text:
    A99A1482.
    GRANT et al. v. GEORGIA PACIFIC CORPORATION et al.
    (521 SE2d 868)
   McMurray, Presiding Judge.

Plaintiff John Earl Grant, Jr., administrator of the estate of the decedent, John Earl Grant, Sr., and plaintiff Flora Mae Scott as surviving spouse, brought this wrongful death action against defendants Georgia Pacific Corporation, Georgia Pacific Resins, Inc. (collectively “Georgia Pacific”), and Fleet Transport Company (“Fleet”), alleging that John Earl Grant, Sr., a driver for defendant Fleet, and an invitee at a Georgia Pacific plant in Brunswick, Georgia, was negligently “exposed to turpentine sulfate and died as a result.” Specifically, defendants were negligent in failing to provide a mask or other breathing apparatus; failing to instruct plaintiffs’ decedent on the proper procedure for loading turpentine sulfate, such as wearing a mask; failing to instruct plaintiffs’ decedent on the dangers of working around turpentine sulfate; and failing to warn of the dangers of turpentine sulfate fumes, which allegedly caused the death of plaintiffs’ decedent. Defendant Fleet admitted that John Earl Grant, Sr. drove a tractor pulling Fleet’s trailer to a Georgia Pacific plant in Brunswick in order to transport a turpentine sulfate product, but denied that Grant’s death was the result of any negligence on its part. Georgia Pacific admitted that plaintiffs’ decedent was an invitee at its Brunswick mill and that he died on the premises, but also denied this resulted from any negligence on its part.

After discovery, all defendants jointly moved for summary judgment. Viewed in the light most favorable to plaintiffs as the non-movants, the record reveals the following, largely undisputed, facts:

Grant had made pickups from this plant before. On the day in question, he was found face down on top of his tanker truck. According to the pathologist, Milton J. Arras, M.D., the decedent had “severe coronary artery disease,” and suffered a fatal heart attack. Death was “instantaneous. ... He just dropped dead.” In the opinion of Dr. Arras, “excessively strong odor and/or vapors of the sulfated turpentine had a high probability of precipitating a myocardial infarction.” Bonifacio T. Floro, M.D., also thought the heart attack itself “was precipitated by inhalation of the turpentine fumes.” Specifically, the mixture of turpentine fumes with the open air reduced the amount of oxygen Grant received in the breathing process. Quitman Tanner, a safety liaison at the Georgia Pacific mill deposed in an affidavit that the processing of pine trees at the Georgia Pacific mill emits a noticeable odor of turpentine; that he observed Grant in and on the truck while the tank was being loaded; and that, on this particular occasion, the odor of turpentine was “no more pronounced than usual.” Likewise, Kenneth Dean Knapp, the former safety manager at this mill, detected no unusual turpentine odors that day. Knapp confirmed that visiting drivers, such as Grant, formerly were issued COM-FO II respirators, consisting of “a breathable air charcoal filter that screwed in on each side of the face plate,” but later Georgia Pacific switched to issuing a five-minute escape bottle “because it had a clear plastic bag and five minutes of compressed breathable air. . . . [T]ruck drivers can have beards; they can have false teeth that they didn’t put in; they could wear glasses; a lot of things that would break the seal of a normal respirator.” On site, each driver had to be within arm’s reach of the five-minute escape bottle. In practice, drivers were to leave the escape bottle on the nearest fender while working atop their truck. The air bottle is designed for emergencies, to escape hazardous gas such as chlorine. Instructions are written on the package. The escape bottle for which Grant signed was found in his cab, not on the fender. There was also a respirator in the cab, but this was not issued by Georgia Pacific.

Plaintiffs submitted the deposition of Henry A. Vartanian, a consultant in the field of industrial hygiene, occupational safety, with a degree in chemical engineering from Northeastern University. Industrial hygiene is the “recognition, evaluation and control of workplace health hazards.” For 21 years, Vartanian performed enforcement inspections for the Occupational Safety & Health Administration (“OSHA”). In his opinion, Grant did not have “proper respiratory protection or . . . the respiratory protection may not have been proper for the function he was performing.” Specifically, Vartanian opined that Grant should have been provided with a “supplied air system [, which] involves a half mask . . . with air supplied . . . from a compressor, a compressor reservoir, cylinders.” It is a generally accepted practice in respiratory protection, where a person is working in an unknown atmosphere, that the employee be “provided with the highest level of protection available and then downgrade [after] air sampling and testing determines that something else is appropriate.” But Vartanian could not state that an employer without such a program was in violation of OSHA standards. Vartanian also testified that employers have a duty to “inform any contractors coming on site so far as the hazards are concerned and the protective measures required,” based upon his understanding of the applicable Code of Federal Regulations.

The trial court granted defendants’ motion for summary judgment, and pursuant to an extension of time, this appeal followed. Plaintiffs argue that genuine issues of material fact remain as to each element of their ordinary negligence claims. Held:

1. As against the estate, the grant of summary judgment is correct because there is no evidence to support any award of damages for the deceased’s pain and suffering. A judgment that is correct for any reason must be affirmed. Shapiro v. Lipman, 259 Ga. 85, 86 (377 SE2d 673).

At the outset, we recognize that an individual’s claim for wrongful death [of a spouse or child] and an estate’s claim for the decedent’s pain and suffering are distinct causes of action. See generally OCGA §§ 51-4-2 (a); 51-4-5 (b); Complete Auto Transit v. Floyd, 214 Ga. 232 (2) (104 SE2d 208) (1958).

Smith v. Mem. Med. Center, 208 Ga. App. 26, 27 (1) (430 SE2d 57). Where, as in the case sub judice, the medical evidence is that death was instantaneous, and there is no evidence the decedent exhibited consciousness of pain, recovery for the decedent’s pain and suffering is not permitted. See 25A CJS 899, Death, § 99, in. 40. Accord Monk v. Dial, 212 Ga. App. 362 (1) (441 SE2d 857) (consciousness of imminent death, evinced by attempts to evade, supports award for pain and suffering in fatal auto crash).

2. The question becomes whether the trial court erred in granting summary judgment against the surviving spouse’s OCGA § 51-4-2 claim for the full value of the decedent’s life.

(a) There is considerable doubt that plaintiffs have adduced admissible evidence of any breach of duty of care. Experience has shown that loading liquid turpentine from bulk storage tanks in the open air produced a noticeable, even pronounced, but not stupefying, odor of turpentine. There is certainly no evidence that exposure to the typical level of turpentine vapor created by outdoor loading was itself toxic or even nauseating. In our view, Vartanian failed to specify that turpentine is in fact a hazardous substance the commercial loading of which is regulated by OSHA or any other federal agency. Indeed, he admitted that the failure to provide a supplied air system was not a violation of OSHA standards. Consequently, his expert opinion that Grant was not afforded appropriate respiratory protection (a self-contained air unit) is speculative, conclusory, and non-probative. Motorola v. Ward, 223 Ga. App. 678, 679 (1) (478 SE2d 465).

(b) Eyen assuming, but not deciding, that defendants breached a duty of ordinary care owed to the invitee contract carrier by exposing him to the customary levels of turpentine fumes or vapor produced by outdoor loading, we conclude that neither the failure to warn of that obvious exposure nor the failure to provide a respirator suitable for use while plaintiff Flora Mae Scott’s decedent was on top of the tanker amounts to the legal cause of Grant’s demise.

“If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover.” OCGA § 51-11-7. It is undisputed that Grant had a respirator in the cab of his truck at the time he began loading the turpentine. In our view, the legal consequence of Grant’s failure to use the safety equipment (respirator) he had the foresight to bring on his own amounts to a failure to exercise ordinary care to avoid the consequences to himself of the risk posed by the pervasive and pungent turpentine. Union Carbide Corp. v. Holton, 136 Ga. App. 726, 730-731 (2) (222 SE2d 105). Accord Powell v. Harsco Corp., 209 Ga. App. 348, 349-350 (2) (433 SE2d 608) (alleged inadequacy of installation instructions cannot be the proximate cause of fatal collapse of the catwalk, where the installer did not read the instructions actually provided). The trial court correctly granted summary judgment, based on the entire record before us.

Decided August 30, 1999.

Scott B. Parks, for appellants.

Whelchel, Brown, Readdick & Bumgartner, J. Thomas Whelchel, for appellees.

Judgment affirmed.

Andrews, P. J., and Ruffin, J., concur.


source: Caselaw Access Project

author: Johnson, Chief Judge.

license: Public Domain

text:
    A99A1790.
    CEASAR v. THE STATE.
    (521 SE2d 866)
   Johnson, Chief Judge.

Joe Ceasar appeals his conviction for aggravated child molestation. For reasons which follow, we affirm.

1. Viewed in a light most favorable to support the verdict, the evidence shows that Ceasar lived with the ten-year-old victim, her mother and her two sisters in 1995 and 1996. In April 1996, the victim was taken to the emergency room for complaints of back pain. A follow-up pediatric examination revealed that the victim had a large vaginal opening and no hymen, a finding consistent with sexual activity. Further examination and testing revealed that she had been infected with trichomoniasis, a sexually transmitted disease.

The victim’s mother reported the doctor’s findings to the police. The victim then told her mother, police officers and a Department of Family & Children Services caseworker that Ceasar had sexual intercourse with her. The victim also related what happened to her at trial. According to the victim, Ceasar would have intercourse with her while her mother was asleep or away from home. This would occur in the victim’s bed, despite the fact that her two sisters slept with her. Ceasar threatened to hurt her mother or sisters if the victim told anyone and bribed the victim with small amounts of cash. The victim never indicated that anyone other than Ceasar engaged in sexual intercourse with her.

The victim’s mother testified that Ceasar infected her with gonorrhea and treated himself with some “black market” medicine. Expert testimony revealed that an individual could be a carrier of multiple sexually transmitted diseases and could pass on one or more diseases to another person.

The state also presented evidence of a prior similar criminal transaction. In 1985, Ceasar fondled the breasts and vaginal area of another girlfriend’s eight-year-old daughter. The victim’s brother was sleeping in the same room and moved around in his bed to distract Ceasar from continuing until his mother returned home. When the victim’s mother returned home, she was told what occurred and left again to call police, but Ceasar once again began fondling the victim even though she was now in bed with her brother. Upon her return, the mother discovered Ceasar coming from the children’s bedroom. Ceasar was arrested, but the case was never prosecuted allegedly due to prosecutorial misconduct.

