text:
    A96A1697.
    JESSUP v. THE STATE.
    (480 SE2d 232)
   Blackburn, Judge.

Larry Gray Jessup was indicted by a Lamar County grand jury for rape and kidnapping with bodily injury. The jury convicted him of kidnapping with bodily injury, and he was sentenced to life in prison. Jessup contests the sufficiency of the evidence supporting the verdict, arguing that because his victim voluntarily accompanied him, his conviction should be reversed.

The facts show that Jessup and the victim were husband and wife. The victim testified that on May 27, 1994, Jessup called and told her to meet him to go look at a house for rent. The victim, along with the couple’s infant son, accompanied Jessup to the house, but upon entering, observed that “someone was still living in this house.” The victim thereupon attempted to leave with the child, but testified that at that point, Jessup pushed her back into the house, pulled a small knife on her, and kicked her in the groin.

Over the next approximately 24 hours, Jessup held the victim in the house by threatening her with a shotgun. He forced her to move the couples’ vehicles out of sight, then took her keys and money from her. Thinking she would only be gone a few hours, the victim had not brought provisions for the baby, but unbeknownst to the victim, Jessup had brought bags of groceries into the house sufficient to last several days. The victim testified that sometime during the night of May 27, Jessup beat her, giving her a black eye. At one point, Jessup chained the victim to him with a dog leash to ensure that she could not leave. The victim testified, “I knew he wasn’t going to let us go. He had made that perfectly clear, that we weren’t going anywhere.”

After noon on May 28, Jessup directed the victim and his son outside and into a rental car. Because Jessup’s driver’s license was suspended, and because she testified that he threatened to kill her, the victim drove the three of them to Anderson, South Carolina. She complied with Jessup’s orders to register them for a motel room, and they spent the night at the motel. At one point, Jessup sent the victim out for food but kept their son with him in the motel room to guarantee her return. While out, the victim managed to telephone her mother in Georgia. Local city police stopped the vehicle later that day as Jessup, the victim, and the child were leaving the motel parking lot.

Jessup testified in his own defense, denied the victim’s rendition of facts, and testified primarily that the victim voluntarily accompanied him to South Carolina. He maintains that his conviction must be reversed, as the victim’s consent negates the kidnapping.

“On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)]. ... As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld. The testimony of a single witness is generally sufficient to establish a fact.” (Citations and punctuation omitted.) Ferguson v. State, 221 Ga. App. 415, 419 (471 SE2d 528) (1996).

Applying this standard to the facts of this case, the jury was authorized to find that Jessup kidnapped the victim. “A person commits the offense of kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such person against his will.” OCGA § 16-5-40 (a). Although the victim may have initially consented to go to the rental house, she testified that she did not consent to stay there or to go to South Carolina, but she was forced to do these things by Jessup against her will. Therefore, the jury could find that she was kidnapped. See Williams v. State, 211 Ga. App. 393, 394 (439 SE2d 11) (1993) (kidnapping occurred even though victim initially consented to accompany defendants because victim did not later agree to go into a remote area of woods where defendants then attacked and abandoned victim); see also Peavy v. State, 159 Ga. App. 280, 282 (283 SE2d 346) (1981) (kidnapping occurred even though victim willingly entered defendant’s van, because the defendant refused the victim’s request to stop the van and let her out).

With respect to the bodily harm portion of the kidnapping conviction, Jessup was sentenced to life for this offense. OCGA § 16-5-40 provides in section (b) that “if the person kidnapped shall have received bodily injury, the person convicted shall be punished by life imprisonment or by death.” Jessup argues that the judge failed to properly instruct the jury on bodily injury, but as Jessup neither requested a different charge from the one given nor objected to the charge, any such argument is waived. See Davis v. State, 209 Ga. App. 187, 189 (4) (433 SE2d 366) (1993). Jessup has further waived this argument by even failing to enumerate the charge as error. See Cook v. State, 221 Ga. App. 831, 834 (5) (472 SE2d 686) (1996). As regards his conviction for bodily injury, Jessup argues that because there is no evidence that he inflicted any bodily harm upon the victim after the commencement of the alleged kidnapping to South Carolina, bodily harm in connection with the kidnapping was not shown.

Although Jessup does not raise the argument, the indictment in this case charges that on May 28, 1994, Jessup unlawfully abducted the victim without lawful authority and held her against her will, causing her to receive bodily injury. Though the conviction is based in part on events which occurred on May 27, there is no fatal variance between the acts alleged in the indictment and the offense for which Jessup was convicted. “Where the exact date is not stated as a material allegation of the time of commission of the offense in the indictment, it may be proved as of any time within the statute of limitations.” (Punctuation omitted.) Turner v. State, 202 Ga. App. 799, 800 (415 SE2d 524) (1992); see also Martin v. State, 196 Ga. App. 145, 146 (395 SE2d 391) (1990).

Assuming without deciding that the bodily injury inflicted upon a kidnapping victim must occur after the commencement of the kidnapping itself, as Jessup contends, the jury was authorized to find from the evidence that Jessup’s kidnapping of the victim began on May 27, when he forced the victim into the house after she attempted to leave. See Green v. State, 193 Ga. App. 894, 896 (389 SE2d 358) (1989) (“the distance that a victim is carried is not material; any carrying away is sufficient”); see also Williams, supra. While holding the victim against her will, Jessup kicked and beat her, causing bruising about the victim’s body as well as a black eye and knots on her head. Viewing the evidence in the light most favorable to support the verdict, a rational trier of fact could reasonably have found Jessup guilty of kidnapping with bodily injury beyond a reasonable doubt. Jackson v. Virginia, supra. Accordingly, Jessup’s conviction is affirmed.

Decided December 31, 1996.

Martin & Martin, Harold E. Martin, for appellant.

Tommy K. Floyd, District Attorney, Gail M. Travillian, Assistant District Attorney, for appellee.

Judgment affirmed.

Beasley, C. J., and Birdsong, P. J., concur.


source: Caselaw Access Project

author: Blackburn, Judge.

license: Public Domain

text:
    A96A2035.
    BURGER v. KRUEGER.
    (480 SE2d 230)
   Blackburn, Judge.

Andrew Burger and Rachel Sue Krueger were divorced in July 1994. In the final decree, Burger was awarded primary physical custody of the parties’ minor child. In 1995, Krueger filed for modification of child custody and support. Finding that there had been a material change in the circumstances of the parties which materially affected the welfare of the minor child, the trial court changed primary physical custody of the child from Burger to Krueger. Burger appeals the sufficiency of the evidence supporting the trial court’s decision.

“In determining whether a material change of condition has occurred, the trial court is vested with a discretion which will not be controlled by this court absent abuse. This court will affirm the trial court’s decision if there is any reasonable evidence to support it.” (Citation and punctuation omitted.) Hayes v. Hayes, 199 Ga. App. 132, 133 (404 SE2d 276) (1991). Despite the fact that Burger appeals the sufficiency of the evidence, the review which he seeks cannot be conducted because neither a trial transcript nor a statutorily authorized substitute was provided to review. “The burden is on the party alleging error to show it affirmatively by the record. When the burden is not met, the judgment complained of is assumed to be correct and must be affirmed.” (Punctuation omitted.) Mike’s Garage Door Co. v. Dews, 220 Ga. App. 648, 649 (469 SE2d 855) (1996).

The trial court did make findings of fact in an addendum to its order changing custody, but this addendum cannot be considered as a substitute for a trial transcript because it was not prepared in accordance with OCGA § 5-6-41. The court prepared this addendum at Burger’s request, presumably because the trial was not recorded. Without a transcript of the proceedings below, this Court will assume that the trial court’s findings of fact are supported by the evidence. Johnson v. Johnson, 242 Ga. 339, 340 (249 SE2d 22) (1978). Review is therefore limited to determining if, based on the facts it found, the trial court abused its discretion in changing custody.

The court found that Burger, the custodial parent, began seeing a married woman after the parties were divorced. This woman, a neighbor, would sneak into Burger’s home in the middle of the night while the child was present in the home. The woman was later divorced, and has since moved in with Burger and the child. The court did not abuse its discretion in changing custody on this ground, as changes of custody have been upheld where a parent cohabits with another individual without benefit of marriage while the child is living with the parent. See Dixon v. Dixon, 183 Ga. App. 756 (360 SE2d 8) (1987); see also Gibson v. Pierce, 176 Ga. App. 287 (335 SE2d 658) (1985).

The trial court also found that when the parties divorced and Burger was awarded custody of the child, Burger’s mother was living with him, assisting him with care of the child. Since that time, Burger has been evicted from his apartment for non-payment of rent, and his mother no longer lives with him to assist in child care. The trial court correctly found that these facts constitute a material change in the circumstances of the parties which materially affect the welfare of the minor child.

Finally, the trial court cited several examples of the breakdown in the parties’ abilities to confer on the best interests of the child. Although she has joint legal custody of the child, Burger removed Krueger’s name from the list of approved persons who could pick the child up from day care, and substituted his girl friend’s name in Krueger’s place. Burger changed the child’s pediatrician without informing Krueger, screamed obscenities at her in the day care center parking lot in the presence of the child, and failed to keep his home in the condition recommended by the child’s pediatrician for the child’s allergic condition.

