text:
    A99A0354.
    DOVER v. THE STATE.
    (516 SE2d 839)
   Barnes, Judge.

Herman Mitchell Dover appeals the denial of his motion for an out-of-time appeal. After Dover pleaded guilty to statutory rape in 1997, he filed a motion to withdraw his guilty plea in July 1997. Although this motion was denied on January 9, 1998, Dover did not file a notice of appeal from the denial of this motion until February 11, 1998. Consequently, this appeal was dismissed by this Court because the notice of appeal was not timely filed.

Subsequently, Dover filed a motion seeking permission for an out-of-time appeal of his motion to withdraw his guilty plea. Dover asserted that an out-of-time appeal should be granted because his failure to pursue his appeal in a timely manner was either the result of excusable neglect on the part of his attorney or the ineffective assistance of his counsel in filing the untimely notice of appeal. Nothing Dover presented in support of his motion for an out-of-time appeal, however, provided any information regarding the basis for seeking the withdrawal of his guilty plea. After his motion was denied by the trial court, Dover filed this appeal.

The trial court’s order denying the motion stated that the case was controlled by our Supreme Court’s recent decision in Wheeler v. State, 269 Ga. 547, 548 (499 SE2d 629) (1998):

Decided April 28,1999.

Gary P. Bunch, for appellant.

N. Stanley Gunter, District Attorney, for appellee.

As the movant for an out-of-time appeal, appellant had to establish a good and sufficient reason which entitled him to an out-of-time appeal. Smith v. State, 266 Ga. 687 (470 SE2d 436) (1996). To meet this burden of proof, appellant had to set forth the questions he would raise should the appeal be granted, and show that the questions could be resolved by facts appearing in the appellate record. Id. Appellant has alleged only that his attorney’s inadequate performance was the reason why no timely appeal was filed; appellant has not set forth the questions he would raise in an out-of-time appeal and that the questions could be resolved by facts in the record.

Therefore, the trial court found that Dover’s motion failed to satisfy his burden under Wheeler v. State. We agree.

The denial of a motion for an out-of-time appeal is a matter within the discretion of the trial court, and the trial court’s decision will not be reversed absent abuse of such discretion. See Hightower v. State, 192 Ga. App. 836 (386 SE2d 716) (1989). We find no abuse of discretion in this case. Nothing in Dover’s pleadings regarding his out-of-time appeal so much as mentioned the issues he would raise if his out-of-time appeal were granted, or whether the issues could be resolved by facts appearing in the appellate record. See Wheeler, supra, 269 Ga. at 548. Further, even though Dover has attempted to correct this deficiency by reciting the required information in his appellate brief, a party cannot supplement the record by statements in his appellate brief. Williams v. State, 193 Ga. App. 677, 678 (388 SE2d 893) (1989).

Judgment affirmed.

Blackburn, P. J, and Senior Appellate Judge Harold R. Banke concur.


source: Caselaw Access Project

author: Barnes, Judge.

license: Public Domain

text:
    A99A0584.
    VISSER v. THE STATE.
    (516 SE2d 840)
   Barnes, Judge.

Terry Visser appeals his convictions for possession of marijuana with intent to distribute, driving under the influence, driving with a prohibited substance, and possession of less than one ounce of marijuana. He contends the evidence is insufficient to sustain his convictions.

1. Although Visser contends the evidence presented is insufficient to sustain his convictions, his argument focuses solely on his conviction for possession of marijuana with intent to distribute. As Visser did not present argument on his other convictions, any issue concerning the sufficiency of the evidence to support those convictions is abandoned. Court of Appeals Rule 27 (c) (2); Bicknell v. Joyce Sportswear Co., 173 Ga. App. 897, 898 (3) (328 SE2d 564) (1985); Sepulvado v. Daniels Lincoln-Mercury, 170 Ga. App. 109 (1) (316 SE2d 554) (1984).

2. On appeal, the evidence is viewed in the light most favorable to the verdict. Further, Visser no longer enjoys the presumption of innocence, and the appellate court determines the sufficiency of the evidence and neither weighs the evidence nor judges the credibility of the witnesses. Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990).

Viewed in the light most favorable to the verdict, the evidence shows that after receiving information Visser would be driving one of his cars to go purchase a quantity of marijuana, an officer saw Visser drive off. That night officers saw Visser returning to the county and, after following Visser’s vehicle, saw him driving erratically and pulled him over.

