn was made at the crest of a hill, and in the trooper’s opinion, the manner in which the turn and backing movement were made constituted “an unsafe turn or maneuver.” The trooper testified that he did not recall seeing any turn signal light, although he believed that he would have been able to see the turn signal had it been activated. Because of these circumstances surrounding Castillo’s abrupt reversal of course, the trooper concluded that Castillo was in a hurry to go back the other way, and this alerted him that “there might be some sort of criminal activity going on,” which needed to be investigated. The trooper testified he had “more than a hunch.” Based on his law enforcement experience and his observation of the movements of Castillo’s vehicle as he approached the road check, he suspected that “some criminal activity might be afoot.”

The trooper activated his lights, pursued the vehicle and stopped it approximately a half-mile from the road check. The trooper approached Castillo and asked for his driver’s license. At this time, the trooper smelled a strong odor of alcohol on Castillo’s breath. At the trooper’s request, Castillo performed various field sobriety tests, all of which he failed. He also tested positive for alcohol on the alcosensor test. The trooper observed that Castillo was somewhat disheveled, slightly unsteady on his feet, his speech was slurred and his eyes were bloodshot. An open container of beer was in plain view on the driver’s side floorboard of the car. Castillo “appeared intoxicated,” and the trooper concluded based on these observations that he “was a less safe driver” because of the alcohol he had consumed. The trooper arrested Castillo and read him the implied consent warnings. Castillo agreed to take a breath test at the local sheriff’s office. Castillo took two breath tests, which revealed a blood alcohol concentration of .157 and .153 grams. The trooper further testified that he could have charged Castillo for making an improper turn but elected to charge him with only the three most serious charges.

Castillo’s sole enumeration is that the trial court erred in denying his motion to exclude or suppress evidence obtained after he was seized because the state failed to meet its burden of proving that the arresting officer had a reasonable articulable suspicion for making the tráffic stop.

In determining the legality of the vehicle stop, this Court can consider all relevant evidence of record, including that adduced at the suppression hearing as well as that adduced at trial. Jones v. State, 187 Ga. App. 421, 422-423 (370 SE2d 784) (1988). “When an appellate court reviews a trial court’s order concerning a motion to suppress evidence, the appellate court should be guided by three principles with regard to the interpretation of the trial court’s judgment of the facts. First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.” (Citation and punctuation omitted.) Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994). The facts in this case were not in conflict and were stipulated by the parties for purposes of the suppression hearing. The facts were not controverted at trial.

An officer may make a brief investigative stop of a vehicle if it is justified by specific, articulable facts which are sufficient to give rise to a reasonable suspicion of criminal conduct. Burgeson v. State, 267 Ga. 102, 105 (3) (a) (475 SE2d 580) (1996). Moreover, it is immaterial that an arresting officer elected not to charge a defendant with an observed traffic offense, choosing instead to charge the defendant only with the more serious offenses disclosed after the traffic stop had been initiated. See State v. Wright, 221 Ga. App. 202, 205 (3) (470 SE2d 916) (1996). It was in the trooper’s discretion with which of the offenses, if any, he would charge Castillo. Id.

We find the similarity of facts and legal analysis in State v. Webb, 193 Ga. App. 2 (386 SE2d 891) (1989) to be persuasive. In that case, the defendant was stopped after making a possibly illegal u-turn in an apparent effort to avoid a roadblock. Compare Burns v. State, 216 Ga. App. 178 (454 SE2d 152) (1995) (defendant’s driving pattern after turning into a parking lot was suspicious). Contrary to Castillo’s contention, State v. Jones, 214 Ga. App. 593 (448 SE2d 496) (1994), where the officer did not observe defendant commit any crime before the traffic stop and had only a mere hunch that the defendant turned around to escape police detection, and Jorgensen v. State, 207 Ga. App. 545 (428 SE2d 440) (1993), where the stop was based on the officer’s intuition that defendant turned into an apartment complex to avoid a roadblock, are not substantially similar to the facts of this case. Here, a state trooper with over 20 years experience saw Castillo engage in an unusual and unsafe turning maneuver, under circumstances from which it reasonably could be concluded that Castillo was attempting to avoid the road check. The facts would justify a citation for the improper turn. Due to the totality of the circumstances, the officer had a reasonable suspicion that Castillo had engaged in some form of criminal conduct. He pursued and stopped Castillo’s car and immediately detected alcohol on Castillo’s breath. Further investigation provided ample probable cause to arrest Castillo for DUI.

The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a criminal to escape. Webb, supra at 4 (1). “‘Deliberately furtive actions and flight at the approach of strangers or law officers are strong indicia of mens rea’ ” Id. Further, an officer’s honest belief that a traffic violation has been committed in his presence, even if ultimately proven incorrect, may nevertheless demonstrate the existence of at least an articulable suspicion and reasonable grounds for the stop. Id. Accordingly, regardless of whether Castillo’s act of making a sudden and abrupt change in speed and a quick and unsafe turn and backing maneuver near the crest of a hill was a traffic violation, it was nevertheless a sufficiently suspicious and deliberately furtive response to the road check so as to give the trooper at least a reasonable suspicion of Castillo’s criminal activity and to warrant further investigation. Id.

Decided April 14, 1998

Reconsideration denied April 28, 1998

George A. Stein, Monte K. Davis, for appellant.

Leslie C. Abernathy, Solicitor, for appellee.

The trial judge correctly denied Castillo’s suppression motion.

Judgment affirmed.

Birdsong, P. J., and Smith, J., concur.