Having reviewed all of the trial court’s findings of fact, no abuse of discretion occurred in changing custody from Burger to Krueger. In this case, as in any appeal of a change of custody decision, this Court is bound by the abuse of discretion standard, which specifically and intentionally vests discretion solely in the trial court and not in the appellate court. There can be no “retrial” of the case on appeal, as “[e]xperience has taught that the trial courts of this state are in a far better position to rule wisely in these matters with the parties and child before the court than we can do on appeal with only a written record before us.” Fowler v. Fowler, 231 Ga. 572, 573 (203 SE2d 235) (1974). Accordingly, having found no abuse of discretion, the trial court’s decision is affirmed.

Judgment affirmed.

Beasley, C. J., and Birdsong, P. J., concur.

Decided December 31, 1996.

Lee Sexton & Associates, Robert L. Ferguson, for appellant.

Cowen & Cowen, Linda S. Cowen, Martin L. Cowen III, for appellee.


text:
    A96A2442.
    JORDAN v. THE STATE.
    (480 SE2d 228)
   Blackburn, Judge.

Willie James Jordan appeals his conviction following a jury trial of theft by taking, OCGA § 16-8-2, challenging the sufficiency of the evidence. After reviewing the evidence in a light most favorable to the verdict, the evidence is sufficient, and the judgment is affirmed. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

A review of the evidence shows that on the subject date, a plainclothes police officer saw two men stooping inside a 1981 Pontiac Grand Prix parked in a movie theater lot at night. A third man, later identified as Jordan, was standing close to the car, looking around nervously. When the first two men drove off in another car, Jordan entered the Grand Prix and drove away behind them. The officer and his partner followed Jordan down Interstate 20 and onto surface streets. When he discovered someone was pursuing him, Jordan ran the car into a fence and fled on foot into a residential area. The officer chased Jordan between houses until he finally caught the sweating, heavily-breathing defendant. The owner of the Pontiac Jordan had been driving identified it as his and confirmed it had been stolen.

Once caught, Jordan claimed he had just come from his nearby home and was chasing someone himself. Jordan’s alibi witnesses — his grandmother and an uncle by marriage — testified Jordan was at home all night and had taken a shower just before he heard a noise and ran out of the house, thinking someone was breaking into his own car. The uncle, however, testified Jordan was wearing no shirt, no shoes, and dark shorts when he left the house. The officer found Jordan wearing shoes and a light-colored shirt and pants. The policeman was positive Jordan was the same man he saw in the movie theater parking lot.

While there was additional evidence which supports the verdict, it is unnecessary to outline it all here, as the outlined evidence was sufficient to allow a fair and impartial jury to find Jordan guilty beyond a reasonable doubt of theft by taking.

“While the defendant presented an alibi defense and questioned whether the officer’s identification testimony was reliable, it is the task of the jury to weigh the evidence, determine credibility, and resolve conflicts in the testimony. This Court does not reweigh the evidence, but only determines whether it is legally sufficient.” Seats v. State, 210 Ga. App. 74, 75 (1) (435 SE2d 286) (1993); see also Slaughter v. State, 217 Ga. App. 449, 450 (1) (459 SE2d 168) (1995) (jury authorized to reject alibi evidence). The value of the vehicle was not a material element of the offense, Stancell v. State, 146 Ga. App. 773 (2) (247 SE2d 587) (1978), but proof that the item stolen was an automobile is sufficient to support Jordan’s felony sentence for the offense of theft by taking. See OCGA § 16-8-12 (a) (4) (A).

Decided December 31, 1996.

James D. Michael, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, James M. McDaniel, Assistant District Attorneys, for appellee.

Judgment affirmed.

Beasley, C. J, and Birdsong, P. J, concur.


text:
    A96A2294.
    MEYER v. THE STATE.
    (480 SE2d 234)
   Blackburn, Judge.

We granted this discretionary appeal to clarify the appropriate use of OCGA § 40-5-67.1 (b) (3), which is the implied consent warning applicable to “commercial motor vehicle driver suspects.” Gary Michael Meyer, who held a Tennessee commercial driver’s license, was arrested on suspicion of DUI while driving a private passenger vehicle. The current version of § 40-5-67.1 was in effect at the time of this incident, and the arresting officer read Meyer the implied consent warning found in subsection (b) (2) of that statute, intended for “suspects age 18 or over.” Meyer filed a motion in limine, arguing that because he held only a commercial driver’s license, the officer should have read him the warning applicable to commercial motor vehicle driver suspects found in subsection (b) (3). The trial court rejected that argument, and we affirm.

Pursuant to State v. Martin, 266 Ga. 244, 245 (1) (466 SE2d 216) (1996), the officer was required to select and read to Meyer the appropriate warning found in OCGA § 40-5-67.1 (b). Because Meyer was driving a private passenger car and not a commercial motor vehicle at the time of his arrest, subsection (b) (2) was appropriate.

First, we note the pertinent caption of the subsection (b) (3) warning: “Implied consent notice for commercial motor vehicle driver suspects.” That caption shows the legislature’s purpose that this warning be used for persons stopped while driving commercial motor vehicles. See Copher v. Mackey, 220 Ga. App. 43, 45 (4) (467 SE2d 362) (1996) (caption of statute provides evidence of legislative intent). Furthermore, the commercial motor vehicle implied consent warning states penalties for refusal that are applicable only to drivers of commercial vehicles who refuse to be tested. See OCGA § 40-5-151 (a) (1) (A), (2) (driver of commercial vehicle who refuses blood-alcohol test or who is convicted of driving a commercial vehicle while having a blood-alcohol content of .04 percent or more will be disqualified from driving such a vehicle for at least one year); OCGA § 40-5-152 (b) (driver of commercial vehicle who refuses test must be placed “out of service” for at least 24 hours). Reading these statutes together, it is clear the legislature intended for the warning contained in § 40-5-67.1 (b) (3) to be read to drivers of commercial vehicles, not to drivers of private vehicles who happen to hold commercial driver’s licenses. See Ga. Marble Co. v. Whitlock, 260 Ga. 350, 354 (1) (392 SE2d 881) (1990) (statutes on same subject must be read together to ascertain their purpose). As the parties do not dispute that Meyer was over the age of 18 and was driving a private, noncommercial vehicle, Meyer was properly warned under subsection (b) (2). Therefore, the trial court did not err by rejecting his argument that he was read the wrong implied consent warning.

Decided January 2, 1997.

James W. Smith, for appellant.

Kenneth W. Mauldin, Solicitor, Ethelyn N. Simpson, Assistant Solicitor, for appellee.

Judgment affirmed.

Birdsong, P. J, and Beasley, J., concur.


text:
    A96A2517.
    STEPHENS v. THE STATE.
    (480 SE2d 235)
   Blackburn, Judge.

Donald Stephens appeals his convictions of aggravated child molestation, incest, statutory rape, rape, cruelty to children, aggravated sexual battery and child molestation. He enumerates as error the trial court’s denial of his motion for funds to hire an expert witness and his motion for new trial based on ineffective assistance of counsel. He further contends that he was compelled to testify against himself in violation of the U. S. Constitution.

1. Stephens’ contention, that the trial court erred in denying his motion for funds to hire an expert witness to rebut the State’s use of DNA evidence, is not supported by the record. The standard of review is whether the trial court abused its discretion in denying Stephens’ motions.

The record on appeal does not contain a copy of the motion for funds to hire an expert, the transcript of the hearing on the motion, or the order denying the motion. Thus, this Court cannot determine what evidence was before the trial court when it denied the motion. Accordingly, this Court must affirm the trial court’s ruling. Burnette v. McCarter, 211 Ga. App. 781, 783 (3) (440 SE2d 488) (1994) (appeal dependent upon consideration of evidence heard by the trial court will, absent a transcript, result in affirmance).

2. A DNA test had showed a 99.76 percent probability that Stephens was the father of Justin Tucker, the infant son of Stephens’ stepdaughter, whom Stephens was accused of raping and molesting. Stephens requested that a second DNA test be performed at State expense.

The prosecution agreed to perform the requested test, on the condition that Stephens plead guilty if the requested test established his paternity with at least a 90 percent degree of probability. The parties reduced the agreement to writing, and the document was prepared by Stephens’ attorney. The written agreement provided that (1) Stephens would agree to plead guilty if the second test established a 90 percent or greater probability of Stephens’ paternity, (2) the second test would be admissible at trial, and (3) the written agreement would also be admissible at trial.

The second test showed a 99.69 percent probability that Stephens was the father of Justin Tucker. Stephens however refused to plead guilty and proceeded to trial contrary to the agreement. At trial, the results of the second test and the written agreement were admitted without objection. On appeal, Stephens argues that the State, by conditioning the second test on his agreement to plead guilty and to allow the agreement to be used at trial, compelled him to testify against himself in violation of his rights under the U. S. Constitution. Stephens did not object to the admission of the agreement or the second test at trial, and thus waived any objection thereto. See Hunter v. State, 202 Ga. App. 195, 197 (3) (413 SE2d 526) (1991).