The evidence in the present case was sufficient for a rational trier of fact to find Ceasar guilty beyond a reasonable doubt of aggravated child molestation. See Swift v. State, 229 Ga. App. 772 (1) (495 SE2d 109) (1997); Ross v. State, 202 Ga. App. 12, 14 (1) (413 SE2d 207) (1991); Miles v. State, 201 Ga. App. 568, 570 (9) (411 SE2d 566) (1991). Contrary to Ceasar’s argument, the state did not need to present evidence that Ceasar was infected with trichomoniasis. The evidence showed that Ceasar had access and opportunity to have sex with the victim, that he was the only person who had intercourse with the victim, that he had given the mother a sexually transmitted disease, that he threatened and bribed the victim to remain quiet, and that he had previously fondled a child while she was in the same bed as her brother. The jury was authorized from the evidence to conclude that Ceasar had sex with the victim and gave the victim the sexually transmitted disease.

2. Ceasar contends the trial court erred by charging the jury with the entire Code section defining aggravated child molestation when he was charged in the indictment with committing aggravated child molestation only by causing the victim to contract a sexually transmitted disease. This contention lacks merit.

A person commits the act of aggravated child molestation when he commits an offense of child molestation which physically injures the child or involves an act of sodomy. OCGA § 16-6-4 (c). In the present case, Ceasar was indicted for committing aggravated child molestation by placing his penis into the pubic area of the victim, causing physical injury to the victim by causing her to contract a sexually transmitted disease.

The trial court began its charge to the jury by reading the indictment. It then charged the jury that a person commits the offense of aggravated child molestation when he does any immoral or indecent act to or with any child under the age of 14 years with the intent to arouse or satisfy the sexual desires of the person and the act physically injures the child. After this definition, the trial court once again specifically limited the jury’s consideration to the charges alleged in the indictment before it. We find no error.

Decided August 30, 1999.

Willie C. Weaver, for appellant.

Kenneth B. Hodges III, District Attorney, Gregory W. Edwards, Assistant District Attorney, for appellee.

Contrary to Ceasar’s allegation, the trial court did not charge the entire Code section on aggravated child molestation. Specifically, the charge given did not include. an instruction that aggravated child molestation may also be proven if the offense of child molestation included an act of sodomy. See OCGA § 16-6-4 (c). The trial court properly charged the portion of the aggravated child molestation statute which applied in this case: causing physical injury to the child. It had already read the indictment to the jury, so the jury was aware that the state alleged Ceasar caused physical injury to the victim by causing her to contract a sexually transmitted disease. The court also stated on at least two occasions that Ceasar must be found guilty of aggravated child molestation “as charged in the indictment.”

Jury instructions must be read and considered as a whole in determining whether a charge contained error. Roker v. State, 262 Ga. 220, 222 (4) (416 SE2d 281) (1992). Reading the jury instructions as a whole in the present case, no danger existed that the charge could mislead the jury into believing that it could convict Ceasar of aggravated child molestation based on acts not charged in the indictment. See Hilliard v. State, 226 Ga. App. 478, 483 (2) (487 SE2d 81) (1997); McClain v. State, 220 Ga. App. 474, 475 (2) (469 SE2d 756) (1996). The trial court read the indictment, instructed the jury that the state bore the burden of proving “every material allegation of the indictment,” and instructed the jury that it could convict only if it found beyond a reasonable doubt that Ceasar committed the offense of aggravated child molestation as charged in the indictment. Therefore, Ceasar’s reliance on JDukes v. State, 265 Ga. 422 (457 SE2d 556) (1995), and Ferguson v. State, 221 Ga. App. 212, 213-215 (1) (470 SE2d 909) (1996), is misplaced.

Judgment affirmed.

McMurray, P. J., and Miller, J., concur.


text:
    A99A2034, A99A2035.
    In the Interest of C. J. B. et al., children (two cases).
    (521 SE2d 891)
   Johnson, Chief Judge.

The juvenile court terminated the parental rights of the mother and father of four boys and two girls. The parents filed separate appeals in which they each claim there is insufficient evidence to support the order of termination. The claims are without merit.

On appeal this court must review the evidence in the light most favorable to the trial court’s judgment and determine whether a rational trier of fact could have found clear and convincing evidence that parental rights have been lost. This court does not weigh evidence or determine witness credibility, but defers to the trial court’s factfinding and affirms unless the appellate standard is not met. In the Interest of N. J. W., 233 Ga. App. 130 (503 SE2d 366) (1998).

Viewed in favor of the trial court’s judgment, the evidence shows that the mother and father have eight children, six of whom are the subject of this appeal. The mother also has three other children fathered by another man. All 11 children have been found to be deprived on various occasions. The four boys involved in this case have been in continuous foster care since 1994, and the two girls have been in the custody of the Department of Family & Children Services since their respective births in 1995 and 1998. None of the findings of deprivation has ever been appealed.

The mother has a long history of cocaine abuse. At the time of the termination hearing she was incarcerated because she had tested positive for cocaine while on probation for a felony drug conviction. She has repeatedly used cocaine while pregnant, and three of her children tested positive for cocaine at birth. In 1995 she pled guilty to a charge of child cruelty based on having ingested cocaine prior to one of the births.

In spite of the mother’s chronic drug abuse and having given birth to three children who tested positive for cocaine, the father has kept the children in the same household with the mother. The father and mother have had physical altercations, and in one instance they stabbed each other with forks. The father has been arrested for disorderly conduct and drunkenness. And in 1993, the juvenile court found that the father had sexually molested his wife’s 11-year-old daughter by attempting to penetrate her vagina with his penis. At the termination hearing, the father admitted that in a court proceeding only a few months earlier he had stipulated that he had neglected the children and had not provided them with adequate medical care, food or sanitary living conditions.

Both the mother and father have extremely low intellectual functioning. A doctor’s psychological evaluation shows that the father has pronounced cognitive impairment and that he is incapable of providing a safe and secure home for the children. The evaluation of the mother shows that she too has significant cognitive impairment and is a chronic drug addict incapable of providing good parental supervision.

Decided August 30, 1999.

Jerry D. McRee, for appellant (case no. A99A2034).

Cassandra M. Ford, for appellant (case no. A99A2035).

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Rubin, Winter, Rapo-port & Hall, Robert E. Hall, Philip B. Spivey, for appellee.

The parents have not supported the children while they have been in the care of the Department, and the parents have failed to complete several reunification case plans. The father and mother have not provided suitable housing for all the children, living in a small trailer with only two bedrooms and one bathroom. A Department caseworker testified that she had visited the trailer only a few days before the termination hearing and it did not have running water or heat and there was dirt all over the floor. On various occasions the living conditions were unsanitary, and the children lacked adequate supervision, clothing and food.

Contrary to the claims of the mother and father, the trial court was authorized to find clear and convincing evidence that the children are deprived, the deprivation is caused by a lack of parental care and control, the deprivation is likely to continue, the continued deprivation is likely to cause serious harm to the children and that termination of the parental rights of both the mother and father is in the best interests of the children. See OCGA § 15-11-81; In the Interest of J. S., 232 Ga. App. 876-881 (1) (502 SE2d 788) (1998). The judgment of the trial court is therefore upheld in both cases.

Judgments affirmed.

McMurray, P. J, and Phipps, J., concur.


text:
    A99A2051.
    In the Interest of J. T., a child.
    (521 SE2d 862)
   Johnson, Chief Judge.

A petition was filed in juvenile court alleging that fifteen-year-old J. T. committed three acts of obstructing Police Officer J. M. Cole by fleeing from him after having been told to stop. An adjudicatory hearing on the petition was held before a juvenile court judge, who found that J. T. committed the three alleged delinquent acts of obstructing Officer Cole. J. T. appeals, asserting there is insufficient evidence to support the adjudications of delinquency. We agree and reverse the judgment of the juvenile court.

In considering the sufficiency of the evidence supporting a juvenile court adjudication of delinquency, we apply the same standard of review that is used in any criminal case by construing the evidence in favor of the adjudication to determine if a rational trier of fact could have found beyond a reasonable doubt that the juvenile committed the acts charged. In the Interest ofM. G., 233 Ga. App. 23 (503 SE2d 302) (1998). In the instant case, we must construe the testimony of Officer Cole, the only witness at the hearing, in favor of the delinquency adjudications.

So construed, Cole’s testimony shows that on October 24, 1998, he drove his police car into an apartment complex that is known for drug activity. Cole saw J. T. sitting on a bicycle talking to. a female who was sitting on a motor vehicle. When J. T. saw the officer getting out of his car, he began to leave on his bicycle. Officer Cole told J. T. to stop and chased after him on foot, but J. T. did not obey the command and left the scene.

On October 30, 1998, Officer Cole again saw J. T. sitting on his bicycle near the entrance of the apartment complex. J. T. again left on his bicycle. Cole told J. T. to stop, but J. T. did not stop. The officer chased after him on foot, but was unable to catch him.

Officer Cole next saw J. T. on November 4, 1998, in a Burger King restaurant parking lot. He tried to sneak up on the juvenile, but when J. T. saw the officer he again pedaled away on his bicycle. Cole chased after him in his police car, turned on the car’s siren and told J. T. over the car’s public address system to stop. But again J. T. did not stop, and the officer eventually gave up the chase. Several days later, Officer Cole found J. T. inside a restaurant and arrested him for misdemeanor obstruction based on the prior incidents of not obeying the commands to stop.

“[A] person who knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties is guilty of a misdemeanor.” OCGA § 16-10-24 (a). In the instant case, the state argues that Officer Cole was in the lawful discharge of his duties the first time he tried to stop J. T. because the juvenile was violating a county ordinance against loitering in a known drug area. Thereafter, the state reasons, Officer Cole’s subsequent attempts to stop J. T. were also lawful based on J. T.’s initial violation of that ordinance and his prior acts of obstruction by fleeing.

The state’s argument is without merit because the state failed to prove the existence of the local ordinance. Where such an ordinance is relied on, it must be pleaded and proved in the trial court, and absent a properly admitted copy of the ordinance, neither the trial court nor this court may take judicial notice of its existence. OCGA § 24-7-21; Reed v. State, 229 Ga. App. 817, 818 (a) (495 SE2d 313) (1997); Dudley v. State, 161 Ga. App. 310, 311 (1) (287 SE2d 763) (1982). The record before us does not contain a copy of the county ordinance relied on by the state, and nowhere in the trial transcript does it appear that the state attempted to introduce the ordinance into evidence. Consequently, the state’s reliance on that ordinance is misplaced.

