text:
    A99A0644.
    E. HOWARD ST. CLAIR & ASSOCIATES, INC. v. NORTHWEST CARPETS, INC.
    (515 SE2d 660)
   Eldridge, Judge.

Plaintiff E. Howard St. Clair & Associates, Inc., d/b/a Days Inn of Princeton, West Virginia (“St. Clair”), obtained a default judgment against defendant Northwest Carpets, Inc., in the Circuit Court of Mercer County, West Virginia, on or about September 11, 1997. The judgment was the result of a suit by St. Clair which alleged that Northwest Carpets sold defective carpet to Leisure Time Supply of Mount Airy, North Carolina. Leisure Time Supply in turn sold the carpet to St. Clair. Pursuant to Leisure Time Supply’s instructions, Northwest Carpets shipped the carpet from its Georgia plant to West Virginia. After delivery, St. Clair brought suit in West Virginia against Northwest Carpets and obtained a default judgment for damages arising out of the alleged manufacturing defects.

On June 12, 1998, St. Clair filed the judgment in the Superior Court of Whitfield County, Georgia, seeking to domesticate the judgment pursuant to Georgia’s Uniform Enforcement of Foreign Judgments Law (UEFJL), OCGA § 9-12-130 et seq. St. Clair also filed a notice to rely on West Virginia law, specifically W. Va. Code § 56-3-33, as to in personam jurisdiction.

On June 18, 1998, Northwest Carpets filed a motion to set aside the judgment under OCGA § 9-11-60 (d) (1) in the Whitfield County Superior Court, asserting that the West Virginia court lacked in personam jurisdiction over Northwest Carpets. After a hearing on August 7,1998, the Whitfield County Superior Court granted Northwest Carpets’ motion to set aside the judgment. St. Clair appeals. Held-.

“Under the full faith and credit clause of the United States Constitution, a judgment of a foreign court will be enforced by the courts of this State. The uniform law [OCGA § 9-12-130 et seq.] provides a procedure for filing and enforcing foreign judgments in this state.” (Citations and punctuation omitted.) Chambers v. Navare, 231 Ga. App. 318 (1) (498 SE2d 173) (1998). Under OCGA § 9-12-132,

[a] copy of any foreign judgment authenticated in accordance with an act of Congress or statutes of this state may be filed in the office of the clerk of any court of competent jurisdiction of this state. The clerk shall treat the foreign judgment in the same manner as a judgment of the court in which the foreign judgment is filed. A filed foreign judgment has the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating, staying, enforcing, or satisfying as a judgment of the court in which it is filed and may be enforced or satisfied in like manner.
When suit is brought to domesticate a foreign judgment, the judgment may be attacked collaterally [under OCGA § 9-11-60 (d) (1)] on the ground the foreign court lacked personal jurisdiction over the defendant. If the foreign judgment was obtained by default, no presumption of personal jurisdiction exists. The party seeking to domesticate the judgment bears the burden of negating the defense of lack of personal jurisdiction. See Sanwa Leasing Corp. v. Stan Hunt Constr. Co., 214 Ga. App. 837 (449 SE2d 347) (1994); Brown v. U. S. Fidelity &c. Co., 208 Ga. App. 834, 835 (2) (432 SE2d 256) (1993).

Giarratano v. Glickman, 232 Ga. App. 75 (501 SE2d 266) (1998). See also Okekpe v. Commerce Funding Corp., 218 Ga. App. 705, 710 (3) (463 SE2d 23) (1995) (Beasley, C. J., concurring specially). During a hearing on the determination of jurisdiction, in personam jurisdiction must be proven by a preponderance of the evidence. State ex rel. Bell Atlantic-W. Va. v. Ranson, 201 W. Va. 402 (III) (497 SE2d 755) (1997). Since St. Clair filed a notice of its intent to rely on foreign law, West Virginia law controls the determination as to whether the West Virginia court had in personam jurisdiction over Northwest Carpets. Chambers v. Navare, supra at 319 (2).

If the party seeking to domesticate the judgment fails to fulfill its burden in establishing the jurisdiction of the foreign court, the Georgia trial court may set aside the judgment. See OCGA § 9-11-60 (d) (1).

Such action by the Georgia court. . . will not affect enforceability in [West Virginia] or elsewhere. The effect, in the foreign state, of a Georgia court’s setting aside the domesticated judgment would only affect its enforceability here. Were it a Georgia judgment instead, a Georgia court’s setting aside the judgment would end its viability altogether.

(Citation and punctuation omitted.) Chambers v. Navare, supra at 318 (1), citing Okekpe v. Commerce Funding Corp., supra at 713 (Beasley, C. J., concurring specially).

In this case, during the hearing on Northwest Carpets’ motion to set aside the judgment, Northwest Carpets affirmatively established that its only contact with West Virginia was shipping the carpet to the state pursuant to the instructions of its customer, Leisure Time Supply of North Carolina. Northwest Carpets presented evidence that it did not have property, offices, shareholders, or employees in West Virginia; did not have customers in the state; and did not market its products specifically to the state. In other words, the only contact that Northwest Carpets had with West Virginia was placing this specific carpet order from a North Carolina company into the stream of commerce.

In response, St. Clair presented no evidence to support the West Virginia court’s assertion of jurisdiction except the judgment itself, which presented the findings of fact upon which it had based its in personam jurisdiction. Such allegations included Northwest Carpets’ acts of (1) entering into a “contract which was to be performed, in whole or in part, within the State of West Virginia”; and (2) manufacturing, selling, and supplying a product which caused harm to property located in West Virginia. Applying the two-part analysis of Abbott v. Owens-Coming Fiberglass Corp., 191 W. Va. 198 (444 SE2d 285) (1994), the West Virginia Court found (1) that these acts were sufficient to establish jurisdiction under the state’s corporate and long arm statutes, W. Va. Code §§ 33-1-15 and 56-3-33 (a) (1), and (2) that Northwest Carpets’ contacts with the state met the minimum contacts necessary to satisfy federal due process requirements. See also Hill v. Showa Denko, K.K., 188 W. Va. 654 (425 SE2d 609) (1992).

However, in its order on Northwest Carpets’ motion to set aside the judgment, the Superior Court of Whitfield County, Georgia, found that Northwest Carpets’ only contact with West Virginia was placement of its carpet into the stream of commerce. Citing Weir-Cove Bakery v. Universal Oven Co., 518 FSupp. 383 (N. D. W. Va. 1981), the Georgia court found that this act was insufficient to give West Virginia in personam jurisdiction over Northwest Carpets.

St. Clair argues on appeal that it has met its burden of negating Northwest Carpets’ claim of lack of in personam jurisdiction under West Virginia law and complains that the Georgia court inappropriately relied upon Georgia law in evaluating the West Virginia court’s jurisdiction. However, it is clear from the record that the Georgia court considered the West Virginia case cited by St. Clair in reaching its conclusion regarding jurisdiction.

During the hearing on Northwest Carpets’ motion to set aside the judgment and on appeal, St. Clair relied upon Hill v. Showa Denko, K.K., supra, for the proposition that the sole act of placing a product into the stream of commerce is a “transaction” for the purposes of finding personal jurisdiction under the Long Arm Statute and that

personal jurisdiction premised on the placement of a product into the Stream of Commerce is consistent with the Due Process Clause, and can be exercised without the need to show additional conduct by the defendant aimed at the forum state. Asahi [Metal Indus. Co. v. Superior Court of Cal., 480 U. S. 102, 117 (107 SC 1026, 94 LE2d 92) (1987)].

(Punctuation omitted.) However, in Hill v. Showa Denko, K.K., supra, the foreign corporation, S. D. K., had a wholly owned subsidiary, S. D. A., which distributed the products in West Virginia and “clearly” solicited business there. Id. at 614, 616. Accordingly, West Virginia’s Supreme Court of Appeals found that the burden of requiring S. D. K. to submit to the state’s jurisdiction was “minimal,” while the burden of requiring the plaintiff to travel to Japan was “substantial.” Id. at 616.

Accordingly, West Virginia cases subsequent to Hill v. Showa Denko, K.K., supra, have limited its expansive holding to require West Virginia courts to undergo a “qualitative analysis” of the foreign corporation’s contacts with the state and to preclude the “use of ‘mechanical tests’ and ‘talismanic jurisdictional formulas.’ Burger King Corp. v. Rudzewicz, 471 U. S. 462, 478, 485 [(105 SC 2174, 85 LE2d 528)] (1985).” Norfolk Southern R. Co. v. Maynard, 190 W. Va. 113 (437 SE2d 277) (1993). See also Shaffer v. Heitner, 433 U. S. 186 (97 SC 2569, 53 LE2d 683) (1977); Intl. Shoe Co. v. Washington, 326 U. S. 310 (66 SC 154, 90 LE2d 95) (1945). “Indeed, the foreseeability that is critical to due process analysis is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there. World-Wide Volkswagen Corp. v. Woodson, [444 U. S. 286, 297 (100 SC 559, 62 LE2d 490)] (1980).” (Punctuation omitted; emphasis supplied.) Norfolk Southern R. Co. v. Maynard, supra at 280. Such determination “must be made on the particular facts of each case.” (Citations and punctuation omitted.) State ex rel. Bell Atlantic W. Va. v. Ranson, supra at 767, citing Kulko v. Superior Court of Cal., 436 U. S. 84 (98 SC 1690, 56 LE2d 132) (1978).