3. Stephens also argues that the trial court erred in denying his motion for new trial based on ineffective assistance of counsel on two grounds. Stephens claims he failed to receive effective counsel because his trial attorney failed to timely subpoena his wife, Vera Mae Stephens, as a witness, and did not strike a juror who knew Stephens.

A defendant claiming ineffective assistance of counsel must show (1) that his attorney’s representation in specified instances fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Hudson v. State, 218 Ga. App. 671, 672 (1) (462 SE2d 775) (1995). The trial court found that Stephens satisfied neither of these elements and denied his motion for new 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).

At the motion for new trial, Stephens’ attorney testified that he spoke with the prospective witness, Vera Mae Stephens, several times prior to trial and did not believe her testimony would be of benefit to Stephens. Ms. Stephens was Stephens’ wife and the mother of one of the victims. She had also been named in the indictment as a co-defendant with respect to the other victim, although she was not tried with Stephens. The record shows that the only testimony Ms. Stephens might have provided was that she had no knowledge of Stephens’ alleged actions and that the victims never reported the crimes to her. However, Stephens’ trial counsel indicated that he was not certain that, if called, she would in fact cooperate or provide such testimony.

Moreover, Ms. Stephens’ daughter herself admitted at trial that she never told her mother about Stephens’ acts and that no one ever discovered her relationship with Stephens. The testimony of the other victim also showed that she had not reported Stephens’ acts to Ms. Stephens. Thus, Ms. Stephens’ testimony would have been essentially duplicative of the evidence adduced at trial and would have added nothing for the jury’s consideration.

Stephens’ trial attorney testified that Ms. Stephens did not think or express herself clearly and would not have made a helpful witness. He also testified that, although he had not decided to call Ms. Stephens as a witness, he did attempt to have her served with a subpoena prior to trial, but that it appeared she was evading service. While the attorney’s testimony suggested that he attempted to subpoena Ms. Stephens in part to avoid a claim of ineffective assistance of counsel, inasmuch as there was a legitimate basis for not calling Ms. Stephens as a witness, such decision was a matter of trial strategy.

Stephens’ contention that he received ineffective assistance of counsel because his trial counsel failed to strike a juror who knew him is without merit. The evidence shows that the attorney did not strike the juror because he was saving his final strike for another prospective juror whom the attorney felt it was more important to strike. The attorney also testified that Stephens did not seem to have a problem with the first juror and did not request that she be removed. The attorney’s decision to strike one juror as opposed to another was a matter of strategy. The trial court’s finding that the attorney’s actions did not constitute ineffective assistance of counsel was not clearly erroneous. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

Decided January 2, 1997.

John F. McClellan, Jr., for appellant.

Stephen F. Lanier, District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J, and Beasley, J., concur.


author: Andrews, Chief Judge.

text:
    A95A0465, A95A0466.
    UNIROYAL GOODRICH TIRE COMPANY et al. v. FORD et al. FORD et al. v. UNIROYAL GOODRICH TIRE COMPANY et al. UNIROYAL GOODRICH TIRE COMPANY et al. v. FORD et al. FORD et al. v. UNIROYAL TIRE COMPANY et al.
    A95A0467.
    A95A0468, A95A0469.
    A95A0470.
    (481 SE2d 6)
   Andrews, Chief Judge.

In Uniroyal Goodrich Tire Co. v. Ford, 218 Ga. App. 248 (461 SE2d 877) (1995), we reversed on various grounds a judgment in favor of Franklin Ford III (Ford) for compensatory and punitive damages and a judgment in favor of Ford’s parents for compensatory damages. On review pursuant to the writ of certiorari in Ford v. Uniroyal Goodrich Tire Co., 267 Ga. 226 (476 SE2d 565) (1996), the Supreme Court partially reversed and partially affirmed our prior decision.

In partially reversing our decision, the Supreme Court held that “OCGA § 9-11-42 (a) applies to simultaneous proceedings before separate juries in the same courtroom . . . [and] the trial court committed reversible error in ordering a dual jury trial without the consent of the parties. . . .” In partially affirming our decision, the Supreme Court affirmed our majority holding that instructing the jury in Ford’s case that 75 percent of punitive damages sought would be distributed to the State was reversible error. Accordingly, to the extent our prior decision was reversed by the Supreme Court, it is vacated, and the judgment of the Supreme Court is made the judgment of this Court.

The Supreme Court did not review any other aspect of our prior decision. Thus, the Supreme Court reversed the judgments on the grounds it addressed and let stand our prior decision on other grounds it did not address, including our reversal of the judgments on other grounds in Case Nos. A95A0465, A95A0466, A95A0468, and A95A0469 and our dismissal of the cross-appeals in Case Nos. A95A0467 and A95A0470.

Decided January 3, 1997.

Love & Willingham, Daryll Love, Allen S. Willingham, Robert P. Monyak, Alston & Bird, G. Conley Ingram, R. Wayne Thorpe, Cynthia L. Counts, for Uniroyal Goodrich Tire Company et al.

Smolar, Roseman, Brantley & Seifter, Yehuda Smolar, Barry L. Roseman, G. Grant Brantley, James I. Seifter, Thomas A. Rice, William B. Herndon, for Ford et al.

Barnes, Browning, Tanksley & Casurella, Roy E. Barnes, Elliott & Blackburn, Thomas W. Elliott, Walter G. Elliott II, Nelson, Mullins, Riley & Scarborough, Richard B. North, Jr., Neely & Player, Lorre J. Gaudiosi, Kaye, Scholer, Fierman, Hayes & Handler, Terrence B. Adamson, Brinson, Askew, Berry, Seigler, Richardson & Davis, Robert M. Brinson, amici curiae.

Judgments reversed in Case Nos. A95A0465, A95A0466, A95A0468, and A95A0469.

Birdsong, P. J, and Beasley, J., concur. Pope, P. J., Johnson, Smith and Ruffin, JJ., concur specially. McMurray, P. J., concurs in the judgments only. Blackburn, J., not participating. Appeals dismissed in Case Nos. A95A0467 and A95A0470. Birdsong, P. J., Pope, P. J., Beasley, Johnson, Smith and Ruffin, JJ., concur. McMurray, P. J., concurs in the judgments only. Blackburn, J., not participating.


text:
    A96A2438.
    C & F BONDING COMPANY v. STATE OF GEORGIA.
    (480 SE2d 240)
   Blackburn, Judge.

C & F Bonding Company (C & F) appeals from the trial court’s order forfeiting an appearance bond on which C & F was surety. When the principal on the bond, Leighton Bernard Eccleston, failed to appear in court to answer criminal charges returned against him by a DeKalb County grand jury, a bench warrant was issued for his arrest. C & F could not produce Eccleston, and following a hearing, the trial court forfeited Eccleston’s bond in the amount of $66,050. C & F asserts that the trial court erred in forfeiting the bond.

At the forfeiture hearing, the managing investigator of C & F testified that the bond in question was issued by Dodry Mason, an employee of C & F. Mason was authorized by C & F to write bonds, and had a power of attorney from C & F for that purpose. Acting in this capacity, Mason issued a bond for Eccleston in the amount of $66,050. However, according to C & F, after issuing the bond, Mason failed to do the appropriate paperwork in connection with the bond, and also failed to transmit the money and the paperwork from the bond to C & F. Therefore, C & F maintains that it was completely unaware of the bond until it received notification of the bench warrant. C & F argues that because Mason failed to notify C & F of the bond and presumably absconded with the bond fee, he was acting for himself, and not as an agent of C & F in the handling of this bond and, therefore, forfeiture was not authorized. While Mason may not have been authorized to abscond with the bond fee, if indeed he did so, such matter is between C & F and its agent and does not affect the validity of the bond, as he was authorized to issue same on behalf of C & F.

Mason was clearly acting within his authority as the agent of C & F in issuing the bond by which C & F is bound. See OCGA § 10-6-1. And, as OCGA § 10-6-51 provides, “[t]he principal shall be bound by all the acts of his agent within the scope of his authority.” The issuing of bonds was clearly within the scope of Mason’s authority. The power of attorney granted by C & F to Mason illustrates: “[C & F] does hereby constitute and appoint D. Mason [attorney in fact with power to sign bonds, to deliver said bonds as surety. The execution of such bonds shall be binding upon the [corporation].”

Further, C & F stated at the forfeiture hearing: “We stipulate that the bond was issued by A. C. Mason, acting as agent on behalf of C & F”; and “[t]hat a bond was issued by [C & F] in the amount of $66,050.” Because Mason was acting within the scope of his authority as agent for C & F when he issued the bond to Eccleston, C & F is bound by that bond. OCGA § 10-6-51. As Eccleston failed to appear, it was not error to forfeit the bond.

C & F could not reasonably have expected to prevail on appeal of the enforcement of the bond, the validity of which it acknowledged, and therefore we assess a $500 penalty for frivolous appeal pursuant to Court of Appeals Rule 15 (b). The trial court is directed to enter a judgment for the State in this amount against C & F upon return of the remittitur.