The question, then, is whether there is sufficient evidence before us that Officer Cole was in the lawful discharge of his official duties on the three occasions he tried to stop J. T. We find that there is not such evidence. While the officer was certainly authorized to approach J. T. and speak with him on each occasion, he had no authority to stop him in the absence of any particular and objective reason to suspect J. T. of criminal activity. Therefore his repeated attempts to detain the juvenile were not lawful.

There are three tiers of police-citizen encounters: (1) communication between police and citizens involving no coercion or detention and therefore not subject to Fourth Amendment scrutiny; (2) brief seizures that must be supported by reasonable suspicion; and (3) full-scale arrests that must be supported by probable cause. In the Interest of S. B., 207 Ga. App. 60, 61 (427 SE2d 52) (1993). In the first tier, a police officer may approach a citizen, ask for identification and question the citizen without any basis or belief that he is involved in criminal activity, as long as the officer does not detain the citizen or create the impression that the citizen may not leave. Welborn v. State, 232 Ga. App. 837, 839 (2) (503 SE2d 85) (1998). The second tier occurs when the officer conducts a brief investigative stop of the citizen due to a particularized and objective reason for suspecting the person is involved in criminal activity. McClain v. State, 226 Ga. App. 714, 716 (1) (487 SE2d 471) (1997).

During Officer Cole’s three encounters with J. T, he never had any particular and objective reason to suspect J. T. of criminal activity. Cole did not testify that he saw J. T. engage in any suspicious activity before any of the instances when he pedaled away on his bicycle. At most, during the first and second encounters, J. T. was in or near a known drug area. But J. T.’s mere presence in such an area, without more, could not give Officer Cole a reasonable suspicion that J. T. was engaged in illegal activity. See Singleton v. State, 235 Ga. App. 88 (508 SE2d 461) (1998).

All Cole’s testimony establishes is that on each occasion J. T. was on his bicycle in a public place doing nothing improper or suspicious. Thus, the officer had no lawful basis for stopping, even briefly, the juvenile. Instead of being second-tier encounters during which a brief seizure would have been lawful, the three instances when Officer Cole saw J. T. were police-citizen encounters of the first tier during which J. T. was free to leave. See Barnes v. State, 228 Ga. App. 44, 46 (491 SE2d 116) (1997). He appropriately exercised that freedom in each instance.

Decided August 30, 1999.

M. Muffy Blue, for appellant.

Jonath A. Morrow, Solicitor, Lori B. Duff, Assistant Solicitor, for appellee.

“A police officer is not discharging his lawful duty when he arrests an individual without reasonable or probable cause.” (Citation, punctuation and emphasis omitted.) Woodward v. State, 219 Ga. App. 329, 330 (1) (465 SE2d 511) (1995). Likewise, a police officer is not discharging his lawful duty when he attempts to detain briefly a citizen without a particularized and objective basis for suspecting criminal activity. See generally Barnes, supra; State v. King, 227 Ga. App. 466, 468-469 (489 SE2d 361) (1997). Because Officer Cole was not lawfully discharging his official duties when he tried to stop J. T. without a proper basis, J. T. did not obstruct the officer by refusing to stop. See Woodward, supra at 330-331 (1); Wagner v. State, 206 Ga. App. 180, 181-183 (424 SE2d 861) (1992). The adjudications of delinquency for misdemeanor obstruction must therefore be reversed. See generally In re G. M. M., 179 Ga. App. 800, 802 (1) (348 SE2d 126) (1986).

Judgment reversed.

McMurray, P. J., and Phipps, J., concur.


author: Blackburn, Presiding Judge.

text:
    A99A1491.
    BTH HOLDINGS, INC. v. BET USA, INC.
    (521 SE2d 670)
   Blackburn, Presiding Judge.

BTH Holdings, Inc. appeals the trial court’s order granting summary judgment to the defendant, BET USA, Inc., in the underlying declaratory judgment action involving the interpretation of the indemnity provision contained in a stock purchase agreement. BTH also contends that the trial court erred in denying its motion for partial summary judgment. For the reasons set forth below, we reverse the trial court’s order granting summary judgment to BET and denying BTH’s motion for partial summary judgment.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

The underlying declaratory judgment action involved the construction of an indemnity provision contained in a stock purchase agreement entered into between BTH and BET, by which BTH purchased all of the stock of SIPCO Services & Marine, Inc. from BET. The trial court determined that under the facts presented, BTH was not entitled to indemnification from BET.

BET owned SIPCO from September 25, 1986 to September 26, 1993. During 1991 and 1992, Sidney Ervin worked for SIPCO at another company’s (Brown & Root, Inc.’s) Bayou facility. BTH purchased SIPCO’s stock from BET in 1993. In 1995, Ervin, the former SIPCO employee, sued Brown & Root and others, claiming that he had developed lung disease as a result of his exposure to airborne contaminants while he was working for SIPCO at Brown & Root. Brown & Root cross-claimed against SIPCO, alleging that the subcontract between SIPCO and Brown & Root obligated SIPCO to indemnify it for all liability, fees, and costs incurred as a result of the Ervin suit.

In the present case, BTH, the present owner of SIPCO, contends that the indemnity provision contained in the stock purchase agreement requires that BET, the owner of SIPCO when Ervin’s claim arose, indemnify its losses resulting from the Ervin suit. The stock purchase agreement provided that Texas law applied to its interpretation and construction. The indemnity provision contained in the stock purchase agreement pertinently provides that:

[BET] agree [s] ... to indemnify and hold [BTH] harmless from and against any and all loss, liability, obligation, damage, cost or expense . . . incurred or suffered by or asserted against [BTH], directly or indirectly . . ., as a result of or in connection with . . . (c) claims of employees of [SIPCO] with respect to occupational disease or injuries with respect to events, circumstances or conditions which existed, arose or occurred during the period after [September 25, 1986] and prior to [September 26, 1993]; (d) any third party liability claims which were made prior to [September 26, 1993] for damages arising from accidents, for which [SIPCO] is responsible and which accidents occurred after [September 25, 1986] and prior to [September 26, 1993] (i) for claims which do not exceed $50,000 and (ii) for such claims which are in excess of $50,000 and which are listed on Schedule 10.1.2 (d); (e) third party claims or potential claims arising from events occurring after [September 25, 1986] and prior to [September 26, 1993] which are listed on Schedule 10.1.2 (d) hereof.

Schedule 10.1.2 (d) contains a list of claims involving specific parties or incidents which had occurred previously.

Pursuant to the language of the indemnity provision contained in the stock purchase agreement, we must determine whether Brown & Root’s claim for indemnity against BTH, for the damages it is required to pay based on Ervin’s injuries, is a claim for an injury asserted against BTH “directly or indirectly as a result of or in connection with” a claim of an employee with respect to an occupational disease.

Texas law provides that

[indemnity agreements are to be strictly construed in favor of the indemnitor. However, the doctrine of strictissimi juris is not a rule of construction; it is a rule of substantive law applicable only after the parties’ intent has been ascertained through ordinary rules of construction. In determining intent, the general rule is that words and phrases will be given their ordinary, popular, and commonly accepted meaning.

(Citations omitted.) Keystone Equity Mgmt. v. Thoen, 730 SW2d 339, 340 (Tex. App. 1987). “In construing contracts we must seek the intention of the parties from the language used in the contract. All of the language used is to be considered.” (Punctuation omitted.) Amoco Chem. Corp. v. Sutton, 551 SW2d 459, 466 (Tex. App. 1977).

In Westchester Fire Ins. Co. v. American Gen. Fire &c. Co., 790 SW2d 816 (Tex. App. 1990), an insured sued its insurer to establish the insurer’s obligation to defend it against a third-party’s claim of indemnification for liability for the death of an employee of the insured. In determining the applicability of an exclusion to the insurance contract, the Texas Court of Appeals found that the third-party’s claim for indemnification arose out of an injury to an employee, which was excluded from coverage. Id. The court specifically held that “[i]t is undisputed that the [third-party’s] claim is one arising out of such an injury, even though the claim takes the form of a suit for indemnity. The form is immaterial in our view.” (Emphasis supplied.) Id. at 818.

Similarly, in the present case, the form of the suit against BTH is immaterial. BET agreed to indemnify BTH against any and all losses asserted against BTH directly or indirectly as a result of a claim of an employee with respect to occupational diseases which arose during a certain period of time. Brown & Root’s claim for indemnity against BTH is based on its potential liability for the occupational disease of a former employee of BET. This scenario falls squarely within the indemnity provision contained in the stock purchase agreement as a covered indirect claim.

Decided August 17, 1999

Reconsideration denied August 31, 1999

Shapiro, Fussell, Wedge, Smotherman & Martin, Nicholas S. Papleacos, for appellant.

Gorby & Reeves, Michael S. Reeves, for appellee.

BET contends that indemnity provisions (d) and (e) regarding third-party claims more specifically address the present situation and provide that indemnification is not required under the present facts. This contention is without merit. The provisions reflecting indemnification for third-party claims merely provide indemnification for additional claims, and they do not restrict the indemnification provided for in the earlier provision of the agreement. Where a contract unambiguously provides for indemnity of a claim in one section and, yet, the same claim does not fall within the parameters of another portion of the indemnity provisions, indemnification is still appropriate. The claim need not fall under each provision for indemnity unless the contract clearly requires such. This is not such a contract.

Interpreting the entire indemnity provision as a whole and giving meaning to all words and phrases, the parties clearly intended that BTH would be indemnified for all claims resulting from occupational diseases of SIPCO employees arising during a specific period of time. Therefore, because the form of the suit brought by Brown & Root is immaterial, see Westchester Fire Ins. Co., supra, the trial court erred in determining that BTH was not entitled to indemnification. BTH’s motion for summary judgment should have been granted, and BET’s motion for summary judgment should have been denied.

Judgment reversed.

Barnes and Ellington, JJ., concur.


author: Phipps, Judge.

text:
    A99A1192.
    WHITLOCK v. THE STATE.
    (521 SE2d 901)
   Phipps, Judge.

Jimmy Whitlock was convicted of armed robbery and aggravated assault. For the armed robbery, he was given the mandatory minimum sentence of ten years’ imprisonment without possibility of parole. OCGA § 17-10-6.1 (b). He was given a concurrent ten-year sentence for the aggravated assault. Following denial of his motion for new trial, he appeals his convictions.