Decided April 7,1999.

Goddard, Thames, Hammontree & Bolding, Fred S. Bolding, for appellant.

Minor, Bell & Neal, Robert G. McCurry, for appellee.

Under this two-prong analysis, it is unnecessary for this Court to determine whether Northwest Carpets’ undisputed acts were “transactions” for the purpose of establishing in personam jurisdiction under West Virginia’s corporate and long arm statutes. St. Clair failed to present any evidence which could support a finding that Northwest Carpets’ contacts were of such quality that it was fair or reasonable to require Northwest Carpets to defend this suit in West Virginia.

Accordingly, we affirm the Whitfield County Superior Court’s order setting aside the domestication of the West Virginia judgment.

Judgment affirmed.

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

       West Virginia has enacted a substantially similar UEFJL, W. Va. Code § 55-14-1 et seq.

       Under W. Va. Code § 31-1-15,
      a foreign corporation not authorized to conduct affairs or do or transact business in this State pursuant to the provisions of this article shall nevertheless be deemed to be conducting affairs or doing or transacting business herein (a) if such corporation makes a contract to be performed, in whole or in part, by any party thereto, in this State, (b) if such corporation commits a tort in whole or in part in this State, or (c) if such corporation manufactures, sells, offers for sale or supplies any product in a defective condition and such product causes injury to any person or property within this State notwithstanding the fact that such corporation had no agents, servants or employees or contacts within this State at the time of said injury.

       Under W. Va. Code § 56-3-33 (a) (1), nonresidents who “transact! ] any business” in West Virginia are subject to its jurisdiction.


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A99A0908.
    McGHEE v. THE STATE.
    (515 SE2d 656)
   Eldridge, Judge.

Bobby Lee McGhee was convicted by a Peach County jury for the offenses of armed robbery and possession of a firearm during the commission of a crime. He appeals from the trial court’s denial of his motion for new trial.

Viewing the evidence in the light most favorable to the jury’s verdiet, the following was shown: On July 23, 1993, Chon Walla was working at Jason’s MinirMart as a cashier. Walla testified that between 9:00 p.m. and 10:00 p.m., she noticed McGhee standing outside the store “like he was waiting for someone.” McGhee looked inside the store three or four times while he was standing outside. Finally, McGhee opened the door slightly and looked inside. McGhee then entered the store carrying a brown bag in his hand. As McGhee entered the store, he opened the bag, looked inside, and closed the bag. McGhee walked to the counter where the cash register was located and put the brown paper bag on the counter and indicated to Walla that he needed to exchange an item that he previously had purchased. McGhee then put his hand into the paper bag and pulled out a gun that appeared to Walla to be a shotgun. McGhee instructed Walla to put the money from the cash register in the paper bag or he would kill her. As McGhee exited the store with the money, he told Walla “don’t try to call a cop, there’s a bomb outside.”

Walla further testified that McGhee was wearing a red shirt, blue jeans, a cap, and sunglasses at the time of the armed robbery. Walla went on to testify that she “got a good look at his face” from both a front and a side view. Walla testified that she recognized McGhee as a customer who had come into the store three to four times during the last two or three weeks. Both at a pretrial photographic lineup and at trial, Walla positively identified McGhee as the individual who robbed her at gunpoint.

Lorenzo Harris also was working at Jason’s Mini-Mart on July 23, 1993, between 9:00 p.m. and 10:00 p.m. Harris testified as follows: While he was “making some six-packs of Busch,” a man walked into the store with a paper bag in his hand. Harris did not get a clear look at the man, but he saw the shape and front of his face when he turned around and looked at him, and he saw a gun in his hand. Harris could not remember what type of clothing the man was wearing, except he could recall that he had on a hat and a pair of sunglasses. Harris further testified that, as the armed robber left the store, the armed robber instructed them not to call the police, because a bomb was outside.

Alicia Scott testified that she was using the pay-telephone in the parking lot of Jason’s Mini-Mart between 9:00 p.m. and 10:00 p.m. on July 23, 1993. She further testified that McGhee walked up to the pay-telephone next to her and stood looking at the phone book for about five minutes. Scott testified that she recognized McGhee and that she had known McGhee since she was 12 years of age. Scott testified that McGhee was wearing a red shirt, blue jeans, a hat, and sunglasses. Scott spoke to McGhee and watched him walk toward the store. Scott testified that McGhee stopped before he reached the store and walked back to the telephone and stood there for two or three minutes longer. Then McGhee walked back toward the store. Scott testified that she could not see inside the store from where she was standing. The next time Scott saw McGhee, he was running out of the store with a brown paper bag in his hand. Scott watched McGhee run between a dentist office and a car repair shop. At trial, Scott positively identified McGhee.

Scott was able to give police an address for McGhee. Officer William K. Richardson with the City of Fort Valley Police Department testified that the address was for a trailer owned by McGhee’s father. McGhee’s father gave police permission to search the trailer. In a bedroom, which McGhee’s father indicated was occupied by McGhee, police found a red pullover shirt, a pair of blue jeans, a pair of white Nike tennis shoes, and four shotgun shells.

The defendant testified at trial and denied being at Jason’s Mini-Mart on July 23, 1993. Held:

1. McGhee alleges that he was denied effective assistance of counsel at trial. “A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous. [Cit.]” Garrett v. State, 196 Ga. App. 872, 874 (1) (397 SE2d 205) (1990).

To establish a claim of ineffective assistance of counsel, [McGhee] must show both that his trial counsel’s performance was deficient and that counsel’s deficiency so prejudiced his defense that a reasonable probability exists that the result of the trial would have been different but for that deficiency. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). [McGhee] must establish both the performance and the prejudice components of the Strickland test.

Johnson v. State, 222 Ga. App. 722, 728 (9) (475 SE2d 918) (1996). “A conviction will not be reversed on the basis of ineffective assistance of counsel unless counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” (Citation and punctuation omitted.) Cunningham v. State, 222 Ga. App. 740, 743-744 (2) (475 SE2d 924) (1996); Strickland v. Washington, supra at 669. “Furthermore, there is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance, and that any challenged action by trial counsel might be considered sound trial strategy.” (Citations and punctuation omitted.) Clay v. State, 232 Ga. App. 656, 657 (503 SE2d 560) (1998); Strickland v. Washington, supra at 689.

(a) McGhee asserts that his trial counsel was ineffective because counsel did not call two alibi witnesses of whom he had informed counsel. McGhee maintains that these two witnesses would have testified that he was with them during the time of the armed robbery and that he was wearing different clothing from that described by the witnesses thereto. At the time of the hearing on McGhee’s motion for new trial, McGhee’s trial counsel was deceased. However, prior to the start of trial, trial counsel stated on the record that he had subpoenaed the two alibi witnesses; that the witnesses had appeared pursuant to the subpoenas; that he had interviewed the witnesses; and that the witnesses both indicated they knew McGhee, but both witnesses were “quite emphatic that [they did not] know his whereabouts” at the time of the armed robbery on July 23, 1993. Trial counsel stated to the court that, since the witnesses could not testify as to McGhee’s whereabouts at the time of the armed robbery, he felt it would be detrimental to McGhee’s defense to call such witnesses to the stand to testify.

“The determination as to which defense witnesses will be called is a matter of trial strategy and tactics. Trial strategy and tactics do not equate with ineffective assistance of counsel. Effectiveness is not judged by hindsight or by the result.” (Citations and punctuation omitted.) Etheridge v. State, 210 Ga. App. 96, 98 (435 SE2d 292) (1993). In the present case, trial counsel articulated valid reasons for not calling the potential alibi witnesses, and that strategy did not constitute ineffective assistance of counsel.

(b) McGhee also asserts that his trial counsel was ineffective because counsel did not file a motion to suppress the introduction of items seized from McGhee’s room.

McGhee’s trial counsel filed an initial motion for new trial raising only issues of sufficiency of the evidence. After trial counsel’s death, McGhee retained new counsel. At the hearing on the motion for new trial, McGhee’s new counsel orally amended McGhee’s motion for new trial to include a claim of ineffective assistance of counsel. While counsel raised several claims of ineffective assistance of counsel, he failed to specifically assert trial counsel’s failure to file a motion to suppress.

Our Supreme Court has stated that an ineffective assistance of trial counsel claim must be raised at the first practicable moment. Bailey v. State, 264 Ga. 300 (443 SE2d 836) (1994). The Court has further held that a claim of ineffective counsel must be raised before appeal if an opportunity to do so is available. Glover v. State, 266 Ga. 183, 184 (2) (465 SE2d 659) (1996). If the opportunity to present such a claim was available, “the failure to seize that opportunity is a procedural bar to raising that issue at a later time.” Id.

Wilcox v. State, 236 Ga. App. 235, 239 (511 SE2d 597) (1999).