Judgment affirmed and remanded with direction.

Birdsong, P. J, and Beasley, J., concur.

Decided January 3, 1997.

Joseph P. Hancock, for appellant.

J. Tom Morgan, District Attorney, Desiree S. Peagler, Assistant District Attorney, for appellee.

       Mason, is referred to by various first names throughout the record, but was identified as Dodry Mason by Harold Dotson, the managing investigator of C & F. We therefore will refer to him by this name.


text:
    A96A2485.
    WEST v. THE STATE.
    (480 SE2d 238)
   Blackburn, Judge.

Denson West appeals his conviction by a Brooks County jury of burglary, challenging the sufficiency of the evidence and the admission of the victim’s pre-trial photographic lineup identification of him.

1. “On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. An appellate court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses.” (Punctuation omitted.) Hight v. State, 221 Ga. App. 574 (472 SE2d 113) (1996). To sustain the conviction, the evidence must be sufficient to authorize the jury’s finding of the defendant’s guilt of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Viewing the evidence in the light most favorable to the verdict, one of the victims, Mary Giddens, found a masked man holding a knife in her bedroom around midnight on May 28, 1995. The man was going through her purse. Giddens fled to her sister’s bedroom, woke her, and explained the situation. Giddens’ sister, Cora Dix, confronted the man, who had made his way to the locked front door. By this time the man had shed his mask, and Dix, who knew the intruder, recognized him as West. Although West told Dix to “go lie back down,” Dix refused, and when West was unable to maneuver the locks on the door, Dix told him how to unlock the door. West then fled on foot.

About this same time, a neighbor, Jeffery Williams, who was acquainted with West, saw West running through his yard. The police were called, and West was apprehended at his home a short time later. After having given West’s name to police on the night of the burglary, Dix then positively identified West from a photographic lineup a few days later. This evidence was sufficient to authorize the jury’s finding that West committed the offense of burglary beyond a reasonable doubt. Jackson v. Virginia, supra.

Decided January 3, 1997.

Cork & Cork, Patrick C. Cork, James W. Lovett, for appellant.

H. Lamar Cole, District Attorney, Mark E. Mitchell, Assistant District Attorney, for appellee.

2. West argues that it was error to admit Dix’s in-court identification of him, as this identification was based upon her earlier selection of him from an impermissibly suggestive pre-trial photographic lineup. However, at trial, West did not object to any testimony based upon the identification, or to the admission of the photographic lineup. This issue was therefore not preserved for appeal. “Counsel may not idly sit by and watch when possible objectionable evidence is presented and on appeal claim error. It is necessary, in order to make the same a basis for appellate review that opposing counsel make proper objection or invoke some ruling of the court. A party cannot ignore what he thinks to be error, take his chance on a favorable verdict, and complain on appeal.” (Citation omitted.) Frink v. State, 177 Ga. App. 604, 607 (2) (340 SE2d 631) (1986).

Even had West objected to this identification, there was no error. Because the pre-trial photographic lineup did not create a substantial likelihood of irreparable misidentification, the in-court identification was not rendered inadmissible. See Nicholson v. State, 265 Ga. 711, 712-713 (2) (462 SE2d 144) (1995) (setting forth factors for evaluating admissibility of identification by pre-trial photographic lineup). Dix, the victim in this case, knew West, and she gave his name to police on the night of the incident as the perpetrator. Dix fully and completely viewed West at the time of the crime, paid close attention to him as he stood at her front door, accurately described him to the police immediately following the incident, and was certain about her identification of West. Under the standards set forth in Nicholson, supra, there was no error in admitting Dix’s pre-trial identification of West, and this enumeration is without merit.

Judgment affirmed.

Birdsong, P. J, and Beasley, J., concur.


author: McMurray, Presiding Judge.

text:
    A96A2022.
    BELL v. THE STATE.
    (480 SE2d 241)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of theft by receiving stolen property, possession of a firearm during the commission of a crime and fleeing and attempting to elude a police officer.

At trial, Officer J. M. Cole of the DeKalb County Police Department testified that he followed defendant in his patrol vehicle after he spotted defendant driving an automobile that had been reported stolen. Officer Cole explained that defendant attempted to avoid apprehension by abandoning the stolen automobile in a residential yard and fleeing into a nearby wooded area. Officer Patrick Shierling of the DeKalb County Police Department testified that he responded to Officer Cole’s call for assistance; that he chased defendant through the wooded area and that he apprehended defendant after defendant “lost his footing in the high grass. . . Officer Shierling testified that defendant was the only suspect he saw fleeing from the stolen vehicle; that he observed defendant drop a handgun during the chase and that he is “100” percent certain that defendant is the suspect he observed fleeing from the stolen vehicle.

This appeal followed entry of the judgment of defendant’s convictions and sentences. Held:

Defendant contends the trial court erred in denying a motion for mistrial he asserted in response to a law enforcement officer’s unresponsive testimony regarding an incriminating statement defendant uttered at the arrest scene. Defendant argued that the statement was inadmissible because the State failed to provide him with notice of the statement as required by OCGA § 17-16-4 (a) (1).

“If the State fails to comply with OCGA § 17-16-4 (a) ([1]), the trial court may prohibit the State from introducing the evidence it improperly withheld from the defense. This sanction, however, applies only where there has been a showing of prejudice to the defense and bad faith by the State. OCGA § 17-16-6.” Tucker v. State, 222 Ga. App. 517, 518 (3) (474 SE2d 696). In the case sub judice, defendant made no showing that he was prejudiced as a result of the State’s failure to make the custodial statement available to him prior to trial or that the State acted in bad faith in failing to comply with OCGA § 17-16-4 (a) (1). Further, defendant did not ask for a continuance to cure any prejudice which may have resulted as a result of the State’s failure to comply with OCGA § 17-16-4 (a) (1). Consequently, the trial court did not have authority, under OCGA § 17-16-6, to exercise discretion and exclude defendant’s incriminating statement from evidence at trial. It thus follows that the trial court did not err in denying defendant’s motion for a mistrial.

Assuming, however, the trial court had discretion to grant defendant’s motion for mistrial, we find it highly probable that any such error in failing to grant a mistrial did not contribute to the verdict as the evidence of defendant’s guilt was overwhelming. Mitchell v. State, 260 Ga. 229, 230 (2) (391 SE2d 761). See Talley v. State, 251 Ga. 42, 43 (302 SE2d 355).

Decided January 6, 1997

James D. Michael, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Niria L. Dominguez, Assistant District Attorneys, for appellee.

Judgment affirmed.

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

       The incriminating statement was exposed during the following direct examination of an arresting officer: “[STATE’S ATTORNEY:] And what was the condition of [defendant] when you saw him with Officer Shierling after he was apprehended? A. Well, he was obviously exhausted from running, as we all were. He was hot and sweaty, seemed to have a slight odor of alcohol about him, and just at the time he was kind of just giving up. I remember him saying something about, okay, you got me, or something — [STATE’S ATTORNEY:] Let me stop you from saying anything that he said. All right, thank you, sir.”


author: Smith, Judge.

text:
    A96A1700.
    BROADWELL v. THE STATE.
    (480 SE2d 215)
   Smith, Judge.

This is the most recent of pro se appellant Carl A. Broadwell’s many appearances before this Court. Broadwell was indicted at the September 1992 term of the Lowndes County grand jury on one count of terroristic threats, OCGA § 16-11-37 (a), and one count of possession of a firearm by a convicted felon, OCGA § 16-11-131 (b). In 1993, he pled guilty to one count of terroristic threats by threatening to commit a crime of violence on his wife.

One year and eight months after sentencing Broadwell filed a pro se “Motion to Correct Sentence,” in essence contending that the sentencing judge relied on improper and irrelevant information. He later filed a “Petition Requiring Superior Court Judge to Enter Order on Motion.” The superior court dismissed both pleadings, and Broad-well appeals, asserting 12 enumerations of error.

1. Broadwell contends his petition to require the trial court to enter a decision on his first motion was authorized by OCGA § 15-6-21, alleging that the judge to whom his first motion was assigned failed to decide it promptly. Since Broadwell’s first motion was ruled upon, however, he received the relief he sought.

2. The trial court did not err in dismissing Broadwell’s motion to correct sentence because it had no authority to change Broadwell’s sentence after expiration of the term of court in which he was sentenced. As this Court noted in Lewis v. State, 217 Ga. App. 758 (458 SE2d 861) (1995), the legislature amended OCGA § 17-10-1 (a) to delete language in the former statute prohibiting suspension, probation, modification, or change of sentence (“except as otherwise provided by law”) after the term of court or 60 days from the sentencing date, whichever time is greater. This prohibition, however, was embodied in the decisional law before the enactment of former OCGA § 17-10-1. The original version of that Code section, Ga. L. 1919, p. 387, § 1, later Ga. Code Ann. § 27-2502, did not contain the language prohibiting sentence modification after expiration of 60 days or the term of court. That language was added by Ga. L. 1964, pp. 483-484, § 4. The Georgia Supreme Court, however, clearly held on many occasions prior to 1919 and 1964 that “[w]hen the term at which the sentence imposed expired the judge was without authority to change it.” Porter v. Garmony, 148 Ga. 261 (96 SE 426) (1918); see also Heard v. Gill, 204 Ga. 261 (49 SE2d 656) (1948). In the absence of any statutory basis, such as that provided by OCGA § 42-8-34 (g), the trial court had no authority to change Broadwell’s sentence.