An indictment was returned charging Whitlock, Terry Evans, and Joseph Houston with one count each of armed robbery and aggravated assault on June 7, 1997. The indictment alleged that a purse and its contents had been taken from Maggie Scott by use of a handgun and that an aggravated assault with intent to rob was committed upon Bill Sparks. The indictment also charged Evans, Houston, and a third individual with two counts of robbery by sudden snatching on May 29, 1997. Evans pled guilty to the June 7 crimes. He and his girlfriend, Rebecca McDonald, testified for the State at Whitlock’s trial.

Sparks and Scott were University of Georgia students. Testimony given by them showed that at approximately 3:00 a.m. on June 7, they were walking toward Sparks’s apartment in a dimly lit area on Baxter Street when they were accosted by three males. The one in the middle pointed a gun at Sparks’s face and demanded money. Sparks handed his wallet to the taller man on the right while telling him that the wallet contained no money. After the taller man searched the wallet and returned it, Sparks gave him Scott’s purse containing a billfold with credit cards and six dollars in cash. The robbers kept the billfold and fled the scene.

When questioned by police concerning the May 29 robberies, McDonald provided information as to the crimes committed on June 7. McDonald testified that on the evening of June 6, she and her friend Kim Trent had come from Commerce to Athens where they “met up” with her boyfriend Evans, Houston, and Whitlock; and that she observed Evans and Houston in possession of guns.

Testimony given by McDonald and Evans showed that Whitlock was attempting to secure money so he and Trent could get a motel room. At approximately 3:00 a.m. on June 7, the group was proceeding down Baxter Street in a car owned by McDonald but driven by Evans, when Whitlock noticed a male and a female college student standing in the area of an apartment building. At Whitlock’s urging, Evans stopped the car and the three men exited it. Then they went around the building and returned to the car several minutes later.

McDonald testified that the three men attempted to conceal their faces as they walked away from the car. Evans testified that Houston pulled a handgun and told the victims to “give it up,” whereupon the wallet and purse were handed to Whitlock. According to Evans and McDonald, Evans drove McDonald and the others to a Krystal restaurant after Evans and the other two men returned to the car. According to McDonald, Evans and Houston discussed the robbery en route, and Houston said that he had told the victims to “give it up.” McDonald further testified that while they were in the car, the billfold was given to her after Whitlock went through it and removed the six dollars; and, after arriving at the restaurant, she deposited the billfold and credit cards in a trash can. McDonald’s and Evans’s testimony further showed that the group went from the Krystal to a motel and got a room in Trent’s name. They stayed there for about one and one-half hours. Whitlock and Trent were in the room by themselves most of the time.

Neither Sparks nor Scott was able to positively identify any of their assailants. But upon viewing Whitlock at trial, Sparks testified that he was the same height, build, and general physique as the man who had taken his wallet and Scott’s purse. Scott gave like testimony concerning this man’s height. Sparks also testified that the man who took the wallet and purse was either bald or nearly bald. McDonald-testified that on June 7, Whitlock was almost bald.

1. Based on conflicts in the testimony of McDonald and Evans concerning events prior and subsequent to commission of the armed robbery and aggravated assault, Whitlock contends the evidence is insufficient to support his convictions. Whitlock argues that McDonald and Evans were both accomplices in the crimes and their testimony contained too many conflicts to corroborate each other.

“In a felony case, ‘there can be no conviction upon the testimony of an accomplice, unless the same is corroborated by other evidence connecting the accused on trial with the perpetration of the crime, and tending to show his participation therein.’ [Cit.]” Adkins v. State, 138 Ga. App. 349, 350 (1) (226 SE2d 137) (1976).

However,

“[i]t is not required that this corroboration shall of itself be sufficient to warrant a verdict, or that the testimony of the accomplice be corroborated in every material particular. [Cits.] Slight evidence from an extraneous source identifying the accused as a participator in the criminal act will be sufficient corroboration of the accomplice to support a verdict. [Cit.] The sufficiency of the corroboration of the testimony of the accomplice to produce conviction of the defendant’s guilt is peculiarly a matter for the jury to determine. If the verdict is founded on slight evidence of corroboration connecting the defendant with the crime, it can not be said, as a matter of law, that the verdict is contrary to the evidence. [Cit.]”

Brown v. State, 232 Ga. 838, 840 (209 SE2d 180) (1974).

Moreover, the testimony of one accomplice may corroborate that of another. Brookshire v. State, 230 Ga. App. 418, 420 (496 SE2d 757) (1998). Conflicts in the testimony of the witnesses, including the State’s witnesses, are a matter of credibility for the jury to resolve. Thrasher v. State, 225 Ga. App. 717-718 (1) (484 SE2d 755) (1997).

It appears from the record that there is an insufficiency of evidence to support a finding that McDonald was a party to the armed robbery. However, corroboration of her testimony still would be needed if she became a participant in the criminal enterprise by receiving stolen property. See Selvidge v. State, 252 Ga. 243 (313 SE2d 84) (1984). Even if corroboration were required for this reason, - Evans’s and McDonald’s testimony did corroborate one another as to Whitlock’s guilt as each witness testified to facts and circumstances which, in themselves and independently of the testimony of the other, directly connected Whitlock to the crimes. See generally Brookshire, supra. The sufficiency of the corroborating testimony was a matter for the jury. See id. Viewed in a light most favorable to the verdict, the evidence would authorize any rational trier of fact to conclude beyond a reasonable doubt that Whitlock is guilty of the offenses charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Whitlock charges the trial court with error in limiting his cross-examination of Evans concerning the sentences he could have received for the crimes he committed and his motivation for testifying at trial.

On direct examination, Evans testified that he pled guilty to the armed robbery and aggravated assault charges and had not made any deal with the district attorney’s office. On cross-examination, Evans claimed no such deal could have been made. Before Evans could explain the reason, a bench conference was conducted at the behest of the court. During the conference, defense counsel argued that to disprove Evans’s claim that there was no deal, he wanted to show the jury that Evans could have received a maximum sentence of eighty years’ imprisonment if he had been convicted of the four crimes charged in the indictment but was only given a minimum sentence of ten years. After extensive discussion, the court allowed counsel to show the crimes with which Evans had been charged and the counts which were dismissed, and that he received minimum sentencing for the crimes to which he pled guilty even though he could have received a substantial amount of time on the charges. The court would not let counsel inform the jury of the lengths of the minimum and maximum sentences because that would have injected into the trial the matter of the sentencing to which Whitlock was subject, thereby diverting the jury’s attention from the issues of guilt or innocence.

Decided August 31, 1999.

Anthony T. Pete, for appellant.

Harry N. Gordon, District Attorney, James D. Love, Assistant District Attorney, for appellee.

“ ‘ “It is especially important in a case where a witness or an accomplice may have substantial reason to cooperate with the government that a defendant be permitted to search for an agreement between the government and the witness.” [Cit.] . . .’ [Cit.]” Hines v. State, 249 Ga. 257, 260 (2) (290 SE2d 911) (1982). Consequently, the trial court abuses its discretion when it prohibits all inquiry on the subject. Id.; see Owens v. State, 251 Ga. 313, 314 (1) (305 SE2d 102) (1983). The trial court nonetheless retains wide latitude to impose reasonable limits on cross-examination, based on such concerns as the prevention of prejudice and of questioning on subjects that are only marginally relevant. Shaw v. State, 201 Ga. App. 456, 457 (411 SE2d 537) (1991) (physical precedent only), citing Delaware v. Van Arsdall, 475 U. S. 673, 679 (106 SC 1431, 89 LE2d 674) (1986).

Here, the State’s witness denied he had made a deal with the prosecutor in exchange for his testimony. The testimony Whitlock was permitted to elicit from the witness provided an ample basis for the jury to infer that such a deal had been made. Moreover, the so-called “minimum” sentence which the witness received was. ten years’ incarceration without possibility of parole for the only count of the indictment subject to such a requirement. The limitation imposed on Whitlock’s cross-examination of the witness did not hamper his ability to challenge the witness’s credibility. We find no abuse of discretion.

Judgment affirmed.

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


author: Andrews, Presiding Judge.

text:
    A99A1304.
    In the Interest of J. L., a child.
    (522 SE2d 239)
   Andrews, Presiding Judge.

J. L. was alleged to be delinquent in two petitions stating that the juvenile violated the Georgia Controlled Substances Act in that he tested positive for marijuana on two separate occasions while he was on probation for another juvenile violation. After a hearing pursuant to OCGA § 15-11-33 (a), the juvenile court found that J. L. committed both alleged acts and committed him to the Department of Juvenile Justice. J. L. appeals claiming the juvenile court erroneously admitted evidence over objection and that the evidence is insufficient to support the court’s findings.

Decided August 31, 1999.

Griner & Mírate, Galen A. Mírate, for appellant.

Richard E. Currie, District Attorney, Albert H. Tester, Assistant District Attorney, for appellee.

J. L. testified at the hearing and denied that he had used marijuana. In support of the allegations, the State produced the results of two tests which apparently showed on some basis that J. L. had ingested marijuana. The test results are not part of the record. Moreover, over the objection of J. L.’s counsel, the test results were admitted into evidence by the juvenile court without any testimony or other foundation to support their admission.

This record is wholly insufficient to support the juvenile court’s findings that J. L. committed the alleged acts. Under the Juvenile Court Code and numerous decisions of this Court, “the juvenile charged with ‘delinquency is entitled by right to have the court apply those common law jurisprudential principles which experience and reason have shown are necessary to give the accused the essence of a fair trial.” (Citations, punctuation, and emphasis omitted.) In the Interest of S. L. H., 205 Ga. App. 278, 279-280 (422 SE2d 43) (1992); T. L. T. v. State, 133 Ga. App. 895, 899 (212 SE2d 650) (1975). These include the right to confront and cross-examine witnesses and the right to proof of the allegations beyond a reasonable doubt. Id. at 898-899. Since these rights were not afforded J. L. on the present record, the judgment must be reversed.

Judgment reversed.

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


author: McMurray, Presiding Judge.

text:
    A99A1720.
    In the Interest of M. C., a child. In the Interest of M. W., a child.
    A99A1721.
    (521 SE2d 900)
   McMurray, Presiding Judge.