“Any ineffective counsel challenge will be deemed waived if the new attorney files an amended motion for new trial and does not raise the issue before the trial court so that the challenge can be heard at the earliest practicable moment, 1. e., during the hearing on the amended motion.” [Cit.]

Keanum v. State, 212 Ga. App. 662, 663 (1) (442 SE2d 790) (1994). “A defendant has an obligation to raise all allegations of ineffective assistance of counsel at the earliest practicable moment, and any allegation not raised is deemed waived.” (Citation and punctuation omitted.) Stone v. State, 229 Ga. App. 367, 370-371 (494 SE2d 48) (1997). Since this ineffective assistance of counsel claim was not raised at the hearing on the motions for new trial, or in any of the pleadings in the appellate record, it is deemed waived.

2. McGhee also challenges the sufficiency of the evidence.

On appeal [,] the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility. [Cits.]

Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990); see also Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979). “[T]he relevant question is whether . . . any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Cit.]” (Emphasis in original.) Id. Considering the evidence as a whole, we conclude that the evidence adduced at trial was sufficient to enable a rational trier of fact to find McGhee guilty beyond a reasonable doubt of the crime of armed robbery and possession of a firearm during the commission of a crime.

Judgment affirmed.

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

Decided April 7,1999.

Jones & Oliver, Charles E. Jones, for appellant.

Charles H. Weston, District Attorney, Wayne G. Tillis, Howard Z. Simms, Assistant District Attorneys, for appellee.

        Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979).

       After being allowed to verbally amend the motion for new trial prior to the hearing, counsel requested leave to file a written amended motion for new trial. Even if such amended motion for new trial was filed, it is not part of the record on appeal.


author: Blackburn, Presiding Judge.

text:
    A99A0019.
    BROOKS v. THE STATE.
    (515 SE2d 851)
   Blackburn, Presiding Judge.

Jerry Brooks appeals his conviction for the possession of marijuana, following a jury trial. Brooks contends the trial court erred by: (1) admitting into evidence an incriminating statement he made to officers after he had invoked his right to counsel and (2) denying his motion to suppress evidence seized from his vehicle pursuant to a search warrant for the premises. Brooks’ statement was not the product of custodial interrogation, and the search of the vehicle was authorized by the search warrant. We affirm.

The evidence shows that Special Agent John Cagle of the Georgia Bureau of Investigation was informed that Kelly Geist was receiving substantial quantities of marijuana for packaging and distributing. Agent Cagle obtained a search warrant for the “person and premises of Kelly Geist.” Appellant Brooks also lived in the mobile home which was the subject of the search warrant. Agent Cagle and members of the Appalachian Drug Task Force, a multi-jurisdictional drug interdiction unit, executed the warrant. The officers also searched a white pickup truck parked behind the mobile home as part of the search of the premises. Brooks told the officers that the truck belonged to him. The officers found a gallon bag full of marijuana behind the seat of the truck.

After the marijuana was discovered, Brooks was arrested for possession of the marijuana in the truck, and he was taken to the Pickens County jail. Later that evening, Agent Chris Romine of the Pickens County Sheriff’s Office came to the jail to interview Brooks. After Agent Romine advised Brooks of his right to remain silent and his right to counsel, Brooks invoked his right to counsel and refused to discuss the allegations against him.

Agent Romine then began to complete an arrest record on Brooks for the Drug Task Force. The arrest record sought information about Brooks, including name, race, sex, physical description, phone number, education, Social Security number, employer, driver’s license number, vehicle type and tag number, and relatives. Agent Romine completed the form by supplying some of the information himself and by asking Brooks for some of the information.

While Agent Romine was completing the arrest record, Brooks asked him several times about the charges against him. Agent Romine did not respond until he had finished the arrest record. At that time, he told Brooks he was being charged with possession of two pounds of marijuana found in his truck. Brooks blurted out that it was only a pound of marijuana and that it had been there for over a week.

1. Brooks contends the trial court erred by admitting into evidence his statement about the marijuana, asserting that the statement was the product of improper interrogation after he had invoked his right to counsel and therefore should have been excluded. The trial court determined that Brooks’ statement was not the product of custodial interrogation, and we cannot say that determination was clearly erroneous. See Franks v. State, 268 Ga. 238, 242 (486 SE2d 594) (1997).

In Rhode Island v. Innis, 446 U. S. 291, 300-301 (100 SC 1682, 64 LE2d 297) (1980), the U. S. Supreme Court defined the “interrogation” which must be preceded by Miranda warnings as the “express questioning (of a person in custody) or its functional equivalent. . . that is,. . . any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.”

Walton v. State, 267 Ga. 713, 717 (4) (482 SE2d 330) (1997).

The statement here was not the product of questioning initiated by police officers. It was Brooks’ response to the agent’s answer to a question posed by Brooks. Moreover, there is no evidence that Romine knew or should have known that his responsive statement was reasonably likely to elicit an incriminating statement from Brooks. Walton, supra; see Delay v. State, 258 Ga. 229 (367 SE2d 806) (1988) (defendant’s incriminating statement made in response to police officer’s answer to defendant’s questioning the charges against him was not the result of custodial interrogation).

Brooks contends the agent’s questioning to complete the arrest record constituted custodial interrogation which the agent should have known would evoke an incriminating statement. We disagree. We note that

[a] well-established line of federal and state case law has created an exemption from the Miranda rule for questions attendant to arrest, because such questions are not related to the investigation of the case, and at the same time serve a legitimate administrative need. See, e.g., [Pennsylvania v. Muniz, 496 U. S. 582 (110 SC 2638, 110 LE2d 528) (1990)]; Edwards v. State, 220 Ga. App. 74, 76-77 (2) (467 SE2d 379) (1996); Mincey v. State, 257 Ga. 500, 506 (10) (360 SE2d 578) (1987).

(Footnote omitted.) Franks, supra at 239.

Thus, Georgia courts have allowed questions seeking basic biographical data, such as the suspect’s name, age, address, educational background, marital status, and other information required to complete an arrest form. Edwards, supra at 76; Baird v. State, 263 Ga. 868, 871 (1) (440 SE2d 190) (1994); Mincey, supra at 506; Lester v. State, 174 Ga. App. 886, 887 (2) (332 SE2d 31) (1985). Under the facts of this case, the questions to complete the arrest record were not custodial interrogation. See Franks, supra. Moreover, completing the arrest record did not elicit the statement from Brooks. Brooks blurted out the statement in response to Romine’s answer to the question posed by Brooks. The statement by Brooks was properly admitted.

2. Brooks contends that the search warrant for the premises did not authorize the search of his truck, and therefore the trial court erred by denying his motion to suppress the evidence found in that search.

When reviewing a trial court’s decision on a motion to suppress, this court’s responsibility is to ensure that there was a substantial basis for the decision. The evidence is construed most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous. Further, since the trial court sits as the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if there is any evidence to support them.

(Citations and punctuation omitted.) Lambright v. State, 226 Ga. App. 424 (487 SE2d 59) (1997).

[T]he issuance of a search warrant for a certain address authorizes a search of anything within the curtilage of the described premises — i.e., the yards, grounds, gardens, bams, and buildings of an address. . . . Vehicles parked in the driveway or elsewhere on the premises [are] within the curtilage. Bellamy [v. State, 134 Ga. App. 340 (214 SE2d 383) (1975)] (truck parked in driveway); Norman v. State, 134 Ga. App. 767, 768 (1) (216 SE2d 644) (1975) (truck parked in field within 200 feet from residence).

Decided April 8,1999.

Weaver & Weaver, George W! Weaver, Jeffrey L. Floyd, for appellant.

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

Owens v. State, 202 Ga. App. 785 (1) (415 SE2d 704) (1992).

Here, the evidence shows that Brooks’ truck was parked outside the back door of the mobile home and thus was within the curtilage of the premises. The trial court properly denied the motion.

Judgment affirmed.

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


author: Johnson, Chief Judge.

text:
    A99A0111.
    AKERY v. THE STATE.
    (515 SE2d 853)
   Johnson, Chief Judge.

This appeal involves the trial court’s denial of a plea in bar based on double jeopardy grounds.

Charlie Akery was charged with driving while under the influence of alcohol, driving with an expired license, and making an improper turn. A jury was sworn and impaneled, and the state presented its case. After the state rested, Akery called his expert witness to the stand and began examining' him. A few minutes before 5:00 p.m., while Akery was conducting his direct examination of the witness, the trial court announced that it would be in recess until the next morning. The trial court excused the jury (and presumably the witness) for the evening. Akery moved for a mistrial, complaining that the court had told him the trial would continue until 5:00 p.m., and that the witness had plans to travel abroad. The trial court replied that the court could not set its schedule according to the convenience of witnesses and that it was 4:55 p.m., which was “close enough [to 5:00].” The trial court implicitly denied the motion for mistrial and then adjourned for the day.