While it is true that a void sentence or a clerical error may be corrected after the expiration of the term in which sentence was imposed, Heard v. Gill, supra; Hopper v. Williams, 238 Ga. 612, 613 (234 SE2d 525) (1977), Broadwell has not shown any clerical error or any basis for holding his sentence void. Broadwell contends that his allegations of fraud in the presentence report and of improper consideration by the trial court of another pending charge against him constitute “fraudulent subject matter” and accordingly deprive the trial court of subject matter jurisdiction and render his sentence void. This contention is without merit. Ga. Const., Art. VI, Sec. IV, Par. I; see generally Williams v. Fuller, 244 Ga. 846, 849 (3) (262 SE2d 135) (1979).

3. In several enumerations of error, Broadwell appears to contend that he was tricked or coerced into entering a plea of guilty. We cannot consider these contentions because Broadwell has never moved to withdraw his plea. See generally Caine v. State, 266 Ga. 421 (467 SE2d 570) (1996). Moreover, the trial court’s jurisdiction to entertain a motion to withdraw the guilty plea ended after the term of court in which the judgment of conviction was rendered. Stuckey v. State, 204 Ga. App. 793, 794 (1) (420 SE2d 655) (1992).

Decided December 17, 1996

Reconsideration denied January 7, 1997.

Carl A. Broadwell, pro se.

H. Lamar Cole, District Attorney, Bradfield M. Shealy, Assistant District Attorney, for appellee.

4. Finally, to the extent that Broadwell is contending his sentence is excessive, he presents no question for review here. “This court cannot review a sentence which is within the statutory limits.” Daniels v. State, 154 Ga. App. 323, 325 (3) (268 SE2d 376) (1980).

Judgment affirmed.

Andrews, C. J, and Senior Appellate Judge HaroldR. Banke concur.

        Broadwell v. Corbett, Case No. A95A0816 (dismissed January 13, 1995); Broadwell v. Thompson, Case No. A95A0929 (transferred to Supreme Court); Broadwell v. White, 219 Ga. App. XXV (1996); Broadwell v. Selph, 217 Ga. App. XXVI (1995); Broadwell v. Temples, 217 Ga. App. XXVI (1995). At least one other case remains pending before this Court.

       Broadwell’s stormy relationship with his wife and his encounters with law enforcement authorities growing out of that relationship are detailed in the earlier appeals enumerated in footnote 1.

       As authority for his contention that his sentence was void and a nullity, Broadwell cites only to OCGA § 17-9-4 and an inapplicable section of the Civil Practice Act.

       The trial court stated on the record, however, that it was not considering the pending charges against Broadwell.


text:
    A96A1671.
    CANTIN v. JUSTICE.
    (480 SE2d 250)
   Blackburn, Judge.

Michael J. Cantin appeals the trial court’s determination that his personal injury claim was barred by the statute of limitation due to his lack of diligence in serving the complaint, particularly his failure to determine the correct county in which the defendant resided prior to filing the complaint.

On August 3, 1993, Cantin was involved in an automobile accident with Betheda F. Justice. Acting pro se, Cantin filed a suit against Justice on August 3, 1995, the last day to file within the statute of limitation. Although Cantin was aware of Justice’s correct address, he érroneously determined that it was located in Fulton County where he filed his suit. On August 7, 1995, an entry of service form was filed indicating that the Fulton County Sheriff’s Department could not serve the complaint as the address it listed for Justice was not found within Fulton County. Cantin averred that he became aware of this problem with service on August 10, 1995. The following day, August 11, 1995, Cantin filed a motion to transfer venue to DeKalb County, where Justice’s residence was located. That same day Cantin also arranged for Justice to be served with a second original of his complaint by the DeKalb County Sheriff’s Department. Justice was served on August 22, 1995, 19 days after the statute of limitation had expired. Cantin’s motion to transfer venue from Fulton to DeKalb County was granted on September 25, 1995. The DeKalb County trial court subsequently entered summary judgment against Cantin based upon his lack of diligence in determining Justice’s correct address prior to filing the complaint which resulted in it not being served until after the statute of limitation had expired.

Where a complaint is filed near the statute of limitation and service is made after the statute expires and after the five-day safe harbor provision contained within OCGA § 9-11-4 (c), the relation back of the service to the date of filing is dependent upon the diligence exercised by the plaintiff in perfecting service. McCane v. Sowinski, 143 Ga. App. 724 (240 SE2d 132) (1977). “ ‘The plaintiff has the burden of showing that due diligence was exercised. Ordinarily, the determination of whether the plaintiff was guilty of laches in failing to exercise due diligence in perfecting service after the running of the statute of limitations is a matter within the trial court’s discretion and will not be disturbed on appeal absent abuse.’ ” Mann v. Atlanta Cas. Co., 215 Ga. App. 747, 749 (452 SE2d 130) (1994).

In granting summary judgment, the trial court relied upon a line of cases from this Court holding that when a plaintiff is aware of a defendant’s correct address, he must also determine the correct county in which that address is found, otherwise his actions show a lack of diligence that will support summary judgment against him. Nee v. Dixon, 199 Ga. App. 729, 730 (405 SE2d 766) (1991) (“appellant was aware of appellee’s correct address at all times, and the burden was upon her to ascertain the county in which appellee resided before filing suit”); see also McManus v. Sauerhoefer, 197 Ga. App. 114 (397 SE2d 715) (1990); Walker v. Hoover, 191 Ga. App. 859 (383 SE2d 208) (1989).

The plaintiff contends that this matter is controlled by a recent Supreme Court decision, Ga. Farm Bureau Mut. Ins. Co. v. Kilgore, 265 Ga. 836 (462 SE2d 713) (1995). In Kilgore, the plaintiffs sued the owner and operator of a tractor that caused a collision. After the suit had been pending for many months, it was discovered that the defendants were uninsured. The plaintiffs then requested that a copy of their claim against the defendants be served upon their UM carrier. Due to the unavailability of the UM carrier’s registered agent, the sheriff was unable to serve the carrier until two weeks after he had been requested to do so. This service came two days after the statute lapsed. The Supreme Court held that “[i]n determining whether diligence was exercised, the focus is upon the plaintiffs efforts after becoming aware that the process server failed to perfect service in accordance with the time limit provided in OCGA § 9-11-4 (c).” (Emphasis supplied.) Id. at 837. Accordingly, Cantin argues that his diligence should be measured from when he became aware of a problem with service, not from when he erroneously determined the county in which Justice’s residence was located'. We disagree.

Decided January 7, 1997.

Kilgore is distinguishable from the present case. There is no question that the plaintiffs in Kilgore initially provided the process server with correct information, including county, as to where the defendant could be located. The subsequent failure to serve within the statute of limitation was not related to any error or omission on the part of the plaintiffs. The rule announced in Kilgore did not attempt to address the present situation where the failure to timely serve was caused by the plaintiffs own error in determining the defendant’s correct address. See Bennett v. Matt Gay Chevrolet Oldsmobile, 200 Ga. App. 348, 350 (408 SE2d 111) (1991) (distinguishes cases where late service was fault of “plaintiff in determining the location where defendant could be properly served” from those cases where the late service was unrelated to an act of the plaintiff); see also Morse v. Flint River Community Hosp., 215 Ga. App. 224, 225 (450 SE2d 253) (1994) (when plaintiff “placed the summons and complaint in the hands of the proper officials with correct addresses attached, she did all that was required of her . . . [u]ntil she received some notice . . . that service was not possible”). Nor did Kilgore overrule Nee, supra, or any of the other prior cases that speak directly to this issue.

“[T]he trial court’s exercise of discretion in determining diligence [in serving a complaint outside the safe harbor provision of OCGA § 9-11-4 (c)] will not be reversed on appeal unless it has been actually abused and cannot be supported as a matter of law.” Morse, supra. In this case, in the exercise of its discretion, the trial court determined that Cantin had not been diligent in perfecting service due to his own failure to correctly determine the county in which defendant resided. While there was evidence in the record that would have supported a different conclusion, discretion is vested solely in the trial court which did not abuse its discretion in reaching its result. Accordingly, the judgment of the trial court is affirmed.

Judgment affirmed.

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

Paul C. Munger, for appellant.

Sharon W. Ware & Associates, Stuart Theodore, for appellee.