In connection with petitions alleging their delinquency for acts which, if committed by an adult, would constitute the offense of criminal damage to property in the second degree, the children M. C. and M. W. stipulated they participated in an unlawful entry to vacant residential property where intentional property damage was committed, but contested the contention that property damage caused thereby exceeded $500. Viewed in the light most favorable to the juvenile court’s adjudications of delinquency, the evidence of damage to property was as follows:

A third child, S. V., used to live in the house at issue. She had no key but climbed in a window and opened the garage. Once inside, the children found crayons and began writing on the walls, which was “all right because since [S. V.’s family] were moving out, they [the owners] were going to fix the house up.” Timothy Eugene Tise, owner of the property at 435 Sherwood Oaks Road, described the damage done during this incident: Writing on the wall, from tic-tac-toe to obscenities; the sliding glass rear door had been jimmied, and there was wet paper in the sinks, where someone “tried to fill the sinks with water where it would overflow. . . .” Water was dripping from the ceiling and blinds were torn down. Mr. Tise conceded there was pre-existing tenant damage but showed photographs depicting the subsequent damage caused during the instant unlawful entry “separate and above” any existing damage. Although Mr. Tise has spent close to $3,000 in anticipation of selling the house, he confirmed it “cost [him] a total of $780.00 to fix the damage from this [particular incident].”

The juvenile court ordered restitution in the amount of $780, with M. C. and M. W. to pay a pro rata share of $260. From these dis-positional orders, M. C. and M. W. appealed separately, each raising a single identical enumeration of error arguing the sole evidence of damage is nonprobative hearsay. The appeals are hereby consolidated. Held:

In order to sustain an adjudication of delinquency for acts which, if committed by an adult, amounted to criminal damage to property in the second degree as proscribed by OCGA § 16-7-23 (a) (1), the State was obliged to offer sufficient probative evidence allowing a rational trier of fact to conclude that M. C. and M. W, as parties to the crime, intentionally caused damage in excess of $500 to property of another without the owner’s consent. In the Interest of A. F., 236 Ga. App. 60 (1) (510 SE2d 910). Although there is evidence in the case sub judice that the $780 damage figure originated as an estimate made by the owner’s contractor, who did not testify, nevertheless at the dispositional hearing, Mr. Tise, the owner, testified he had in fact already paid $3,000, of which, $780 went to repair the damages caused by this incident. When the witness testifies as to what he has actually paid as the monetary amount necessary to make his property whole again, he is not thereby stating his opinion as to value or damage, but is relating a fact based upon his personal knowledge. Van Voltenburg v. State, 138 Ga. App. 628 (1), 629 (227 SE2d 451). From this established fact and from the photographs described in the record, the juvenile court had sufficient competent evidence to determine that the damage M. C. and M. W. intentionally caused was in excess of $500. Holbrook v. State, 168 Ga. App. 380 (1), 381 (308 SE2d 869).

Decided August 31, 1999.

M. Muffy Blue, for appellant.

Jonath A. Morrow, Solicitor, Lori B. Duff, Assistant Solicitor, for appellee.

Judgments affirmed.

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


text:
    A99A1758.
    REDSTROM v. THE STATE.
    (521 SE2d 904)
   McMurray, Presiding Judge.

On September 9, 1998, the solicitor for the State Court of Gwin-nett County preferred accusations against defendant-appellant, charging him with driving under the influence of alcohol and speeding. On December 18, 1998, defendant made a demand under the provisions of OCGA § 17-7-170, for speedy trial “within the present term or the next term” of the State Court of Gwinnett County. The “present term” would have been the November 1998 Term of the State Court of Gwinnett County. On March 3, 1999, defendant moved for discharge and acquittal, supporting his motion with the affidavit of Dorothy N. Ash, Jury Manager for the Gwinnett Judicial Circuit, who deposed that jurors were summoned and available for the week of December 7,1998, and the week of December 14,1998; and further that, no jurors were available for the rest of December 1998. According to the trial court’s order, at the hearing on defendant’s motion, Jury Manager Ash was present but did not testify personally because the substance of her evidence was proffered by the State’s attorney without objection, as follows: There was no jury available on the date defendant filed his demand on Friday, December 18, 1998, because “all jurors in the courthouse were serving on [other] juries and that all other jurors had been released as of the close of business on Thursday, December 17, 1998.” The trial court reasoned that, due to the absence of an impaneled jury on the day the demand was filed (the last day of the term), the motion did not trigger the two-term period until the next succeeding term. From the denial of his motion for discharge and acquittal, defendant brings this direct appeal, as authorized by Hubbard v. State, 254 Ga. 694 (333 SE2d 827). Held:

Defendant enumerates the denial of his motion for discharge and acquittal, arguing the trial court erred in concluding that the December 18, 1998, filing of defendant’s demand for speedy trial failed to trigger the two-term period in which to try or acquit him. We affirm.

The statutory provision for speedy trial in non-capital cases is OCGA § 17-7-170.

If the person is not tried when the demand is made or at the next succeeding regular court term thereafter, provided at both terms there were juries impaneled and qualified to try him, he shall be absolutely discharged and acquitted of the offense charged. . . .

(Emphasis supplied.) OCGA § 17-7-170 (b). A demand for speedy trial, with the right to discharge, involves the impaneling of two traverse juries qualified to try the defendant; one when it is made, and the other at the next successive term. Adams v. State, 65 Ga. 516, 517 (1) (1880). In order to trigger the statute, the defendant must make his demand at a time that a traverse jury is impaneled and qualified to try him. Kirk v. State, 194 Ga. App. 801, 802 (392 SE2d 249). A traverse jury or a petit jury is one impaneled to try a prosecution as distinguished from a grand jury. DeKrasner v. State, 54 Ga. App. 41 (1) (187 SE 402). According to Black’s Law Dictionary (4th ed., p. 886) the term “ ‘impanel’ signifies the act of the clerk of the court in making up a list of the jurors who have been selected for the trial of a particular cause.” Accord Kirk v. State, 194 Ga. App. 801, 802, supra. A term or the remainder of a term in which no juries are impaneled and qualified to try the case is not counted for purposes of OCGA § 17-7-170. George v. State, 269 Ga. 863, 864 (505 SE2d 743).

In the case sub judice, the record shows that, at the time defendant filed his motion at 4:00 p.m. on the last business day of the November 1998 term, all jurors were dismissed and not subject to recall. See State v. McDonald, 242 Ga. 487, 489 (249 SE2d 212); Maclnnis v. State, 235 Ga. App. 732, 734 (510 SE2d 557). The Supreme Court of Georgia has rejected the argument that a court term should count merely because jurors were impaneled previously during that term, since discharged jurors are neither impaneled nor qualified to try a defendant, and so fail to meet the statutory requirements for a speedy trial. Pope v. State, 265 Ga. 473, 474 (458 SE2d 115). Defendant stipulated that the jurors had been released that Friday, and there is no evidence they were subject to recall for that day. In the absence of clear and convincing evidence to the contrary, we will not disturb the trial court’s factual finding that no jury qualified to try defendant was impaneled at the time defendant’s demand was filed, or for the remainder of the November 1998 term. Wilson v. State, 156 Ga. App. 53, 54 (274 SE2d 95). The trial court correctly concluded that defendant’s filing did not trigger the two-term requirement of OCGA § 17-7-170 (b) during the November 1998 Term of the State Court of Gwinnett County, and so properly denied defendant’s motion for discharge and acquittal.

Decided August 31, 1999

William C. Head, for appellant.

Gerald N. Blaney, Jr., Solicitor, Gary S. Vey, Assistant Solicitor, for appellee.

Judgment affirmed.

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


author: Ruffin, Judge.

text:
    A99A0949.
    In the Interest of B. L. S. et al., children.
    (521 SE2d 906)
   Ruffin, Judge.

Following a hearing, the Thomas County Juvenile Court terminated the parental rights of the parents of B. L. S. and M. J. S. The children’s mother appeals, arguing that there was insufficient evidence to support the termination of her parental rights. We affirm.

In reviewing appellant’s challenge to the sufficiency of the evidence, we determine “whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost.” (Punctuation omitted.) In the Interest of A. G., 230 Ga. App. 395, 396 (1) (496 SE2d 752) (1998). We do not weigh the evidence or determine the credibility of witnesses, but defer to the juvenile court’s factfinding. In the Interest of L. H., 236 Ga. App. 132, 133 (1) (511 SE2d 253) (1999).

Viewed in this light, the evidence shows as follows. In September 1995, the Thomas County Department of Family & Children Services (“DFACS”) obtained emergency custody of four-year-old B. L. S. and two-year-old M. J. S. after appellant left them with a woman who was unable to care for them. Following a hearing, the juvenile court entered an order finding that the children were deprived and transferring custody of them to DFACS for a period not to exceed 18 months. Appellant did not appeal that ruling. The children were placed in foster care, and DFACS developed a case plan to reunite appellant with her children. The case plan set various goals for appellant, including keeping a stable home environment, visiting the children, learning to manage her money, and getting counseling; it also outlined specific steps designed to help her meet those goals.

The juvenile court extended its initial custody order several times with appellant’s consent. The children remained in the custody of DFACS for approximately three years. Appellant’s progress was reviewed every six months by DFACS and a judicial citizen review panel. The case plan was revised numerous times, but the goals remained essentially unchanged.

On August 6, 1998, DFACS filed a petition to terminate the parental rights of the parents of B. L. S. and M. J. S. on the grounds that the father could not be found and appellant had made no significant progress toward accomplishing the goals set forth in her case plans. On September 25, 1998, the juvenile court held a hearing on the petition.

Dr. Ann Lucas, a licensed psychologist who examined appellant in April 1997 and again in June 1998, testified at the hearing that appellant functions cognitively at a fourth or fifth grade level and has a dependent personality disorder. According to Lucas, the personality disorder renders appellant unable to care for herself or others “in a consistent and nurturing way” and unable to provide adequately for the physical, mental, emotional, and moral needs of her children. Lucas testified that the disorder is long term and can be overcome only with years of “extremely intensive” therapy. Lucas noted that at her second evaluation, appellant was able to recite information about appropriate parenting skills, but Lucas believed that appellant was unable to apply this knowledge to her own children and “still was very overwhelmed by ordinary life kinds of skills and situations.”