The expert witness did not appear for trial the next day. Akery did not know his whereabouts, although he surmised that the witness followed through on his plans to travel to Indonesia. The state complained about not being able to cross-examine the witness. In response, the trial court announced that it would instruct the jury to disregard the witness’ testimony since he was unavailable for cross-examination. The state remarked that such a remedy would be inadequate because the expert witness’ testimony raised questions about the reliability of breath tests. The state moved for a mistrial.

When asked to respond to the state’s motion for mistrial, Akery replied that he was “not going to take a position on that” and that he only took issue with the court’s decision to instruct the jury to disregard the witness’ testimony. Akery did not reiterate his own motion for mistrial. The trial court again asked Akery for his position on whether a mistrial should be granted. Akery reiterated his argument regarding the court’s proposed jury instruction, then remarked that he would not take any position on the motion for mistrial. The trial court stated that it thought the state was entitled to a mistrial. Akery still made no objection to the granting of a mistrial, saying only that he would agree to a continuance. The trial court granted the motion for mistrial, still without any objection from Akery. Akery filed a plea in bar based on grounds of double jeopardy, which the trial court denied.

Akery appeals, arguing that jeopardy attached when the jury was sworn and impaneled, and that the court did not consider other reasonable alternatives before granting a mistrial. Therefore, he argues, the trial court erred in rejecting his plea of double jeopardy. We disagree.

Once a jury is impaneled and sworn, jeopardy attaches and a defendant is entitled to be acquitted or convicted by that jury. Pleas v. State, 268 Ga. 889, 890 (2) (495 SE2d 4) (1998). If a mistrial is declared without the defendant’s consent or over his objection, he may be retried only if there was a manifest necessity for the mistrial. Id.; Cooke v. State, 230 Ga. App. 326, 327 (496 SE2d 337) (1998). If a defendant consents to a mistrial, he may not later use the mistrial as the basis of a plea of double jeopardy. Lyde v. State, 241 Ga. 111 (243 SE2d 64) (1978). Consent to the grant of a mistrial can be express or implied. State v. Johnson, 267 Ga. 305 (477 SE2d 579) (1996).

Akery did not object at trial to the state’s motion for mistrial. Instead, he stated repeatedly that he had no position on the motion. Thus, he impliedly consented to the granting of a mistrial. See State v. Johnson, supra; see generally Cherry v. State, 230 Ga. App. 443, 445 (3) (496 SE2d 764) (1998) (acquiescence to the ruling of a trial court can be caused by silence). Indeed, Akery made his own motion for mistrial the previous afternoon when the trial court adjourned before he could finish examining the witness. A party cannot complain of a ruling to which he contributed by his own action, trial strategy, or conduct. See generally Holcomb v. State, 268 Ga. 100, 103 (2) (485 SE2d 192) (1997). The trial court did not err in denying Akery’s plea in bar on double jeopardy grounds. See generally Shuler v. State, 213 Ga. App. 790, 791 (3) (446 SE2d 225) (1994).

Decided April 8,1999.

Smith, White, Sharma & Halpern, Jonathan Goldberg, for appellant.

Joseph J. Drolet, Solicitor, Ronda K. Currie, Assistant Solicitor, for appellee.

Judgment affirmed.

Andrews and Ruffin, JJ, concur.


text:
    A99A0139.
    WHITEHEAD v. THE STATE.
    (515 SE2d 866)
   Blackburn, Presiding Judge.

Tony Whitehead appeals his conviction, following a jury trial, for robbery by sudden snatching, contending: (1) the evidence is insufficient to support the guilty verdict and (2) the trial court erred in denying his motion to sever. For the reasons set forth below, we affirm.

1. When addressing the sufficiency of the evidence to support the verdict, this Court, as a reviewing court, does not pass on the weight of the evidence. Rather, we review the sufficiency of the evidence to support the verdict. On appeal of a conviction based on a jury verdict we examine the evidence in a light most favorable to support that verdict. We resolve all conflicts in favor of the verdict. We sustain the verdict when a rational trier of fact, viewing the evidence in a light most favorable to the verdict, could find the defendant guilty beyond a reasonable doubt. See Reid v. State, 232 Ga. App. 313, 315 (2) (501 SE2d 842) (1998); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

In mid-November 1997, Whitehead and his co-defendant, Moses, were seen together in the Food Lion Grocery Store in Hawkinsville. Both men were recorded on the grocery store’s surveillance tape which showed Moses snatching a shopper’s purse containing approximately $300 from her shopping cart. The tape also revealed Whitehead standing nearby, as if on lookout. When the victim discovered her purse had been stolen, she notified the management, and the police were called.

When the police and store personnel reviewed the surveillance tape, an employee of the grocery store identified both Whitehead and Moses as the perpetrators. The clerk personally knew Whitehead and Moses and had seen them both when they were in the grocery store. A police officer also recognized Whitehead and Moses and was able to get a clear description of what they were wearing from the video tape. Armed with an identification and a physical description, the police began a search.

Less than one hour after the robbery, Whitehead and Moses were found a few blocks from the Food Lion wearing the same jackets they had been wearing inside the store; however, the jackets had been turned inside-out. Both men were arrested, and a subsequent search of their persons revealed a little less than $300 in cash between the two. The evidence against Whitehead was sufficient for a rational trier of fact to find him guilty of robbery by sudden snatching beyond a reasonable doubt. Jackson v. Virginia, supra.

2. Whitehead contends the trial court erred in denying his motion to sever his trial from that of his co-defendant. The severance of the trial of co-defendants for a non-capital offense is generally within the sound discretion of the trial court. OCGA § 17-8-4.

The defendant requesting a severance has the burden of making a clear showing of prejudice and a denial of due process in the absence of severance. Factors the trial court should consider in exercising its discretion include: (1) whether the number of defendants creates confusion of the evidence and law applicable to each defendant; (2) whether a danger exists that evidence admissible against one defendant will be considered against the other, despite cautionary instructions; and (3) whether the defenses are antagonistic.

(Citations omitted.) Loren v. State, 268 Ga. 792, 795 (2) (493 SE2d 175) (1997).

Whitehead claims that his defense was prejudiced because the surveillance video depicted his co-defendant, and not him, take the purse out of the victim’s shopping cart. The fact that the evidence as to one of two co-defendants is stronger does not demand a finding that denial of a motion to sever is an abuse of discretion, where there is evidence showing they acted together. See Strickland v. State, 212 Ga. App. 170, 172 (2) (441 SE2d 494) (1994).

The same evidence would have been presented had the two defendants been tried separately. Although the surveillance video is stronger evidence against the co-defendant, there is sufficient circumstantial evidence against Whitehead to support a conviction. Whitehead and the co-defendant both entered the store at the same time, they were seen together in the store, both men attempted to change their appearance by turning their coats inside-out immediately after the robbery, and both men were found shortly after the robbery with cash which totaled approximately the same amount stolen from the victim. Consequently, Whitehead has failed to show that he was prejudiced by the refusal to sever his trial. Chandler v. State, 213 Ga. App. 46, 47 (1) (443 SE2d 679) (1994). Therefore, the trial court did not abuse its discretion as contended.

Decided April 8,1999.

Genelle Jennings & Associates, Nicholas E. White, for appellant.

Timothy G. Vaughn, District Attorney, Russell P. Spivey, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Smith, Judge.

text:
    A99A0256.
    GREEN v. BARTON.
    (515 SE2d 864)
   Smith, Judge.

We granted Angela Green’s application for interlocutory review in this dispossessory action to determine whether the superior court correctly refused to allow Green to remain in possession of the rented premises pending her appeal of the decision of the magistrate court granting possession to Jack Barton, the landlord. We find that the superior court misinterpreted the provisions of OCGA §§ 44-7-53 (b) through 44-7-56, and we reverse.

In 1997, Green rented property from Barton consisting of acreage on which were located two mobile homes. In May 1998, Barton filed a dispossessory action against Green in the Magistrate Court of Hart County, seeking possession of the property. No allegation was made that rent was due, and no rent was demanded. Green was served and filed an answer, and a hearing was held in the magistrate court, which found against Green and issued a writ of possession.

Green filed an appeal to the superior court. Upon filing, she paid all rent due into the registry of the court, and she continued paying the rent into the court’s registry each month. A hearing was held in superior court, and at the hearing, Green requested that she be allowed to remain in possession pending a jury trial on the issues. Barton requested possession immediately pending trial on the remaining issues. The trial court took the matter under advisement and subsequently issued three orders.

In an order entered July 24, 1998, the trial court granted possession to Barton instanter. On July 31,1998, the trial court vacated the order of July 24 and allowed Green “to remain in possession of the premises pending the final outcome of the litigation so long as [she] complies with OCGA § 44-7-54.” On August 3, 1998, the trial court vacated its order of July 31, reciting that “[a]fter reconsideration and research of the record,” Barton was entitled to possession until the final outcome of the litigation. This ruling apparently was based upon the trial court’s finding that because “no motion was made by [Barton] nor was good cause shown as required by” OCGA § 44-7-56, it was not required to allow Green to remain in possession of the premises.