       Rule T-13 of the Uniform Transfer Rules provides that once a case has been transferred to another court, it “shall continue in the court to which transferred as though initially commenced there and all pleadings ... and other papers shall be deemed to be amended accordingly.” Therefore, despite its transfer from Fulton to DeKalb County, Can-tin’s complaint is considered to have been filed with the DeKalb Superior Court on August 3, 1995, within the statute of limitation.


text:
    A96A1701.
    BANDERAS et al. v. DOMAN.
    (480 SE2d 252)
   Blackburn, Judge.

Julio C. Banderas, M.D. (“Banderas”) appeals the trial court’s order denying his motion to vacate an arbitration award. Because the arbitrators validly exercised their authority in rendering the award, the trial court’s order is affirmed.

In January 1991, Banderas agreed to sell his medical practice to Alexander Doman, M.D. (“Doman”). In connection with this transaction, the parties executed an Asset Purchase Agreement and certain other ancillary agreements. The Asset Purchase Agreement contained an arbitration provision which provided in relevant part as follows: “Should any dispute arise as to the interpretation, meaning or the intent of this Agreement... or should any dispute arise as to any alleged misinterpretations or transgressions by one party to another . . . then such dispute shall be expeditiously decided by arbitration, in Georgia, and the result of such arbitration shall be binding on the parties.”

Shortly after entering into the agreements, various disputes arose between the parties. Banderas claimed that Doman failed to pay money owed to Banderas under the agreements. Doman claimed that Banderas breached various provisions of the agreements by, among other things, improperly exercising self-help remedies following Doman’s alleged default. Doman demanded that the disputes be arbitrated, but Banderas refused to agree to arbitration. Doman then filed suit for breach of contract and asked the trial court to compel the parties to submit to binding arbitration. The trial court entered an order requiring the parties to submit their disputes to binding arbitration.

In addition to his claims for breach of contract, Doman raised before the arbitrators claims of tortious interference with Doman’s medical practice. Although Banderas argued that these tort claims were not subject to arbitration, the arbitrators issued a written order finding that they had authority to consider such claims. On December 6, 1994, the arbitrators issued a formal decision, finding that Doman owed $155,009 to Banderas, and that Banderas owed $845,602 to Doman. The arbitrators subsequently issued an additional award granting attorney fees and punitive damages to Doman.

Banderas moved the trial court to vacate or, in the alternative, modify the arbitrators’ award. The trial court denied the motion to vacate, but partially granted the motion to modify by setting aside the award of punitive damages. Banderas now appeals the trial court’s denial of his motion to vacate the award.

The Georgia Supreme Court has recently held that OCGA § 9-9-13 (b) sets forth the exclusive grounds upon which an arbitration award may be vacated. Greene v. Hundley, 266 Ga. 592, 595-596 (468 SE2d 350) (1996). In each of his enumerations of error, Banderas argues that the award should be vacated pursuant to OCGA § 9-9-13 (b) (3) (“[a]n overstepping by the arbitrators of their authority or such imperfect execution of it that a final and definite award upon the subject matter submitted was not made”).

1. Banderas asserts that the arbitrators overstepped their authority in considering Doman’s tortious interference claims, because such claims were outside the scope of the arbitration agreement. Banderas claims that the parties intended the arbitration provision to extend only to breach of contract claims, and not to tort claims.

Banderas’ argument is without merit. The arbitration provision in the Asset Purchase Agreement is not expressly limited to claims of breach of contract, but covers all disputes arising as to “the interpretation, meaning or the intent of this Agreement or ... as to any alleged misinterpretations or transgressions by one party to another.” Whether tort claims were intended to be covered by the arbitration provision is a dispute over the “interpretation, meaning or the intent” of the agreement, a matter which is clearly within the scope of the arbitrators’ authority. As the arbitrators’ finding that the tort claims were covered by the arbitration provision was within the scope of their authority, the arbitrators did not overstep their authority in ruling on such claims.

2. Banderas also argues that because the arbitration agreement was not intended to cover tort claims, the arbitrators’ consideration of such claims amounted to forced arbitration, depriving him of his right to jury trial and due process under the United States and Georgia constitutions. However, as discussed in Division 1, supra, the arbitrators found that the arbitration provision did in fact extend to tort claims. As this finding was within the scope of the arbitrators’ authority, it will not be disturbed on appeal, and this enumeration is without merit.

3. The arbitrators’ award to Doman separately identified several items of damages, including (i) $210,000 in liquidated damages for breach of the restrictive covenant and non-solicitation provisions of the Asset Purchase Agreement, (ii) $37,680 for certain services rendered, and (iii) $500,000 in “general damages for breach of contract and for tortious interference with business and professional practice.” Banderas argues that these separate awards are duplicative, and that this constitutes grounds for vacating the award under OCGA § 9-9-13 (b) (3).

“[A] reviewing court is prohibited from weighing the evidence submitted before the arbitrator, regardless of whether the court believes there to be sufficient evidence, or even any evidence, to support the award.” Greene, supra at 596-597. Therefore, this Court cannot examine the record before the arbitrators to determine whether the evidence supported the separate items of damages. The arbitrators’ award does not show on its face that these separate items are duplicative, and, accordingly, Banderas’ argument is without merit.

Banderas’ principal assertion is that the award of $210,000 in liquidated damages precludes the separate award of other items of damages. However, the liquidated damages provision of the Asset Purchase Agreement did not purport to liquidate damages for any and all breaches of the agreements, but was limited to breaches of the restrictive covenant and non-solicitation provisions. The separate award of $37,680 does not appear to have been intended as damages for breach of these provisions, but as compensation for services rendered. Thus, on its face, such damages do not appear to be duplicative of the liquidated damages award.

The $500,000 award for “general damages for breach of contract and for tortious interference with business and professional practice” also does not appear on its face to be duplicative of the other items of damages. The arbitrators found that Banderas breached the Asset Purchase Agreement “in several ways.” It appears that the $500,000 in general damages consisted of damages for breach of contract other than those separately provided for in the arbitrators’ decision, as well as damages for tortious interference. While it may have been preferable for the arbitrators to have separately identified damages for each tort and contract claim, they were under no statutory obligation to do so.

Since it does not appear on the face of the arbitrators’ award that the separate items of damages were duplicative, we find that the arbitrators did not overstep or imperfectly execute their authority in awarding such damages.

Decided January 7, 1997

Harman, Owen, Saunders & Sweeney, Timothy J. Sweeney, Ste phen E. Boswell, Steven C. Teske, for appellants.

4. Banderas argues that the arbitrators overstepped their authority in awarding liquidated damages to Doman, because the liquidated damages provision of the Asset Purchase Agreement is void as a penalty. However, the construction of the liquidated damages provision was a matter for the arbitrators to determine. See City of College Park v. Batson-Cook Co., 196 Ga. App. 138, 140 (395 SE2d 385) (1990). “The fact that the relief was such that it could not or would not be granted by a court of law or equity is not ground for vacating or refusing to confirm the award.” OCGA § 9-9-13 (d). Furthermore, an arbitrator has the “inherent power to fashion a remedy as long as the award draws its essence from the contract or statute.” (Punctuation omitted.) Greene, supra at 595.

Additionally, liquidated damages provisions are not per se illegal or unenforceable in Georgia. Rather, they are enforceable if the injury caused by the breach of contract is difficult or impossible to estimate, the parties intend to provide for damages, and the sum stipulated is a reasonable pre-estimate of the probable loss. Wehunt v. ITT Bus. Communications Corp., 183 Ga. App. 560, 561 (2) (359 SE2d 383) (1987); see also OCGA § 13-6-7. In the present case, the arbitrators did not set forth their reasons for finding the liquidated damages provision to be enforceable, and they are not required to do so. Greene, supra at 595. This Court will not examine the evidence to determine whether the arbitrators correctly applied Georgia law in making an award of liquidated damages. Therefore, this enumeration is without merit.

5. Finally, Banderas argues that the evidence did not support the arbitrators’ finding that his actions constituted tortious interference. Because a reviewing court is prohibited from weighing the evidence submitted before the arbitrator, this enumeration is without merit. Greene, supra at 596-597.

Judgment affirmed.

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

Kilpatrick & Cody, Alan R. Perry, Jr., Weinstock & Scavo, Michael Weinstock, for appellee.

       Doman does not appeal the trial court’s order setting aside the award of punitive damages.

       In his brief, Banderas also argues that Doman waived his right to arbitrate the tort claims by not asserting such claims in his original complaint seeking to compel arbitration. However, as this issue was not contained in Banderas’ enumerations of error, it will not be considered on appeal. West v. Nodvin, 196 Ga. App. 825, 830 (4) (397 SE2d 567) (1990).

       This Court’s holding in Mid-American Elevator Co. v. Gemco Elevator Co., 183 Ga. App. 88 (357 SE2d 838) (1987), does not demand a different result. In that case, the Court vacated an award pursuant to OCGA § 9-9-13 (b) (3), where the evidence clearly showed, and the appellee admitted, that certain invoices were counted twice by the arbitrator in determining the amount of damages. The Court held that, in such case, there was “such an ‘imperfect execution of the (arbitration) that a final and definite award upon the subject matter submitted was not made.’ ” Id. at 89. However, that case was decided before Greene, which finally established that a reviewing court is prohibited from weighing the evidence submitted to the arbitrator, regardless of whether there is any evidence to support the award. Greene, supra at 596-597.


text:
    A96A2088.
    In the Interest of R. N. et al., children.
    (480 SE2d 243)
   Blackburn, Judge.