Dr. Lisa Rudolph Watson, a psychiatrist, testified that she had approximately 12 counseling sessions with B. L. S. from August 1996 to September 1998. Dr. Watson diagnosed B. L. S. as suffering from attention deficit hyperactivity disorder, for which she prescribed medication, as well as a reactive attachment disorder. According to Dr. Watson, these disorders have resulted in impaired social skills and will require that B. L. S. receive ongoing medication and special care. Dr. James Brown, a licensed clinical psychologist, testified that he has counseled B. L. S. on a weekly basis since January 1998 for “issues relating to her history of neglect as well as current adjustment problems in her foster home.” Dr. Brown testified that B. L. S. suffers from post traumatic stress disorder, obsessive compulsive “picking of her skin,” and fear of closed places, and he attributed these problems to her “primary home of origin.” According to Dr. Brown, B. L. S. needs a stable, permanent home as soon as possible, and delay in this regard could result in serious psychological harm.

Dr. Brown also testified that he has observed M. J. S. on several occasions and found her to be immature for her age. A psychological evaluation of M. J. S. conducted in October 1997 concluded that “intervention came at a crucial time in this child’s life as she is functioning relatively well at this point in time.”

Sandy Godwin, appellant’s DFACS caseworker from January to August 1998, testified that she repeatedly met with appellant, explained the requirements of the case plans, and offered numerous services to help appellant obtain stable employment, get counseling, and develop parenting skills. According to Godwin, however, appellant failed to comply with the case plans and made no progress in her ability to parent her children. Appellant initially attended counseling, but admittedly dropped out after six sessions because, according to her, it was “unreasonable” of DFACS to require her to see a psychiatrist and she “didn’t really see the need in going.” Appellant went to some of the prescribed parenting classes, but dropped out because she felt she “[got] the meaning of it.” DFACS then arranged for a parenting instructor to visit appellant at home, but appellant missed all nine scheduled appointments because she was not home. Godwin testified that since her children were removed from her custody, appellant has moved 12 times, living with various people, and has had 13 changes in employment. Finally, Godwin testified that appellant does visit her children every other week, but cannot control them and grows frustrated during the visits.

Pam Glover, another DFACS caseworker who worked with appellant from March to September 1998, testified that appellant failed to keep her informed of changes in address and employment, so that Glover had trouble finding her, and failed to turn over bill receipts in compliance with the case plan. Glover also testified that at one point, appellant was living with a family that DFACS had worked with in the past and did not consider to be an appropriate placement for children. Appellant told Glover that she has no family in the area who could provide support. According to Glover, appellant made no progress during the time that Glover worked with her and lacks the ability to concentrate on her children and provide a stable home.

Appellant admitted at the hearing that she has neglected her children in the past by leaving them with different persons, but stated that she feels she has “learned [her] lesson.” She testified that if she regained custody of her children, she would take care of them and provide them with a place to live. Appellant also testified that she understood that the case plans were designed to enable her to get her children back, but stated that she decided about seven months before the hearing not to cooperate with DFACS anymore because it would be futile.

The children’s guardian ad litem also testified at the hearing, recommending termination of parental rights. On October 9, 1998, the juvenile court issued an order terminating appellant’s parental rights based on its finding that the children were deprived due to (1) appellant’s inability to parent, stemming from her personality disorder, and (2) appellant’s misconduct, stemming from her failure to comply with the court-ordered plans to reunite her with her children. The juvenile court thus terminated the parental rights of appellant and the unknown father or fathers of B. L. S. and M. J. S.

A two-step analysis is employed in parental rights termination cases. First, there must be a finding of parental misconduct or inability, which requires clear and convincing evidence that: (1) the child is deprived; (2) the lack of proper parental care or control is the cause of the deprivation; (3) the cause of the deprivation is likely to continue; and (4) continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. OCGA § 15-11-81 (b) (4) (A) (i)-(iv); In the Interest of L. H., supra at 132-133 (1). If these four factors exist, then the court must determine whether termination of parental rights is in the best interest of the child, considering the child’s physical, mental, emotional, and moral condition and needs, including the need for a secure, stable home. Id.; OCGA § 15-11-81 (a).

In this case, there was ample clear and convincing evidence of the four factors required to establish parental misconduct or inability. First, “[t]he unappealed deprivation orders of the juvenile court are sufficient to establish that [the children were] deprived within the meaning of OCGA § 15-11-81 (b) (4) (A) (i).” In the Interest of A. C., 234 Ga. App. 717, 719 (507 SE2d 549) (1998).

Second, in determining whether the children were without proper parental care and control, the juvenile court was authorized to consider any “medically verifiable deficiency of the parent’s physical, mental, or emotional health of such duration or nature as to render the parent unable to provide adequately for the physical, mental, emotional, or moral condition and needs of the child.” OCGA § 15-11-81 (b) (4) (B) (i). Dr. Lucas testified that appellant suffers from a dependent personality disorder, which renders her unable to care for her children and can be treated only by years of intensive therapy. “A mental disability that renders a parent incapable of caring for the child is a valid legal basis for termination.” (Punctuation omitted.) In the Interest of L. H., supra at 135 (1). This is particularly true given appellant’s unwillingness to undergo treatment for her disorder.

The juvenile court also could consider whether appellant without justifiable cause failed significantly for a period of one year or more to comply with the court-approved case plans developed by DFACS to reunite her with her children. OCGA § 15-11-81 (b) (4) (C) (iii); In the Interest of R. P., 216 Ga. App. 799, 800-801 (2) (456 SE2d 107) (1995). The undisputed evidence clearly showed that appellant failed to comply over a three-year period with virtually every goal set forth in the case plans — including not attending mental health counseling, not participating in parenting classes, and not maintaining a stable home or regular employment — despite numerous efforts by DFACS to assist her in meeting the goals. Appellant showed no justifiable cause for failing to comply with the case plans. In fact, she testified that she did not attend counseling sessions and parenting classes because she thought she did not need them and that she decided to stop cooperating with DFACS approximately seven months before the termination hearing because she thought it was futile. Appellant’s failure over a three-year period to meet the goals of her case plans provides an additional basis for the juvenile court’s finding that lack of proper parental care or control by appellant caused her children’s deprivation. See In the Interest of J. S., 232 Ga. App. 876, 879 (1) (502 SE2d 788) (1998); In the Interest of R. P., supra.

Third, in determining whether the children’s deprivation is likely to continue, the juvenile court could consider appellant’s past conduct. In the Interest of A. C., 234 Ga. App. at 719. The evidence showed that appellant had a serious psychological condition that rendered her incapable of caring for her children and that she had made little or no progress toward obtaining adequate parenting skills. Yet, at the time of the hearing, appellant was not attending counseling sessions or parenting classes and professed no interest in doing so. Although appellant apparently had a job, a place to live, and a car at the time of the hearing, “a few months of partial stability [do] not establish for the court that [appellant was] capable of maintaining . . . progress.” (Punctuation omitted.) In the Interest of J. S., supra at 880. Appellant’s wilful failure to attend counseling sessions and parenting classes, coupled with the evidence of past deprivation, authorized the juvenile court’s finding that the deprivation of B. L. S. and M. J. S. would likely continue should the two be returned to appellant’s custody.

Fourth, clear and convincing evidence showed that continued deprivation likely would harm the children. According to the mental health professionals who testified at the hearing, B. L. S. requires special attention for her multiple psychiatric and psychological problems, which could worsen unless she is quickly placed in a stable home. Although there was little testimony about the condition of M. J. S., Dr. Watson testified that all children need a stable home environment.

As to the second prong of the termination analysis, the evidence also was sufficient to show that termination of appellant’s parental rights was in the best interest of B. L. S. and M. J. S. We have held that “the court may consider the child’s need for a stable home environment and the detrimental effects of prolonged foster care. Children need permanence of home and emotional stability or they are likely to suffer serious emotional problems.” (Citation omitted.) In the Interest of J. O. L., 235 Ga. App. 856, 858 (510 SE2d 613) (1998). Here, the evidence showed that both children, and B. L. S. in particular, need a stable home and could be harmed by prolonged foster care. In addition, the same factors which show appellant’s inability to care for her children support a finding that termination of parental rights would be in the children’s best interest. Id. Accordingly, we affirm the order of the juvenile court terminating the parental rights of appellant.

Decided September 1, 1999.

T. Mark Thedieck, for appellant.

Thurbert E. Baker, Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Daniel M. Mitchell, Jr., Melinda M. Katz, for appellee.

Judgment affirmed.

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

       The identity of the children’s father or fathers is not known. Appellant provided the names of two potential fathers of B. L. S. and M. J. S., but paternity tests were negative. No one has ever acted as a father toward the children or claimed to be the father, and a search of the Georgia Putative Father Registry yielded no information about paternity.


text:
    A99A1580.
    SMITH v. THE STATE.
    (521 SE2d 911)
   Andrews, Presiding Judge.

Guy Christopher Smith appeals from the judgment entered on his plea of guilty to two counts of statutory rape and two counts of child molestation. Smith contends that, when the trial court rejected his plea agreement with the State, it erred by failing to follow the requirements of Uniform Superior Court Rule (USCR) 33.10.

USCR 33.10 provides that:

If the trial court intends to reject the plea agreement, the trial court shall, on the record, inform the defendant personally that (1) the trial court is not bound by any plea agreement; (2) the trial court intends to reject the plea agreement presently before it; (3) the disposition of the present case may be less favorable to the defendant than that contemplated by the plea agreement; and (4) that the defendant may then withdraw his or her guilty plea as a matter of right. If the plea is not then withdrawn, sentence may be pronounced.

A plea hearing was held on November 23, 1998. Pursuant to the plea agreement, the State told the trial court at the hearing that it had a sentence recommendation to make to the court. Thereafter, the trial court stated:

[Y]ou understand that regardless of any joint recommendation between your attorney and the District Attorney or what else [sic] anyone else may have told you[,] that this Court and this Court alone will impose a sentence upon you within the limits set by law which I’ve explained to you, do you understand that?

Smith responded, “Yes,” to this statement and thereafter reaffirmed that he still wished to enter a plea of guilty. The trial court accepted Smith’s guilty plea and set sentencing for a subsequent hearing.

Pursuant to the plea agreement, the State recommended to the Court at the subsequent hearing that Smith be sentenced to fifteen years with the first six years to be served in confinement. After the trial court determined that defense counsel had nothing to add, the court immediately imposed a sentence on Smith which rejected the sentence recommended pursuant to the plea agreement and sentenced Smith to a substantially longer term to serve in confinement and on probation.