This was error. In the magistrate court action, no rent was demanded. Once the magistrate court ruled against her, Green appealed to the superior court and paid all rent due into the registry of the court, as required by OCGA § 44-7-56. An appeal from magistrate court to superior court is a trial de novo. Scott v. Aaron, 221 Ga. App. 254 (471 SE2d 55) (1996). It therefore triggered the provision of OCGA § 44-7-54 requiring payment of rent into court when the issue of the right of possession cannot be determined within two weeks.

The language of OCGA § 44-7-56 does appear to be ambiguous, providing that “the court may upon motion of the landlord and upon good cause shown order the tenant to pay into the registry of the court all sums found by the trial court to be due for rent in order to remain in possession of the premises.” (Emphasis supplied.) The trial court’s ruling is therefore understandable. But “[t]he cardinal rule of statutory construction is to ascertain the legislative intent and purpose in enacting the law and to construe the statute to effectuate that intent. [Cit.]” Ferguson v. Ferguson, 267 Ga. 886, 887 (1) (485 SE2d 475) (1997). The interpretation placed upon it by the trial court would put the tenant’s right to remain in possession of the premises completely within the control of the landlord. If OCGA § 44-7-56 were interpreted in this manner, a landlord could always deprive a tenant of the right to remain in possession of premises, even if the tenant paid rent into the registry of the court, simply by failing to move the court to require such payment. This could not have been intended by the legislature. We construe the permissive language of the statute to mean that unless the landlord moves the court to require payment of rent into the registry of the court, the tenant could remain in possession without such payment, pending appeal.

When the magistrate court ruled against her, Green appealed her decision to the superior court and, without order, paid all rent due into the registry of the superior court. She continued to pay rent into court each month thereafter. She was therefore entitled, under the provisions of OCGA §§ 44-7-54 and 44-7-56, to remain in possession of the premises until the litigation is concluded. See Bradshaw v. Jackson Hills Apts., 169 Ga. App. 447-448 (1) (313 SE2d 734) (1984). The trial court therefore erred in granting possession to Barton at that point in the proceedings.

Decided April 8,1999.

Thomas M. Strickland, for appellant.

Rodger E. Davison, for appellee.

Judgment reversed.

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

       Georgia law provides for the right of trial by jury in dispossessory actions. See Hill v. Levenson, 259 Ga. 395 (1) (383 SE2d 110) (1989).


text:
    A99A0295.
    WILLIAMS v. THE STATE.
    (515 SE2d 862)
   Smith, Judge.

Billy Tyrone Williams was indicted on charges of robbery, kidnapping with bodily injury, and theft by taking and was convicted of all but the theft by taking charge. His motion for new trial was denied, and he appeals. Finding no error, we affirm.

Williams’s sole enumeration of error is that the trial court erroneously failed to give his requested charge on false imprisonment as a lesser included offense of kidnapping. Construed in favor of the jury’s verdict, evidence was presented that the victim, a gas station attendant, was in the process of closing the station for the night when he was attacked by two men. He testified that he had walked outside the station, had started his truck, and was getting out of the truck when these two men came from behind and began beating him. He stated that they struck him on the head and “sort of knocked me unconscious.” He woke up in the bay area of the station with one of the men “holding me down with his foot.” Although the victim could not remember being carried from outside the station inside to the bay area, he testified that “with the shape I was in I would say it would probably have taken both of them to carry me back there.” He was again beaten inside the station, and the men took his wedding band, watch, and wallet from him. Williams later gave a statement to the police admitting to taking money from the victim’s wallet and attempting to open the station’s vault while his companion dragged the victim to the back of the station and beat him with a stick. On Williams’s behalf, John Wilson testified that he pled guilty to charges arising out of this incident and denied Williams’s involvement.

An individual commits the offense of kidnapping when he or she “abducts or steals away any person without lawful authority or warrant and holds such person against his will.” OCGA § 16-5-40 (a). “A person commits the offense of false imprisonment when, in violation of the personal liberty of another, he arrests, confines, or detains such person without legal authority.” OCGA § 16-5-41 (a). The only difference between these two offenses is the element of asportation. Sallie v. State, 216 Ga. App. 502, 503 (455 SE2d 315) (1995).

Decided April 8,1999.

John A. Rumker, for appellant.

Williams argues some evidence of lack of asportation was presented and therefore that a charge on false imprisonment should have been given. While it is well settled that a trial court should charge the jury on a lesser included offense if even slight evidence shows that the defendant committed that lesser offense, Edwards v. State, 264 Ga. 131, 133 (442 SE2d 444) (1994), we do not agree with Williams that a charge on false imprisonment was warranted here. He claims that the jury could have concluded that the victim retreated on his own power to the inside of the station to escape the beating. He argues that because the victim could not remember how he was moved from outside the station inside to the bay area, and because the victim’s normal practice was to return inside before locking it for the evening, the jury could have concluded that the victim may have walked inside without remembering that he did so. He also contends that just as the victim walked across the street to the hospital sometime after the incident without remembering how he arrived there, the jury may have been authorized to believe that the victim walked inside the station without remembering doing so.

We find no merit in Williams’s arguments. Although Williams contends that the State’s evidence of asportation was merely circumstantial, Williams’s own statement to the police provided direct evidence of this element. He stated that his companion grabbed the victim “and dragged him in the back” while he attempted to open the station’s vault. Williams clearly was a party to this action by his companion. See OCGA § 16-2-20 (b) (3). And we reject Williams’s contentions concerning the victim’s memory “as too unreasonable to warrant serious consideration.” Raysor v. State, 191 Ga. App. 422, 423 (2) (382 SE2d 162) (1989). Although the victim testified that he normally walked back into his office to turn out the lights and set the security alarm, he stated that it was not his habit to walk into the bay area. The victim’s testimony that it would have taken both men to carry him inside the station belies any argument that the victim was physically able to enter the station on his own accord shortly after he was beaten by the perpetrators.

Finally, Williams’s defense at trial was that he was not present during the incident. If believed, the testimony of the sole witness present on Williams’s behalf that another individual assisted in the incident “would have warranted an acquittal of the lesser as well as the greater offense, with the result that there was no evidentiary basis for the requested instruction. [Cit.]” Raysor, supra.

Judgment affirmed.

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

J David Miller, District Attorney, Jennifer A. Thomas, Assistant District Attorney, for appellee.


text:
    A99A03H.
    McClendon v. Elzora.
    (515 SE2d 860)
   Blackburn, Presiding Judge.

Theresa McClendon appeals the trial court’s grant of summary judgment to her uninsured motorist carrier (UMC), State Farm Mutual Automobile Insurance Company, on the basis that State Farm was never properly served with a copy of her complaint. For the reasons discussed below, we reverse.

McClendon sustained certain injuries from an automobile wreck with Enriqueta Elzora on October 13, 1995. At the time of the accident, Elzora was uninsured, and McClendon so alleged in her complaint. On October 13, 1997, the last day for filing suit within the applicable statute of limitation, McClendon, acting pro se, filed suit against Elzora. On the same date, McClendon requested service of the action on Elzora and State Farm. Elzora could not be located for service, and on March 20, 1998, the trial court granted McClendon’s motion to serve her by publication.

On October 20, 1997, McClendon’s suit was served on State Farm through Rob Slaughter, a divisional claim superintendent in one of State Farm’s satellite offices. At the time that he was served, Slaughter informed the sheriff’s representative that he did not have the authority to accept service for State Farm. There is no dispute that, for all times relevant to this action, State Farm was a foreign corporation whose designated agent for process, as registered with the Georgia Secretary of State’s office, was Laura Quinn.

On November 17, 1997, State Farm filed an answer to McClendon’s suit, claiming that her action against State Farm as UMC should be dismissed for improper service. On January 15,1998, State Farm filed a brief in support of its motion for summary judgment in which it fully argued that its registered agent, Laura Quinn, should have been served. On January 27, 1998, after retaining counsel, McClendon finally served State Farm’s registered agent.

In its order in this case, the trial court found (1) that service on Slaughter was invalid because Slaughter was not an appropriate agent of State Farm and (2) that subsequent service on Quinn 106 days after the running of the statute of limitation was invalid due to a lack of diligence. Assuming that service on Slaughter was indeed improper, the trial court’s determination that the subsequent service on Quinn was non-diligent would be correct and would provide an appropriate basis for granting State Farm’s motion for summary judgment. See U S. Fidelity &c. Co. v. Reid, 268 Ga. 432, 434 (491 SE2d 50) (1997). However, State Farm failed to carry its burden of showing that Slaughter could not be considered an appropriate agent for service of process, as discussed below, and this case must be reversed and remanded for this reason.

OCGA § 9-11-4 (d) (1) generally provides that an action may be served on a foreign corporation authorized to transact business in this state through “the president or other officer of the corporation, secretary, cashier, managing agent, or other agent thereof.”

In order for an employee to be authorized to accept service on behalf of a corporation, it is necessary that the employee’s position be such as to afford reasonable assurance that he will inform his corporate principal that such process has been served upon him. It is not necessary that the employee in question be an officer or that he be authorized to enter into contracts on behalf of the corporation. However, if the employee is not an officer or has not been expressly designated by the corporation to receive service, it is necessary that he or she occupy some position of managerial or supervisory responsibility within the organization.