Initially, the officers detected a strong odor of flowers or deodorant in the car, but when the air cleared one of the officers smelled what he believed to be burnt marijuana. Upon further investigation, including the use of a drug dog, a cola box containing over a pound of marijuana was found on the floor behind the front passenger bucket seat. This marijuana was the basis for the possession with intent to distribute charge.

Visser’s defense to this charge was that the marijuana did not belong to him. He claimed he did not know the marijuana was in his car and that a former girlfriend also had access to the car. Therefore, he asserted that under the equal access rule he was entitled to an acquittal.

In this context, the equal access rule is merely that when there is evidence that someone other than the driver of the automobile had equal access to the contraband, the presumption that contraband found in an automobile is in the exclusive possession of the driver may be overcome. Lombardo v. State, 187 Ga. App. 440, 442 (5) (370 SE2d 503) (1988). The equal access defense, however, requires affirmative evidence that someone other than the defendant had an equal opportunity to commit the crime, and mere speculation that another may have had equal access to the automobile is not sufficient. Cochran v. State, 190 Ga. App. 884 (1) (380 SE2d 319) (1989). Further, this presumption applies particularly when, as in this case, the driver is also the owner of the automobile. Williams v. State, 129 Ga. App. 103, 106 (1) (198 SE2d 683) (1973). In any event, whether the equal access evidence is sufficient to rebut the inference of possession is a question for the jury. Cannon v. State, 211 Ga. App. 835, 836 (440 SE2d 723) (1994).

Decided April 28,1999.

William C. Davison, for appellant.

Michael H. Crawford, District Attorney, Robert D. Cullifer, Assistant District Attorney, for appellee.

In this appeal, Visser was alone in his automobile when arrested, and the box containing the marijuana was in plain view on the floor behind the bucket seat right next to where Visser was sitting. The evidence that someone else might have put the marijuana in the car was mere conjecture.

Consequently, review of all the evidence in the light most favorable to the verdict reveals ample evidence from which any rational trier of fact could find beyond a reasonable doubt that Visser was guilty of possession of marijuana with the intent to distribute. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Blackburn, P. J., and Senior Appellate Judge Harold R. Banke concur.


author: Eldridge, Judge.

text:
    A99A0637.
    THORBURN COMPANY v. ALLIED MEDIA OF GEORGIA, INC.
    (516 SE2d 833)
   Eldridge, Judge.

Plaintiff-appellant Thorburn Company (“Thorburn”) appeals the dismissal of its complaint against Allied Media of Georgia, Inc. (“Allied Media”). We affirm.

On March 6, 1995, Thorburn filed a complaint against Allied Media in the State Court of Hall County. The complaint alleged, inter alia, breach of contract and fraud. Allied Media is a foreign corporation which had been authorized to conduct business in Georgia and which had listed with the Secretary of State’s office a registered agent to receive service in Fulton County, Georgia. On March 13, 1995, Thorburn attempted but failed to effect service at the Fulton County office; he received a Return Non Est Inventus from the Fulton County Sheriff’s Office on March 13, 1995, stating that Allied Media had moved in 1993. Thorburn notified the Georgia Secretary of State’s office that Allied Media’s registered agent was not available to receive service, and, on July 23, 1995, the Secretary of State dissolved Allied Media’s corporate existence in this state for failure to file its annual registration.

In the meantime, on July 7, 1995, Thorburn sent a copy of the complaint by certified mail to Roger Amato, the only known officer of Allied Media, at his Woodstock, Vermont office; Amato acknowledged receipt of the complaint on July 11, 1995. On October 6, 1995, Allied Media answered the complaint and asserted, inter alia, lack of personal jurisdiction, improper venue, and insufficient service of process. See OCGA §§ 9-11-4 (d); 9-11-12 (b) (2), (3), (5); 14-2-510 (b) (1), (2).