We agree with Smith that this record fails to show compliance with the requirements of USCR 33.10. Contrary to the State’s contention, the above quoted statement by the trial court at the first hearing was not sufficient to comply with the requirements of USCR 33.10. We find nothing in the record which clearly informed Smith prior to pronouncement of sentence, that the trial court intended to reject the sentence recommendation made by the State pursuant to the plea agreement, that the disposition of the case may be less favorable to him than that contemplated by the plea agreement, and that, given the trial court’s intention, he was entitled to withdraw his guilty plea as a matter of right prior to pronouncement of sentence. Fuller v. State, 159 Ga. App. 512, 513 (284 SE2d 29) (1981). The informational requirements of USCR 33.10 must be satisfied by explicit statements, not by vague statements or implication. Lawrence v. State, 234 Ga. App. 603 (507 SE2d 490) (1998). Accordingly, the judgment of the trial court must be reversed.

Judgment reversed.

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

Decided September 1, 1999.

Ronald L. Beckstrom, for appellant.

J. David Miller, District Attorney, Mark E. Mitchell, Assistant District Attorney, for appellee.

       Smith was not required, as the State contends, to file a motion to withdraw his guilty plea in the trial court in order to preserve his right to a direct appeal from the judgment entered on the plea. Agerton v. State, 191 Ga. App. 633, 634 (382 SE2d 417) (1989); Fuller, 159 Ga. App. at 513-514.


text:
    A99A1570.
    DENSON v. MALOY et al.
    (521 SE2d 666)
   Blackburn, Presiding Judge.

In this legal malpractice action brought against Bruce Maloy and his law firm, Roland Denson appeals the dismissal of his case, contending: (1) his claim was not barred by the statute of limitation; (2) his failure to attach an expert affidavit to the complaint did not warrant dismissal of the malpractice action; (3) the trial court erred by finding he failed to exercise due diligence to serve Maloy; (4) the trial court erred by failing to strike the affidavit of Maloy; (5) the trial court erred by dismissing his fraud claim based on the failure to plead it with particularity; and (6) the trial court erred by denying Denson’s motion for summary judgment. As Denson’s claims were barred by the statute of limitation, we affirm.

Denson alleges that Maloy, who handled the appeal following the denial of Denson’s habeas corpus petition, committed legal malpractice and fraud by submitting incomplete “record excerpts” to the Court of Appeals and by failing to raise certain grounds for relief. Maloy filed the allegedly deficient appellate brief on Denson’s behalf on March 10, 1992. The appellate court affirmed Denson’s sentence and conviction on October 2, 1992.

In April 1996 Denson presented the complaint in this action in forma pauperis. However, his application for pauper’s status, rejected twice by the trial court, was not allowed. The complaint was accepted for filing on December 23, 1996 when Denson paid filing fees. Maloy was served on March 7, 1997. Subsequently, the trial court granted Maloy’s motion to dismiss the complaint.

1. As we have held:

A motion to dismiss for failure to state a claim upon which relief may be granted should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. ... In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party’s favor.

Decided August 17, 1999

Reconsideration denied September 2, 1999.

Ronald Denson, pro se.

Gleaton, Persons, Egan & Jones, Frederick N. Gleaton, Patricia A. Wager, for appellees.

(Footnotes omitted.) Anderson v. Flake, 267 Ga. 498, 501 (2) (480 SE2d 10) (1997).

The trial court properly found that the statute of limitation barred Denson’s complaint. The four-year statute of limitation applicable to legal malpractice claims runs from the date of the alleged incident of malpractice. Hunter, Maclean, Exley &c., P.C. v. Frame, 269 Ga. 844 (507 SE2d 411) (1998). The acts of alleged malpractice occurred in March 1992, with the filing of the briefs and excerpts, more than four years before the complaint was filed or served.

Denson’s claim of professional malpractice was properly dismissed for the additional reason that he failed to file an expert affidavit with the complaint. OCGA § 9-11-9.1. As Maloy raised this defense in its answer, dismissal of the claim was mandated. Id.; Holloway v. Northside Hosp., 230 Ga. App. 371 (496 SE2d 510) (1998)..

The four-year statute of limitation applicable to fraud claims runs from the date actual injury occurs. OCGA § 9-3-31; Hardaway Co. v. Parsons, Brinckerhoff, Quade &c., 267 Ga. 424 (479 SE2d 727) (1997). The latest possible date Denson’s alleged injury occurred was on October 2, 1992, when the appellate court affirmed his sentence and conviction, more than four years before the complaint was filed or served.

2. Our holding in Division 1 renders the remaining enumerations of error moot.

Judgment affirmed.

Barnes and Ellington, JJ, concur.

       Denson was convicted and sentenced on federal drug charges.


text:
    A99A0891.
    POWELL v. THE STATE.
    (522 SE2d 244)
   Johnson, Chief Judge.

With the assistance of retained counsel, Perry Powell entered guilty pleas in three cases. He appeals from the judgments of conviction and sentences entered by the trial court, claiming the trial court erred in denying his motion to withdraw his guilty pleas, in sentencing him “in breach” of the negotiated plea agreement, and in resen-tencing him in only one of the three cases. We find no error and affirm.

In Dougherty County Superior Court Case No. 98R247, Powell was charged with possession of cocaine, manufacture of marijuana, possession of less than an ounce of marijuana, and possession of a firearm during the commission of a crime. In Case No. 98R742, Powell was charged with theft by receiving stolen property, possession of marijuana with intent to distribute, and possession of cocaine with intent to distribute. In Case No. 98R743, Powell was charged with dog fighting and 20 counts of cruelty to animals.

Powell negotiated a plea agreement with the state on most of the charges, while the remaining charges, which are not relevant to this appeal, were dismissed or are still pending. Powell agreed to plead guilty to possession of cocaine and manufacture of marijuana in Case No. 98R247; guilty to possession of marijuana with intent to distribute and possession of cocaine in Case No. 98R742; and guilty to 14 counts of cruelty to animals in Case No. 98R743. The state agreed to recommend that Powell serve no more than a total of ten years in prison.

At the plea hearing, the court asked Powell a series of questions regarding such matters as the voluntariness and factual basis of his pleas and whether Powell understood that the agreement was not binding on the court. The court accepted the pleas and postponed sentencing until August 3.

At the sentencing hearing, the trial court sentenced Powell to serve ten years in prison in Case No. 98R247; ten years in prison on the marijuana charge and five years in prison on the cocaine charge in Case No. 98R742; and fourteen years in prison in Case No. 98R743. All of the sentences were to run concurrently with each other.

On August 12, Powell filed a “Motion to Withdraw Guilty Plea.” The motion referred to Case No. 98R742 (the possession of cocaine and possession of marijuana with intent to distribute case), but complained only of the 14-year sentence given in Case No. 98R743 (the animal cruelty case). In the written motion, Powell argued that the parties’ negotiated plea agreement provided that he would serve no more than a total of ten years in prison and that the court (a) failed to inform him of its intention to reject the agreement, and (b) refused to allow him to withdraw the pleas. See generally State v. Germany, 246 Ga. 455, 456 (1) (271 SE2d 851) (1980). After a hearing which was not transcribed, the court granted the motion to withdraw the plea, vacated the sentence imposed, and set a new sentencing hearing for August 28.

At the new sentencing hearing, Powell argued that the plea agreement concerned all three cases and because the agreement was not followed, his guilty pleas in all three cases had been set aside. He said he was therefore entitled to enter new guilty pleas in all three cases, offer evidence in mitigation, then be resentenced in each case. The state pointed out that, except for the 14-year sentence imposed in the animal cruelty case, the sentences were consistent with the plea agreement. The state further asserted that only the plea in the animal cruelty case was at issue in the prior hearing and that was the only case in which the plea was withdrawn and the sentence vacated.

The court agreed with the state, recalling that Powell was allowed to withdraw the plea only in the animal cruelty case. When the court announced that it would address only the sentence imposed in that case, defense counsel replied: “All right. Very good, your Honor.” The court sentenced Powell to serve five years in prison on that case. Powell did not object to the sentence imposed or to the court’s decision not to consider the other two cases.

1. Powell contends the trial court erred “in hot allowing [him] to withdraw his guilty plea when the terms of the negotiated plea were not followed.” He seems to argue that he should have been permitted to withdraw all three guilty pleas. However, in his motion to withdraw, Powell complained of only the 14-year sentence entered in one of the cases. The trial court allowed Powell to withdraw the guilty plea in that case. The new sentence was consistent with the terms of the negotiated plea agreement. This court will not grant more relief than was requested below. Ardeneaux v. State, 225 Ga. App. 461, 462 (2) (484 SE2d 74) (1997).

Moreover, because after resentencing Powell received sentences consistent with the terms of the negotiated plea, he has failed to show harm. See generally Threatt v. State, 211 Ga. App. 630, 632 (3) (c) (440 SE2d 61) (1994); Miller v. State, 160 Ga. App. 639 (1) (287 SE2d 643) (1981). This enumeration presents no grounds for reversal.

2. Powell’s similar argument that the court erred in sentencing him contrary to the terms of the negotiated plea agreement is likewise without merit, inasmuch as the sentences were consistent with the agreement.

3. Powell claims the court erred in resentencing him in one case while allowing the sentences in the other two cases to stand. Although his argument is unclear, he apparently contends the court should have resentenced him in all three cases.

Decided September 2, 1999.

David E. Slemons, for appellant.

Kenneth B. Hodges III, District Attorney, James L. Corbett, Assistant District Attorney, for appellee.

Powell waived any such objection. At the resentencing hearing, the trial court stated that only the animal cruelty case was at issue and announced its intention to impose a new sentence only in that case. As set out in detail above, defense counsel did not object to the court’s plan, but indicated, his approval. Shortly thereafter, when the court imposed the new sentence in the animal cruelty case, the state asked if the other two cases remained the same. The trial court replied that they did. Powell still voiced no objection. Powell had several opportunities to object to the imposition of a new sentence in less than all three cases, but failed to do so.

A litigant cannot submit to a ruling, acquiesce in the ruling, and still complain of same. He is required to stand his ground and fight in order to successfully enumerate as error an alleged erroneous ruling by the trial judge. Acquiescence completely deprives him of the right to complain further; he has agreed that the trial court’s ruling was correct by submitting to it.