(Citations and punctuation omitted.) Whatley’s Interiors v. Anderson, 176 Ga. App. 406-407 (2) (336 SE2d 326) (1985).

“When a defendant in a lawsuit challenges the sufficiency of service, he bears the burden of showing improper service.” Patterson v. Coleman, 252 Ga. 152 (311 SE2d 838) (1984). Based on the evidence of record, State Farm has not carried this burden. As State Farm admits, the only evidence in the record on this point is Slaughter’s affidavit which provides the conclusory statement: “My job responsibilities have never included acting as agent for service of process for [State Farm].” Although he may not have been State Farm’s designated agent, Slaughter, nonetheless, could be an appropriate agent for service of process if he has managerial or supervisory responsibility within State Farm and his position affords reasonable assurance that he would inform State Farm that process had been served upon him. Whatley’s Interiors, supra. As there is no evidence in the record regarding Slaughter’s job description other them his title, a question of fact remains as to whether Slaughter could be considered an appropriate agent of State Farm for service of process. Therefore, we must reverse the trial court’s grant of summary judgment on this issue and remand the case for consideration of Slaughter’s responsibilities as a divisional claims superintendent.

Judgment reversed and case remanded.

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

Decided April 8,1999.

Jones & Oliver, Charles E.’Jones, Mary Jo Oliver, for appellant.

Sharon W. Ware & Associates, Paul L. Groth, for appellee.


text:
    A99A0330.
    GRISSON v. THE STATE.
    (515 SE2d 857)
   Smith, Judge.

Ricky Grisson was indicted by a Clarke County grand jury on charges of habitual violator and two counts of failure to use a child safety restraint after he was stopped by an Athens-Clarke County police officer on August 27, 1996. He was convicted by a jury, and he appeals, asserting error in the trial court’s instructions to the jury and refusal to admit evidence of his prior acquittal on a separate charge of habitual violator. We find no error and affirm.

1. Grisson first complains that the trial court erred in its instructions to the jury regarding his asserted belief that he held a valid driver’s license despite his having received the statutorily prescribed notice of his habitual violator status. The trial court instructed the jury, “A premature issuance of a driver’s license is not adequate as a matter of law to show that' driving privileges have been properly reinstated. The law prohibits a person driving a motor vehicle after having been declared a habitual violator and ignorance of the law is no excuse.” While acknowledging the principle that “ignorance of the law is no excuse,” Grisson contends that the State engaged in conduct that constituted “actively misleading” assurances that he held a valid license. We disagree.

At trial, Grisson acknowledged that he received official notice that his driver’s license was revoked on August 19,1992, for a period of five years. He also acknowledged that he knew he had to meet the requirements of OCGA § 40-5-62 to get his license back. He testified, however, that three months later when he went to the Georgia State Patrol license office in Athens to obtain an I.D. card, he was told by Peggy Justice that he could not obtain an I.D. card because he still had a valid Georgia driver’s license. Grisson also testified that he informed Justice of his habitual violator status, but she told him “there must be some kind of mistake.” She gave him a Motor Vehicle Report and he used that to obtain a new driver’s license. Justice did not testify at trial.

Grisson also testified that he had “been through traffic stops in Oconee County” and the police had run license checks on him showing “a valid license with no warrant.” He agreed with his counsel that he had experienced traffic stops in the last six years, that his license had been checked and found valid, and that he had not been detained by the police. On cross-examination, the prosecutor questioned Gris-son regarding a traffic stop on October 6,1995, in Oconee County and asked, “Is your testimony still that every time that you’ve been stopped at a road block, that they checked your license and it came back valid?” Grisson responded, “Well, yeah, except at then.” He acknowledged that he was charged on that day with habitual violator and violation of the driver’s licensing statute, and that at least after October 1995, he knew that his license had been revoked.

The portion of the trial court’s charge at issue here was based on OCGA § 1-3-6 and Payne v. State, 209 Ga. App. 780, 781-782 (1) (434 SE2d 543) (1993). Georgia law plainly provides:

Any resident or nonresident whose driver’s license or privilege to operate a motor vehicle in this state has been suspended or revoked as provided in this chapter shall not operate a motor vehicle in this state under a license or permit issued by any other jurisdiction or otherwise during such suspension or after such revocation until the license is restored when and as permitted under this chapter.

OCGA § 40-5-65.

The premature and erroneous issuance of a Georgia driver’s license to an habitual violator is

not adequate to show as a matter of law that appellant’s driving privileges had been properly reinstated. Nor does that premature issuance refute the evidence that he drove a motor vehicle on any public highway of this state at a time when his privilege to do so was suspended and before having his license reinstated when and as permitted. . . . Administrative lapses notwithstanding, the fact that appellant had obtained a driver’s license did not give him permission to drive.

(Citations, punctuation and emphasis omitted.) Payne, supra at 782 (1). Ignorance of the laws to this effect “ ‘ “excuses no one.” ’ ” Id.; see also OCGA § 1-3-6.

Thus, one who has been properly notified that he has been declared an habitual violator by this State can thereafter lose that status and drive in Georgia only after the passage of five years and, pursuant to his application, the Department of Public Safety has determined that it will be safe to grant him the privilege of driving a motor vehicle on the public highways.

(Citation, punctuation and emphasis omitted.) Goblet v. State, 174 Ga. App. 675, 676 (1) (331 SE2d 56) (1985). See also OCGA § 40-5-1 (16).

Despite the clear state of the controlling law and his agreement that ignorance of the law is no excuse, Grisson contends that he was “actively misled” by the secretary at the State Patrol office, relying on Raley v. Ohio, 360 U. S. 423 (79 SC 1257, 3 LE2d 1344) (1959); Cox v. Louisiana, 379 U. S. 559 (85 SC 476, 13 LE2d 487) (1965); and Connelly v. State, 181 Ga. App. 261 (351 SE2d 702) (1986). But these cases are inapplicable to the facts presented here.

In Raley, supra, the chairman of a state legislative committee conducting investigative hearings assured witnesses on the record that the privilege against self-incrimination properly could be invoked during their testimony before the committee. The United States Supreme Court held that these assurances amounted to “active misleading” even though legally erroneous and barred later prosecution of the witnesses for contempt in refusing to answer. Id. at 437-439. In Cox, supra, the State acknowledged in open court that the police had given appellants permission to demonstrate in a particular location, and the United States Supreme Court held that appellants could not thereafter be prosecuted for doing so. Id. at 569-571.

This Court observed in Connelly, supra, that

a notice or decision issued by an administrative agency purporting to subject a person or persons to a penalty will be considered invalid unless it is sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to the penalty.

(Citation and punctuation omitted.) Id. at 262. We also noted the language of Raley, supra, that “ ‘(a) State may not issue commands to its citizens, under criminal sanctions, in language so vague and undefined as to afford no fair warning of what conduct might transgress them.’ [Cit.]” Id., citing Raley at 438. In reliance on these principles, we held that the language of an official notice of revocation sent by the Department of Public Safety to the appellant was insufficient to apprise him of the duration of his habitual violator status. Connelly, supra at 262.

Here, Grisson asserted that certain oral comments were made to him by a State employee who did not testify. The alleged comments were not officially recorded or published in any form. The only evidence in the record shows that the person who allegedly spoke with Grisson had no authority to issue or advise on the issuance of driver’s licenses. Such unauthorized and unrecorded comments do not rise to the level of official assurances made on the record, as contemplated by Connelly, Cox, and Raley, but instead constitute a mere “administrative lapse” as in Payne. The trial court did not err in its instruction to the jury on this issue.

2. Grisson’s second enumeration of error arises out of evidence elicited on his cross-examination by the State regarding his October 1995 traffic stop and arrest. He contends the trial court erred in refusing to allow him to present evidence that he was acquitted of the charges arising out of that arrest.

“The exclusion of evidence on grounds of relevancy is a matter which rests within the sound discretion of the trial court and such a determination will not be disturbed on appeal absent a clear abuse of discretion. [Cit.]” Causey v. State, 215 Ga. App. 723, 724 (3) (452 SE2d 564) (1994). There is no absolute prohibition of the evidentiary use of independent offenses where an acquittal was obtained, but rather a case-by-case analysis of the facts in issue and resolved in the first trial. Mims v. State, 191 Ga. App. 628, 631 (3) (382 SE2d 414) (1989). Here, the evidence was admitted for the purpose of impeaching Grisson’s testimony on direct examination as well as to show that Grisson had notice that his driver’s license was not valid, as he contended, once he was arrested and prosecuted in October 1995. The record does not clearly show that Grisson obtained an acquittal in the earlier trial on the basis of his lack of notice. But in any event, the earlier acquittal is irrelevant to Grisson’s knowledge after that time. Moreover, although evidence of the acquittal might lead to an inference that Grisson remained unaware of the status of his driver’s license, Grisson had already testified that he was aware after October 1995 that his license was revoked. No evidence was presented that Grisson’s license was ever restored. Duncan v. State, 205 Ga. App. 181, 183 (5) (421 SE2d 336) (1992) (exclusion of habeas corpus judgment ordering return of license not error when appellant subsequently notified of habitual violator status). See generally Rary v. State, 228 Ga. App. 414, 415 (2) (491 SE2d 861) (1997) (other testimony of same witness rendered proffered testimony irrelevant). The trial court did not abuse its discretion in barring this evidence.