The mother of these five children appeals the juvenile court’s termination of her parental rights, claiming the evidence is insufficient to support the court’s judgments. The question on appeal is whether, after reviewing the evidence in a light most favorable to the lower court’s judgments, “any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost.” (Citations and punctuation omitted.) In the Interest of J. H., 210 Ga. App. 255, 258 (1) (435 SE2d 753) (1993). This Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the trial court’s factfinding and affirm unless the appellate standard is not met. In the Interest of J. M. K., 189 Ga. App. 140, 141 (375 SE2d 131) (1988).

Pursuant to OCGA § 15-11-81 (a), a juvenile court deciding whether to terminate a parent’s rights employs a two-prong test, first determining whether there is “clear and convincing evidence of parental misconduct or inability.” For purposes of this case, a finding of “parental misconduct or inability” must rest on clear and convincing evidence showing: 1) that the child is deprived; 2) that the cause of the deprivation is a lack of proper parental care or control; 3) that the cause of the deprivation is likely to continue or will not likely be remedied; and 4) that the continued deprivation is likely to cause physical, mental, emotional, or moral harm to the child. OCGA § 15-11-81 (b) (4) (A). If the first prong of the test is met, the trial court then considers whether the termination of parental rights is in the child’s best interests.

At the time the mother’s rights were terminated on August 10, 1995, these children ranged in age from four to ten years. The evidence showed the mother had demonstrated a continuing pattern of conduct that required the Chatham County Department of Family & Children Services (DFACS) to remove the children on a number of different occasions prior to the termination. In early 1989, the juvenile court declared the three oldest children deprived after Chatham County police found them living in a trailer with “maggots on the stove and trash everywhere,” which the court described as “unfit for human habitation.” The children’s hair was infested with lice, and the utilities were being cut off for nonpayment. DFACS placed the children in foster care and worked with the parents. By March 1990, the parents had made sufficient improvements, and the court returned the children to their custody.

By 1992, however, the size of the family had grown from three children to five, and problems were again evident. The mother was hospitalized in December 1992 for depression, and the oldest two children were not enrolled in school until December 2,1992. Between that date and January 23, 1993, these two children missed twelve of twenty-five school days and were tardy an additional five. In early 1993, eviction proceedings had been instituted against the parents, and the utilities had been cut off in their apartment. The home was strewn with food and clothes. In January 1993, one child burned himself on a space heater. The court entered another order reciting these facts and finding the children deprived. The parents stipulated to this order.

Once again, the parents improved their situation to the point that they were allowed physical (but not legal) custody of two of the children, and later four. As part of a reunification plan, the court later ordered the parents to “provide a stable, adequate, and safe residence” for these children. But after the children were returned to their parents, the problems recurred. A DFACS caseworker testified that even though social workers assisted at the mother’s home once or twice a day, the children still were not getting to school, and they continued to have problems with lice. Utilities had been cut off, and “all the problems that had occurred prior to the kids being placed [with DFACS] were back.” In May 1994, the mother admitted herself to a mental health “crisis stabilization unit.” DFACS again assumed custody of the children. Throughout the remainder of 1994 and into 1995, the mother made some effort to comply with required counseling, even though the parents separated, moved, then got back together. The petition for termination of parental rights was filed on April 24, 1995.

1. (a) Based on the above facts, the juvenile court did not err in finding the children deprived, the first prong of the test under OCGA § 15-11-81 (a). At the time of the hearing, the parties were operating under a stipulated 1993 order which had found the children to be deprived. See In the Interest of B. P., 207 Ga. App. 242, 244 (427 SE2d 593) (1993) (unappealed order finding deprivation establishes deprivation for purposes of later termination proceedings). Furthermore, the evidence showed that when the mother had custody of the children, they suffered from lice infestations, did not attend school, and lived in squalid, unstable conditions.. See J. M. K, supra at 141 (inability of parent to provide adequate food, shelter, and supervision). This evidence sufficiently supports the juvenile court’s finding that these children were “deprived” as defined by OCGA § 15-11-2 (8) (A). See In the Interest of C. N. G., 204 Ga. App. 239 (1) (419 SE2d 42) (1992) (juvenile court has discretion in determining whether child is “deprived” which, if based on evidence, is not subject to the control of a reviewing court).

(b) The trial court was also entitled to determine that the mother’s inability to adequately care for the children was the cause of the children’s deprivation. OCGA § 15-11-81 (b) (4) (A) (ii). A psychologist testified that, when he examined the mother in 1993, he found her to suffer from major depression, post-traumatic stress disorder, and a personality disorder. The mother had been hospitalized twice for depression and admitted that when the children were last taken from her custody in 1994, she was in a state of “depression and chaos.” The juvenile court properly considered this mental illness in determining whether the mother could adequately provide for her children’s needs. OCGA § 15-11-81 (b) (4) (B) (i). The pattern of conduct since 1989 supplies a clear and convincing basis for the juvenile court’s finding that the children’s deprivation was due to their mother’s inability to care for them. See In the Interest of R. L. M., 221 Ga. App. 343, 344 (1) (471 SE2d 245) (1996) (mother’s mental condition rendered her incapable of caring for her children).

(c) The evidence also sufficiently .supported the juvenile court’s finding that this deprivation is likely to continue in the future. OCGA § 15-11-81 (b) (4) (A) (iii). “Although past deprivation is not sufficient for termination without a showing of present deprivation, the court can consider a parent’s past conduct in determining whether such conditions of deprivation are likely to continue.” (Punctuation omitted.) In the Interest of A. M. B., 219 Ga. App. 133, 134 (464 SE2d 253) (1995). The court was entitled to infer from the evidence that, despite the best efforts of DFACS and many other social workers and charities, the same pattern of deprivation would continue each time the children were reunited with their mother. See R. L. M., supra. Furthermore, the psychologist predicted that the mother’s pattern of stabilizing the household when the children were away but then becoming overwhelmed and incapable of meeting their needs when they were returned to her custody would likely repeat itself. See A. M. B., supra at 134-135.

(d) The record also sufficiently supports the fourth necessary finding, that the children are likely to be harmed by the lack of proper parental care and control. OCGA § 15-11-81 (b) (4) (A) (iv). A psychologist who had evaluated the four older children in 1993 testified that all four had varying degrees of emotional disorders and speech impediments and lagged well behind other children in development. This evidence, combined with the evidence showing the children’s dire living conditions in 1994, provides clear and convincing support for the juvenile court’s finding of likely harm. See A. M. B., supra at 135.

Decided January 7, 1997.

Darden & Moyers, Richard M. Darden, for appellant.

Michael J. Bowers, Attorney General, Shalen A. Sgrosso, Assistant Attorney General, for appellee.

2. In determining that terminating the mother’s parental rights would serve the best interests of the children, the court properly concerned itself with the need for stability in their lives. These children had been bounced between foster homes and their parents’ home over the previous several years, to the detriment of their emotional stability. See In the Interest of D. I. W., 215 Ga. App. 644, 646 (451 SE2d 804) (1994). Furthermore, the same factors which show parental inability may also show that termination would be in the children’s best interest. In the Interest of G. K. J., 187 Ga. App. 443, 444 (2) (370 SE2d 490) (1988). Although the mother contends she has now changed, judging the credibility of her good intentions was a task for the juvenile court. “[T]he decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.” (Citation and punctuation omitted.) D. I. W., supra at 646.

The evidence sufficiently supports the trial court’s judgments terminating the parental rights of the mother to these five children.

Judgment affirmed.

Birdsong, P. J., and Beasley, J., concur.

       The father’s rights were also terminated, but he has not appealed.


author: McMURRAY, Presiding Judge.

text:
    A96A1958, A96A1959.
    THE STATE v. SUMLIN; and vice versa.
    (480 SE2d 260)
   McMURRAY, Presiding Judge.

Defendant was charged in an accusation with driving under the influence of marijuana in violation of OCGA § 40-6-391 (a) (2) and (6), failing to display her driver’s license when asked to do so by a law enforcement officer, unauthorized passing on yellow line and also possession of marijuana. The trial court partially granted defendant’s motion to suppress and in limine to exclude the results of the State’s chemical analysis of defendant’s urine, concluding that OCGA § 40-5-67.1 (a) requires breath or blood testing before an officer may require a suspect to submit to urine analysis. The trial court, however, partially denied defendant’s motion to suppress and in limine, pertinently concluding that defendant’s performance of field sobriety tests did not violate her state and federal rights against self-incrimination; that there was probable cause for defendant’s arrest and that an on-the-scene search of defendant’s automobile by law enforcement officers was valid because it was incident to a lawful arrest. The trial court entered the following findings of fact:

“On the morning of April 13, 1995, Defendant was traveling southbound on Thompson Bridge Road. Officer [W. L.] Boyd [of the Hall County Sheriff’s Department], who was directing traffic in a school zone along the road, observed the Defendant pass on [a] double yellow line located on both a curve and hill within the school zone. The officer pursued the Defendant in his vehicle with his blue lights flashing. The Defendant was driving very quickly and the officer followed the Defendant for about a mile before catching up to and pulling her over. When Officer Boyd asked for her driver’s license and insurance card, he noticed that [defendant’s] speech was slurred. Defendant stated that she was on medication. Officer Boyd was concerned and called a traffic unit to the scene.