(Citations and punctuation omitted.) Sanders v. State, 181 Ga. App. 117, 120 (2) (351 SE2d 666) (1986).

Moreover, Powell has cited and we have found no authority supporting his contention that resentencing in one case requires resen-tencing in all other cases brought against a particular defendant. The cases were brought under separate accusations and the court imposed separate sentences for each case. Under these circumstances, we find no error. See generally Philmore v. State, 263 Ga. 67, 70 (6) (428 SE2d 329) (1993) (cases not considered “consolidated for trial” where convictions resulted from separate indictments and separate orders of sentence entered on each indictment).

Judgments affirmed.

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


text:
    A99A0923.
    KELLIBREW v. THE STATE.
    (521 SE2d 921)
   Ruffin, Judge.

A jury found Kevin Kellibrew guilty of aggravated assault and aggravated battery for shooting Tyrus Bullock. The trial court sentenced Kellibrew to 20 years on each count, to be served consecutively. On appeal, Kellibrew challenges the sufficiency of the evidence. In addition, Kellibrew contends the trial court erred (1) in requiring him to proceed with trial without adequate notice, (2) in permitting the State to introduce evidence of his character, and (3) in ruling that the two offenses of which he had been convicted did not merge. Kellibrew’s claims of error lack merit, and we affirm.

1. Kellibrew contends that the evidence is insufficient to sustain his aggravated assault and aggravated battery convictions. In reviewing Kellibrew’s convictions, we view the evidence in the light most favorable to the verdict to determine whether-any rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). We address only the sufficiency of the evidence, and we do not weigh the evidence or determine the credibility of the witnesses. As long as there is some evidence, even though contradicted, to support each necessary element of the State’s case, the jury’s verdict will be upheld. Howard v. State, 227 Ga. App. 5, 8 (6) (a) (488 SE2d 489) (1997).

Viewed in a light most favorable to the jury’s verdict, the evidence shows that the victim, Tyrus Bullock, was working as a security guard at a Hampton Inn on August 3, 1995. At around 10:30 that night, Bullock was waiting to meet his supervisor in the parking lot when he saw a man wearing a dark jogging suit walking through the lot. As a car drove into the lot, Bullock watched the man hide behind some bushes until the car had passed. The man then emerged from the bushes and began walking from car to car, looking into car windows and attempting to open car doors.

After Bullock approached the man and asked him in which room he was staying, the man attempted to flee. Bullock grabbed the man by the jacket and took him inside the hotel. Once inside, Bullock recognized the man as Kevin Kellibrew. Bullock testified that he was able to recognize Kellibrew because they had been in jail together in DeKalb County and had been transferred to the same state prison where they would see each other in the law library and would lift weights together.

According to Bullock, he asked Kellibrew why he was trying to break into cars, and Kellibrew responded that he was “trying to make a living.” Kellibrew then asked Bullock if he knew him from Reidsville. Bullock said “Kellibrew, you don’t know me from Reids-ville.” Bullock testified that Kellibrew looked surprised when Bullock used Kellibrew’s name.

Bullock, who told the clerk at the front desk to call the police, heard Kellibrew say “Man, I’m not going to jail. I can’t go back to jail. I’m not going to jail.” Bullock then noticed that Kellibrew was holding an automatic pistol. Kellibrew shot Bullock in the right hand, and Bullock began to run down a hallway toward a back door. As Bullock was running, Kellibrew continued shooting at him, hitting him in his legs, back and hip. Bullock reached the door and collapsed against it. Once Bullock was down, Kellibrew walked back toward the front desk. Bullock heard two shots fired. Kellibrew then returned to Bullock and shot him six more times, hitting him in his head, neck and back. As a result of the gunshot to his neck, Bullock was partially paralyzed from the neck down.

Kellibrew contends the evidence was insufficient to sustain his convictions because two witnesses testified that he was at the home of an attorney who was representing him in a workers’ compensation case when the shooting took place. However, Kellibrew’s “alibi defense does not demand an acquittal because the jury was authorized to disbelieve it.” Kinney v. State, 234 Ga. App. 733, 735 (1) (506 SE2d 441) (1998). Given the victim’s identification of Kellibrew as the person who fired the gun, the jury was authorized to find Kel-librew guilty of the offenses charged.

2. Kellibrew maintains that the trial court erred in requiring him to proceed to trial without giving him adequate notice of trial in accordance with Uniform Superior Court Rule (USCR) 32.1. That rule requires that

[t]he judge . . . shall prepare a trial calendar, shall deliver a copy thereof to the clerk of court, and shall give notice in person or by mail to each counsel of record . . . and the defendant at the last address indicated in court records, not less than 7 days before the trial date or dates.

According to Kellibrew, the trial court violated this rule by notifying him on December 19 that he would have to go to trial on December 20, 1995. We disagree.

On October 27, 1995, Kellibrew filed a demand for a speedy trial pursuant to OCGA § 17-7-170. Thus, the State had to try him no later than December 31, 1995, the end of the next succeeding term of court, or he would have been discharged and acquitted by operation of law. See OCGA § 17-7-170 (b). The State agreed to continue the trial to January 2,1996, if Kellibrew would withdraw his speedy trial demand, but Kellibrew would not drop his demand.

In requiring Kellibrew to proceed with trial, the trial court did not err notwithstanding any deviation from USCR 32.1. As this Court recently recognized, “[cjompliance with Rule 32.1 must be judged in the circumstances of each case.” Sykes v. State, 236 Ga. App. 518, 521 (2) (511 SE2d 566) (1999). Where, as here, compliance with the notice requirement of USCR 32.1 would cause the State to violate a defendant’s right to a speedy trial, a trial court does not abuse its discretion in proceeding to trial in accordance with the defendant’s speedy trial demand. Dally v. State, 237 Ga. App. 577, 578-579 (2) (516 SE2d 87) (1999).

3. According to Kellibrew, the trial court erred in permitting the State to introduce evidence regarding his incarceration for prior convictions. Kellibrew argues that this evidence improperly introduced his character into evidence. This argument lacks merit.

“No evidence of general bad character or prior convictions shall be admissible in a criminal case unless and until the defendant shall have first put his character in issue. OCGA § 24-9-20 (b).” (Punctuation omitted.) Weems v. State, 269 Ga. 577, 580 (3) (501 SE2d 806) (1998). “Authority appears to be split on the question of whether mentioning a defendant’s prior incarceration places his character into evidence.” Setser v. State, 233 Ga. App. 822, 825 (2) (505 SE2d 798) (1998). Even if such testimony does impugn a defendant’s character, its admission is not automatically error. As this Court has recognized,

[t]here are numerous instances where the State may properly offer evidence that the defendant has committed prior crimes for a purpose other than to show the defendant is a person of bad character. The fact that such evidence may reflect adversely on the defendant does not necessarily place his character in issue within the meaning of OCGA § 24-9-20 (b).

(Punctuation omitted.) Agony v. State, 226 Ga. App. 330, 332 (3) (486 SE2d 625) (1997).

As Bullock was the only witness who could identify Kellibrew, the State’s case rested on the credibility of Bullock’s positive identification of Kellibrew as the culprit. Thus, the evidence that the two had spent time together in jail was relevant to Bullock’s ability to recognize Kellibrew. See Battle v. State, 195 Ga. App. 542, 544 (2) (394 SE2d 788) (1990). Moreover, we note that Bullock testified that, before shooting him, Kellibrew said he “can’t go back to jail.” This statement was clearly admissible as part of the res gestae even if such evidence incidentally placed Kellibrew’s character in evidence. See Parrish v. State, 237 Ga. App. 274, 282 (8) (514 SE2d 458) (1999).

“The admission of evidence is discretionary with the trial court, and this court will not interfere with that court’s ruling absent abuse.” (Punctuation omitted.) Oliver v. State, 232 Ga. App. 816, 824 (4) (503 SE2d 28) (1998). In this case, the trial court did not abuse its discretion in admitting evidence of Kellibrew’s prior incarceration.

4. Finally, Kellibrew contends that the trial court erred in ruling that the aggravated assault conviction and the aggravated battery conviction did not merge. In determining whether merger has occurred, the key question is whether the different offenses are proven with the same facts. Reeves v. State, 233 Ga. App. 802, 805 (2) (505 SE2d 540) (1998). “[I]f one crime is complete before the other takes place, the two crimes do not merge. However, if the same facts are used to prove the different offenses, the different crimes merge.” (Punctuation omitted.) Id.

The indictment in this case charged Kellibrew with aggravated battery in that he maliciously caused bodily harm to Bullock by shooting him, rendering his legs and arms useless. The indictment further charged Kellibrew with aggravated assault in that he “did make an assault on the person of Tyrus Bullock, with a handgun.”

The evidence showed that, after shooting Bullock in the hand, back and leg, Kellibrew left Bullock and went toward the front desk where Kellibrew fired additional shots. Kellibrew then returned to Bullock and shot him in the neck, paralyzing Bullock. Thus, rather than having one continuous shooting spree, the evidence demonstrates that two separate acts occurred — the first constituting aggravated assault and the second constituting aggravated battery. Accordingly, “the evidence in this case does not demonstrate that the aggravated assault and the aggravated battery were based on the same conduct within the contemplation of OCGA § 16-1-7, with the result that the separate convictions for these offenses may stand.” (Punctuation omitted.) Malone v. State, 226 Ga. App. 185, 187 (2) (486 SE2d 57) (1997).

Decided September 2, 1999.

Cynthia A. Price, Julie D. Herrin, for appellant.

J. Tom Morgan, District Attorney, Thomas S. Clegg, Barbara B. Conroy, Assistant District Attorneys, for appellee.

Judgment affirmed.

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

       Kellibrew also was charged with possession of a firearm by a convicted felon during the commission of a crime, but this count was nolle prossed; hence, it is not before us.

       The terms of court in DeKalb County begin the first Monday in January, March, May, July, September and November. OCGA § 15-6-3 (37).

       Kellibrew contends that Bullock’s testimony was irrelevant because he never challenged Bullock’s ability to identify him. Kellibrew’s defense in this case was that he “wasn’t there and did not do this horrible crime.” In closing, his attorney argued that Bullock’s drug use “could affect his ability to observe.” Thus, the crux of Kellibrew’s defense was that Bullock mistakenly identified him as the culprit. Accordingly, Kellibrew did challenge Bullock’s ability to identify him, and Bullock’s testimony was relevant to his ability to identify Kellibrew.