Decided April 8,1999.

Thomas J. Killeen, for appellant.

Harry N. Gordon, District Attorney, Kirk M. Thomas, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       Grisson did not present any evidence or witnesses to corroborate his account of what State Patrol personnel allegedly told him. In rebuttal, the State called the chief license examiner at the Athens office, who testified that any Georgia resident is eligible for an I.D. card regardless of the status of his or her driver’s license. The examiner also testified that there was no requirement or reason for anyone to present a Motor Vehicle Record before obtaining an I.D. card, and that Peggy Justice, since retired, was a post secretary with no authority or permission to issue licenses or I.D. cards or to advise whether they should be issued.


text:
    A99A0466.
    WYLIE v. BLATCHLEY.
    (515 SE2d 855)
   Blackburn, Presiding Judge.

Jennifer Ruth Wylie appeals the trial court’s modification of her Iowa divorce decree pursuant to the Uniform Child Custody Jurisdiction Act (UCCJA), contending that the trial court erred in granting custody of her two daughters to her ex-husband, Robert Paul Blatchley. Specifically, Wylie argues: (1) that the trial court lacked subject matter jurisdiction because the Iowa divorce decree was never properly domesticated; (2) that the trial court lacked subject matter jurisdiction under OCGA § 19-9-43 of the UCCJA; and (3) that the evidence was insufficient to support the modification. The trial court lacked subject matter jurisdiction because the Iowa divorce decree was not properly domesticated; therefore, we vacate the judgment.

1.

Generally, subject-matter jurisdiction [for purposes of modifying a foreign custody decree] cannot be conferred unless the foreign judgment has been domesticated. Pearson v. Pearson, 263 Ga. 400, 401 (435 SE2d 40) (1993); Blue v. Blue, 243 Ga. 22 (252 SE2d 452) (1979). Pursuant to OCGA § 19-9-55 (a), the Supreme Court of Georgia held that a child custody decree was “domesticated” by filing a certified copy of the foreign decree with a clerk of the Georgia court, even though the trial court had not entered an order domesticating the foreign judgment. Roehl v. O’Keefe, 243 Ga. 696 (1) (256 SE2d 375) (1979). See also McGowen v. McGowen, 231 Ga. App. 362 (498 SE2d 574) (1998) (physical precedent only). OCGA § 19-9-55 (a) further provides that a foreign order has the same effect as a custody decree rendered in Georgia where “(a) certified and exemplified copy of a custody decree of another state” is filed in the office of the clerk of any court of Georgia. [Cit.] Thus, a properly filed “certified and exemplified copy” results in the foreign judgment being treated as a Georgia judgment pursuant to OCGA § 19-9-55.

(Emphasis in original.) Kempton v. Richards, 233 Ga. App. 238, 239 (503 SE2d 876) (1998).

A review of the record shows that Blatchley filed a petition for modification of the Iowa divorce and child custody decree and attached a certified and exemplified copy of such decree as an evidentiary exhibit thereto. There is no evidence in the record that Blatchley petitioned the trial court for domestication of the decree, nor is there evidence that Blatchley properly filed a certified and exemplified copy of the decree for the purposes of its domestication. As such, Blatchley failed to satisfy the distinct requirements of domesticating the Iowa divorce and custody decree prior to the trial court’s modification of custody rights, and without a prior domestication, the subsequent modification of custody cannot stand. Therefore, the trial court’s order modifying custody must be vacated because “ ‘[a] judgment rendered by a court without jurisdiction of the subject matter is absolutely void.’ ” Crotty v. Crotty, 219 Ga. App. 408 (465 SE2d 517) (1995).

Although Blatchley argues otherwise, his act of simply appending the divorce and custody decree as an exhibit to his petition for modification of custody does not constitute a proper filing of the decree for the purpose of its domestication. OCGA § 19-9-55. While a domestication proceeding and a custody determination may be decided in a single hearing, the two procedures are nonetheless separate and distinct. Thus, in order for domestication to be proper, a foreign decree must be filed with a clerk with the understanding that domestication is being sought. In other words, there must be some indication that the foreign decree was filed with the clerk for the purpose of its domestication, not merely that it was filed with the clerk as an exhibit to a separate action.

2. The record shows that Wylie, who was living in Iowa at the time, entered into a written agreement with Blatchley in which she consented to allow the children to live with their father in Georgia for approximately nine months. During this visitation period, Wylie remarried and moved to Florida. Approximately two months before the termination of the visitation period, Wylie removed the children from their father’s home and took them to Florida with her, precipitating the change of custody action at the heart of this case. Jurisdiction in child custody actions under the UCCJA, OCGA § 19-9-43, is generally in the state in which the custodial parent resides.

Neither the parties nor the children reside in Iowa, the state in which the final decree was granted. While the mother resides in Florida, Florida has already declined jurisdiction of the case in favor of Georgia. Moreover, the children have never resided in Florida and have no significant ties to that state.

Decided April 8,1999.

McCorkle, Pedigo & Johnson, Carl S. Pedigo, Jr., Kenneth P. Johnson, for appellant.

Howard & Whatley, Susan B. Paul, Warren E. Ratchford, for appellee.

The children and Blatchley do have a significant connection with Georgia. Prior to their removal to Florida by their mother, the children had been living in Georgia for approximately seven months, they had matriculated in Georgia schools, and they appeared to be thriving under their father’s care. As such, the Georgia court could assume jurisdiction over this case pursuant to OCGA § 19-9-43 (a) (2) because substantial evidence is available in Georgia bearing on the children’s past and future activities, relationships, and care. In addition, it also appears that the Georgia court could assume jurisdiction over this case pursuant to OCGA § 19-9-43 (a) (4), as no other state has jurisdiction.

Judgment vacated and case remanded.

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


text:
    A99A0476.
    WORTHY v. THE STATE.
    (515 SE2d 869)
   Blackburn, Presiding Judge.

Ulysses Worthy appeals his convictions, following a jury trial, of armed robbery and possession of a firearm by a convicted felon. Worthy contends that the trial court erred (1) by failing to grant a mistrial after the prosecutor made improper comments during opening statements; (2) by failing to charge on the lesser included offense of robbery; and (3) that the sentencing requirements of OCGA § 17-10-7 are unconstitutional. For the reasons set forth below, we affirm Worthy’s convictions.

1. During the State’s opening statement, the prosecutor said:

[T]hat is what we expect the evidence to show. And I would anticipate that you will be able to hear from these witnesses tomorrow and that at the close of all of the evidence, both our evidence and any evidence that Mr. Worthy cares to put up, or has to put up, if he chooses to do that, that I’ll have an opportunity to come back to you and talk to you again. And at that point we’ll ask you to find, to reach a verdict, and the word verdict means simply to speak the truth, and that the truth of this case, based on all of the evidence, is that Mr. Worthy is guilty of the offense of armed robbery.

After the prosecutor’s. opening statement, defense counsel reserved the right to make an opening statement and then approached the bench for an off-the-record discussion. At the conclusion of this discussion, and out of the hearing of the jury, defense counsel made a motion for a mistrial contending that the State inappropriately commented on Worthy’s decision whether to put up any evidence, specifically whether he would testify. The prosecutor stated that her comment was intended to convey that the jury should listen to all the evidence including any evidence the defendant might put up. She argued that her comments implied that the defendant had a choice, not a duty, to present evidence. The trial court denied the motion for mistrial but gave the jury curative instructions regarding presumption of innocence and burden of proof.

To reverse for improper comment by the prosecutor, we must find one of two things: that the prosecutor’s manifest intention was to comment upon the accused’s failure to testify or that the remark was of such a character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify. . . . We cannot find that the prosecutor manifestly intended to comment on the defendants’ failure to testify, if some other explanation for his remark is equally plausible. [Additionally,] a prosecutor’s comment on the uncontradicted state of the evidence would not necessarily be construed by the jury as a comment on the defendant’s failure to testify.

(Punctuation omitted.) Ranger v. State, 249 Ga. 315, 319 (3) (290 SE2d 63) (1982).

Given the indirect character of the comment at issue, the prosecutor’s explanation for the remark, and the fact that it was given in the opening statement at a time prior to the presentation of any evidence in the case, we conclude under the Ranger v. State test that there was no manifest intent by the prosecutor to comment on the defendant’s failure to testify, and that the jury would not necessarily take it as such an improper comment.

Havron v. State, 234 Ga. App. 413, 415 (2) (506 SE2d 421) (1998) (mistrial properly denied where prosecutor commented, in opening statement “ ‘(Y)ou’ve got to look at it yourself and say do I believe (the victim) or do I believe the Defendant’ ”). Therefore, the trial court did not abuse its discretion in failing to grant Worthy’s motion for mistrial. See Martin v. State, 193 Ga. App. 581, 587 (4) (388 SE2d 420) (1989) (trial court’s ruling on motion for mistrial based upon alleged improper argument will not be reversed unless manifestly abused).