“Approximately ten to fifteen minutes later, [Deputy Dallas] Van Scoten [of the Hall County Sheriff’s Department] and another officer arrived. The officers noticed that the Defendant was slumped in her seat and acting in an unusual manner. They asked her to step out of her vehicle and perform several field sobriety tests. The Defendant agreed. In administering the alkasensor test, Officer Boyd detected the smell of marijuana on Defendant’s breath. Based on the results of the HGN, ‘One Leg Stand’, ‘Walk & Turn’, and alcosensor tests, the Defendant was placed under arrest and read implied consent. Subsequently, the officers conducted a search of Defendant’s vehicle, without her consent, and found a burnt ‘roach clip’ on the passenger seat. Defendant was later given a state-administered urine test.”

The State appeals in Case No. A96A1958, and defendant cross-appeals in Case No. A96A1959. Held:

Case No. A96A1958

1. The trial court erred in excluding and suppressing the results of the State’s chemical analysis of defendant’s urine because OCGA § 40-5-67.1 (a) — when examined closely, in accordance with proper rules of statutory construction and in concert with OCGA §§ 40-5-55 (a) and 40-6-392 (a) (1) (A) — does not require blood or breath testing before an officer may require a suspect to provide a urine sample for purposes of analysis for the presence of alcohol, drugs, or marijuana. Jordan v. State, 223 Ga. App. 176, 178-182 (2) (477 SE2d 583). Accordingly, the trial court erred in partially granting defendant’s motion to suppress and in limine to exclude the results of the State’s chemical analysis of defendant’s urine.

Case No. A96A1959

2. In Case No. A96A1959, defendant Sumlin’s first enumeration of error provides that the trial court erred “in ruling that an articu[l]able suspicion existed to continue to detain [her] after the stop; the same constituting an arrest without probable cause.”

Officer Boyd testified that defendant’s “slurred” speech spurred his decision to detain defendant for a more critical impaired driving investigation by a specially trained DUI traffic unit. Defendant urges, however, that this explanation is not plausible because Officer Boyd admitted during cross-examination that he did not recall defendant saying anything during the traffic stop. Defendant’s appellate counsel thus offers the following logic: “Since one cannot slur their words without speaking, there existed no reason to believe or articulate suspicion to suppose or suspect that [defendant] was under the influence.”

Although Officer Boyd admitted on cross-examination that he does not remember the specific words defendant uttered during the traffic stop, Officer Boyd’s testimony upon further cross-examination indicates that defendant talked during this encounter and that he summoned the DUI traffic unit because defendant’s speech “had a very slurred pronunciation of words. . . .” This testimony, as well as Officer Boyd’s testimony that he observed defendant illegally pass another vehicle in a school zone, authorized defendant’s “ten to fifteen” minute detention for a more critical impaired driving investigation by the specially trained DUI traffic unit. See Lankford v. State, 204 Ga. App. 405, 406 (2) (419 SE2d 498).

3. Defendant contends the field sobriety tests violated her state and federal rights against self-incrimination because she was never advised of her right not to submit to field sobriety testing as well as her rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694). There was no violation of defendant’s right not to incriminate herself under Art. I, Sec. I, Par. XVI of the Georgia Constitution of 1983, the Fifth Amendment of the United States Constitution, or OCGA § 24-9-20 (a), because defendant was not in custody at the time the field sobriety tests were administered. Lankford v. State, 204 Ga. App. 405, 406 (2), supra.

4. Defendant contends the trial court erred in failing to suppress contraband found in her automobile, arguing that she was illegally arrested and that her automobile was searched without her consent. These assertions are without merit.

Decided January 8, 1997.

Jerry Rylee, Solicitor, Inez G. D’Entremont, Assistant Solicitor, for appellant.

Troy R. Millikan, for appellee.

“A ‘warrantless arrest’ is constitutionally valid if, at the moment the arrest is made, the facts and circumstances within the knowledge of the arresting officers and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the accused had committed or was committing an offense. Durden v. State, 250 Ga. 325, 326 (297 SE2d 237) (1982); Beck v. Ohio, 379 U. S. 89, 91 (85 SC 223, 13 LE2d 142) (1964).” Callaway v. State, 257 Ga. 12, 13 (2) (354 SE2d 118). In the case sub judice, Officer Boyd testified that he observed defendant illegally pass another vehicle in a school zone and that defendant exhibited “slurred” speech after he stopped her for this traffic violation. Officer Van Scoten testified that he smelled marijuana emanating from defendant’s breath and that defendant failed several field sobriety tests. This evidence is sufficient to authorize the trial court’s finding that there was probable cause for defendant’s arrest. Accordingly, since the search of the passenger compartment of defendant’s automobile was incident to a lawful arrest, the trial court did not err in failing to suppress the contraband that was seized from defendant’s automobile. State v. Elliott, 205 Ga. App. 345, 346 (422 SE2d 58).

The trial court did not err in partially denying defendant’s motion to suppress and in limine.

Judgment affirmed in Case No. A96A1959. Judgment reversed in Case No. A96A1958.

Johnson, J., concurs. Ruffin, J., concurs in the judgments only.

       The trial court’s order does not address this issue. It only reflects a ruling — with regard to defendant’s detention — as to the issue of “whether the officer had reasonable articulable suspicion to pull the Defendant over.”


author: Eldridge, Judge.

text:
    A96A2175.
    HILL v. THE STATE.
    (480 SE2d 256)
   Eldridge, Judge.

A Whitfield County jury found Allen Deborah Hill guilty of possession of a drug-related object; appellant was found not guilty of possession of cocaine. He appeals the denial of his motion to suppress.

In reviewing a trial court’s decision on a motion to suppress, its findings will not be disturbed if there is any evidence to support them; all relevant evidence of record, including evidence introduced at trial, as well as evidence introduced at the motion to suppress hearing, may be considered. Pless v. State, 218 Ga. App. 603 (462 SE2d 472) (1995); State v. Brodie, 216 Ga. App. 198 (453 SE2d 786) (1995).

In viewing the record before this Court, the evidence was that Officer Leonard of the Dalton Police Department and two other officers were patrolling a known drug area in an unmarked car at approximately 12:30 a.m. Leonard observed the vehicle of a known crack user, “Velvet,” stopped on the south side of McAfee Street; a known crack seller, “Cricket,” was walking from that vehicle toward appellant, who had previously been arrested for possession of drugs in that same area. The officer observed that Cricket walked up to appellant, who was standing on the other side of the street; appellant, using a clenched fist, handed Cricket an object; and Cricket started back toward Velvet’s car. Based on Officer Leonard’s experience as a narcotics officer and his personal knowledge of the people involved, the officer determined that he had just witnessed a drug transaction; Leonard detained appellant and conducted a safety pat-down. While patting down the outside of appellant’s Levi jacket, the officer felt what he immediately recognized as several rocks of cocaine in the pocket. He reached in appellant’s pocket and removed a baggie containing several rocks of apparent crack cocaine. Appellant was arrested, and a crack pipe was found in his possession. The rocks of crack were determined to be an imitation substance; an analysis of the crack pipe came back positive for cocaine residue.

1. Appellant contends that Officer Leonard did not have probable cause to conduct a stop pursuant to Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). We do not agree. Officer Leonard had “reasonable and articulable suspicion” to detain appellant based on his observation of actions consistent with drug activity. Pless, supra at 605; Jackson v. State, 217 Ga. App. 485 (458 SE2d 153) (1995); Granger v. State, 205 Ga. App. 483 (423 SE2d 20) (1992).

2. Appellant contends that Officer Leonard exceeded the “use” of a Terry stop because Leonard did “not have authority to manipulate the contents of Defendant’s pockets in order to determine if an object is contraband.” This allegation cannot be considered because it raises an argument that differs from the argument raised before the trial court. Robinson v. State, 208 Ga. App. 528, 529 (430 SE2d 830) (1993). At the motion to suppress, appellant argued only that Leonard exceeded the scope of a Terry pat-down because such a pat-down is only for the purpose of recovering weapons, not contraband; appellant never argued that Officer Leonard “manipulated” appellant’s jacket pocket in order to ascertain its contents. ‘Where an entirely different objection or basis for appeal is argued in the brief which was not presented at trial we will not consider that basis as we are limited to those grounds presented to and ruled upon by the trial court.” (Citations and punctuation omitted.) Robinson, supra at 530-531 (4).

Decided January 8, 1997.

Michael A. Corbin, for appellant.

Kermit N. McManus, District Attorney, for appellee.

Judgment affirmed.

Beasley and Blackburn, JJ, concur.