2. In his second enumeration of error, Worthy contends that the trial court erred by failing to charge the jury on his sole defense of the lesser included offense of robbery. Worthy was indicted for armed robbery in that, with the intent to commit theft, he took money from Saleem Ajani “by the use of a handgun, the same being an offensive weapon.” Worthy’s defense at trial was that, while he did commit the theft, because the gun was not loaded, it was not a weapon and he should not be found guilty of armed robbery. Worthy argues that he did not intend to commit armed robbery, but just robbery.

OCGA § 16-8-41 (a) provides, in pertinent part, that “[a] person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person ... by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon.” This statute does not require the use of a gun containing ammunition. In fact, the State does not have to prove that the gun was loaded. See Moody v. State, 216 Ga. 192, 193 (2) (115 SE2d 526) (1960). Additionally, the statute does not require that the defendant had the intent to commit armed robbery, but merely that the defendant had the intent to commit theft and did so with an offensive weapon “or [any] device having the appearance of such weapon.”

A written request to charge a lesser included offense must always be given if there is any evidence that the defendant is guilty of the lesser included offense. However, where the state’s evidence establishes all of the elements of an offense .and there is no evidence raising the lesser offense, there is no error in failing to give a charge on the lesser offense.

(Citation, punctuation and emphasis omitted.) Fleming v. State, 233 Ga. App. 483, 484-485 (2) (504 SE2d 542) (1998). Here, the State’s evidence established all the elements of armed robbery, including Worthy’s confession on the witness stand that he committed the theft with the use of a gun, albeit unloaded. The evidence did not support a charge on robbery, and the trial court did not err in failing to give the defendant’s request to charge thereon.

3. By several enumerations of error, Worthy contends that OCGA § 17-10-7 violates his constitutional rights by allowing grossly disproportionate sentencing, violates due process by not allowing mitigating evidence, and violates equal protection. These issues have been decided adversely to Worthy in Ortiz v. State, 266 Ga. 752, 753 (2) (470 SE2d 874) (1996).

Decided April 8,1999

Cynthia A. Price, for appellant.

Ulysses Worthy, pro se.

J. Tom Morgan, District Attorney, for appellee.

Judgment affirmed.

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


text:
    A99A0553.
    CALDWELL v. THE STATE.
    (515 SE2d 868)
   Blackburn, Presiding Judge.

Defendant Thomas Caldwell appeals his conviction, following a jury trial, of aggravated assault. Caldwell contends that the trial court erred (1) by denying his motion for directed verdict of acquittal, (2) by allowing the admission of hearsay evidence, and (3) by failing to grant his motion for mistrial after his character was injected into evidence. For the reasons set forth below, we affirm.

1. “The standard of review for the denial of a motion for a directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction.” (Punctuation omitted.) Cantrell v. State, 230 Ga. App. 693, 694-695 (1) (498 SE2d 90) (1998).

A motion for a directed verdict in a criminal case should only be granted when there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law. Moreover, on appeal the evidence must be viewed in the light most favorable to the verdict, [Caldwell] no longer enjoys the presumption of innocence, and the appellate court determines the sufficiency, not the weight of the evidence, and does not judge the credibility of the witnesses. Further, we do not speculate which evidence the jury chose to believe or disbelieve.

(Citations omitted.) White v. State, 233 Ga. App. 24, 25-26 (503 SE2d 26) (1998).

So viewing the evidence, it reveals that Caldwell’s wife told the investigating officers that she and Caldwell had a fight during which Caldwell punched her, knocked her down, and fired a gun in her general direction. The investigating officers found spent shell casings at the side of the house eight or nine feet from the area where the victim was pushed and fell to the ground. The officers testified that Caldwell lacked self-control, was glassy eyed, unsteady on his feet, and had a strong odor of alcoholic beverage on his person.

A rational trier of fact could have found Caldwell guilty beyond a reasonable doubt of aggravated assault based on this evidence. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Caldwell contends that the trial court erred by allowing the investigating officers to testify as to what the victim told them on the night of the incident. He contends that such testimony was hearsay. At trial, the victim testified and either denied the statements that the officers attributed to her or stated that she did not remember what she told them.

In Gibbons v. State, 248 Ga. 858, 862 (286 SE2d 717) (1982), the Supreme Court of Georgia determined that “a prior inconsistent statement of a witness who takes the stand and is subject to cross-examination is admissible as substantive evidence, and is not limited in value only to impeachment purposes.” Therefore, because the victim testified at trial and was subject to cross-examination, and claimed no privilege concerning such testimony, her prior inconsistent statement was admissible as substantive evidence. The trial court did not err in allowing the officers to testify as to the witness’s prior inconsistent statement.

3. Caldwell contends that the trial court erred in denying his motion for a mistrial when the State improperly injected his character into evidence. The record reveals that in response to the State’s inquiry regarding whether the victim indicated that she was afraid of Caldwell, the officer responded: “She stated that she was afraid of Mr. Caldwell and that — she advised me that they had had previous complaints.” The prosecutor did not ask any questions regarding the previous complaints but continued to ask about the victim’s fear and the specific events surrounding the incident. Only after the prosecutor had asked eight more questions, unrelated to “previous complaints,” did Caldwell’s attorney move for a mistrial on the grounds that Caldwell’s character had improperly been placed into evidence.* Assuming arguendo that the officer’s statement impacted negatively on Caldwell’s character, the witness’s testimony was not responsive to the prosecutor’s question, and there is no indication that the examination was contrived. “When a witness gives a non-responsive answer to a question impacting negatively on the defendant’s character, this does not place the defendant’s character in issue under OCGA § 24-9-20 (b).” (Punctuation omitted.) Manker v. State, 223 Ga. App. 3, 5 (2) (476 SE2d 785) (1996). See also Williams v. State, 269 Ga. 827, 829 (5) (504 SE2d 441) (1998). Following the trial court’s ruling, Caldwell did not request curative instructions. The trial court did not err in denying Caldwell’s motion for mistrial.

Decided April 8,1999

James A. Satcher, Jr., for appellant.

Tambra R Colston, District Attorney, Martha P. Jacobs, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       We do not reach whether Caldwell’s motion for mistrial was sufficiently contemporaneous with the evidence to preserve the issue. See Smith v. State, 180 Ga. App. 422, 423-424 (1) (349 SE2d 279) (1986).


text:
    A99A0614.
    COALSON v. THE STATE.
    (515 SE2d 882)
   Blackburn, Presiding Judge.

Defendant Edward Lee Coalson appeals his convictions, following a jury trial, of three counts of aggravated child molestation and three counts of child molestation. Coalson contends that the trial court erred in denying his motion for directed verdict with regard to the two counts of child molestation. We affirm.

The standard of review for the denial of a motion for a directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction. Cantrell v. State, 230 Ga. App. 693, 694-695 (498 SE2d 90) (1998). “A motion for a directed verdict in a criminal case should only be granted when there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law. Moreover, on appeal the evidence must be viewed in the light most favorable to the verdict, [Coalson] no longer enjoy[s] the presumption of innocence, and the appellate court determines the sufficiency, not the weight of the evidence, and does not judge the credibility of the witnesses. Further, we do not speculate which evidence the jury chose to believe or disbelieve.”

Watson v. State, 235 Ga. App. 381, 383-384 (509 SE2d 87) (1998). See also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided April 8,1999.

Joe Frank Harris, Jr. & Associates, William S. Helton, for appellant.

T. Joseph Campbell, District Attorney, Sharon M. Fox, Assistant District Attorney, for appellee.

In the present case, Coalson contends that insufficient evidence was presented to establish the child molestation as charged in Counts 3 and 4 of the indictment. Count 3 charged that Coalson placed his hand against the penis of the victim, a male child under the age of 16 years, and Count 4 charged that Coalson placed his penis against the penis of the same victim. Viewing the evidence relevant to Counts 3 and 4 of the indictment, it reveals that, during an interview of the seven-year-old victim, the victim stated that Coalson touched his “ding ding,” that Coalson sucked his “ding ding,” and that he touched it with his “ding ding.” Additionally, the victim’s statement to the social worker was consistent with what he told his mother.

There is no requirement that the testimony of the victim of child molestation be corroborated. See Padgett v. State, 175 Ga. App. 818 (334 SE2d 883) (1985). Nevertheless, the testimony of the victim in this case was corroborated in several material respects. From all of the evidence, the jury was authorized to find that [Coalson] had committed an immoral or indecent act to the person of the child. See generally Chapman v. State, 170 Ga. App. 779 (1) (318 SE2d 213) (1984). The evidence would also clearly authorize a finding that [Coalson] had done so with the intent to arouse his sexual desires. See generally Bentley v. State, 179 Ga. App. 287 (1) (346 SE2d 98) (1986).

Adams v. State, 186 Ga. App. 599 (1) (367 SE2d 871) (1988).

The trial court did not err in denying Coalson’s motion for directed verdict with regard to Counts 3 and 4 of the indictment.

Judgment affirmed.

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