Thorburn subsequently filed a motion for default judgment, which was granted on July 12, 1996. Thorburn did not notify Allied Media of the motion or the judgment thereon. Thorburn instituted garnishment proceedings on October 17, 1996, in Fulton County, thereby providing Allied Media’s first notice of the default judgment. On February 18,1997, Allied Media moved the trial court to set aside the default judgment under OCGA § 9-11-60 (d) (1), again asserting insufficient service of the underlying complaint and improper venue. After conducting two hearings, the trial court found that Thorburn had failed to properly serve Allied Media and granted the order to set aside the default judgment on September 18, 1997. In addition, the trial court noted that Hall County was an improper venue for this complaint.

Three weeks later, on October 10, 1997, the trial court dismissed the complaint without prejudice after finding that Thorburn had never perfected service, so that no suit had ever commenced. Thor-bum appeals from this dismissal. Held:

In his sole enumeration of error, Thorburn asserts that the State Court of Hall County erred in dismissing the case, contending instead that the trial court, upon finding that Hall County was the improper venue for this action, should have transferred the case to the proper venue, i.e., Fulton County, pursuant to Uniform Superior Court Rule 19.1. In making this assertion, Thorburn does not directly attack the trial court’s finding that Thorburn had never properly served Allied Media, nor does it claim that Allied Media waived its OCGA § 9-11-12 (b) pleas in abatement. Thorburn claims only that the decisions regarding personal jurisdiction and insufficient service should have followed the USCR 19.1 transfer. We disagree.

1. A suit commences only after the filing of a petition and the proper service of process upon the defendant as required and authorized by law. See OCGA §§ 9-11-3; 9-11-4 (c), (d), (e); 9-12-16; Lawrence v. Noltimier, 213 Ga. App. 628 (445 SE2d 378) (1994); Williams v. Colonial Ins. Co. of Ca., 199 Ga. App. 760 (406 SE2d 99) (1991); Hilton v. Maddox &c. Contractors, 125 Ga. App. 423 (188 SE2d 167) (1972); see also Franek v. Ray, 239 Ga. 282, 285 (236 SE2d 629) (1977). Service of the summons and the complaint together is required. OCGA § 9-11-4 (d); Stamps v. Bank South, N.A., 221 Ga. App. 406, 409 (471 SE2d 323) (1996) (holding that the acknowledgment of receipt of a complaint does not constitute sufficient service of summons or waiver of such service under OCGA § 9-11-4 or § 9-10-73); Jones v. Jones, 209 Ga. 861, 863 (76 SE2d 801) (1953). “[S]ervice of summons, unless waived, is required to notify a defendant of an impending action and his duty to respond within a specified time or incur judgment by default. Stamps v. Bank South, N.A., [supra at 408 (1)]; OCGA § 9-11-4 (b).” Atlanta Med. Accounting Corp. v. Financial Software, 227 Ga. App. 311-312 (489 SE2d 93) (1997); Jones v. Jones, supra at 862.

If service is perfected in accordance with statutory requirements, the date of service relates back to the date of filing, which establishes the date the action is commenced. Franek v. Ray, supra at 285. If service is never perfected and is not waived, the court does not acquire jurisdiction over the defendant and the suit is void, “since the filing of a complaint without perfecting service does not constitute a pending suit.” (Punctuation omitted.) Sparrow v. Che, 232 Ga. App. 184, 185 (1) (501 SE2d 553) (1998), citing Hobbs v. Arthur, 264 Ga. 359, 360 (444 SE2d 322) (1994). See also OCGA § 9-12-16; Jones v. Isom, 223 Ga. App. 7 (477 SE2d 139) (1996); Plumlee v. Davis, 221 Ga. App. 848 (473 SE2d 510) (1996); Stamps v. Bank South, supra at 409; Bigley v. Lawrence, 149 Ga. App. 249, 250 (253 SE2d 870) (1979). Accordingly, any judgment entered thereon is void. Lee v. G.A.C. Finance Corp., 130 Ga. App. 44, 45 (4) (202 SE2d 221) (1973).

In this case, the trial court set aside the default judgment after finding that Thorburn had never perfected service on Allied Media. Thé trial court found that “by not serving a summons along with the complaint to either [Allied Media] or the Secretary of State [pursuant to OCGA §§ 9-11-4 (d) and 14-2-1510], service was not properly perfected.” The trial court acts as factfinder in matters regarding the sufficiency of service. Kim v. Platt, 229 Ga. App. 92, 94 (493 SE2d 249) (1997). As there is no transcript of the hearing on the motion to set aside the default judgment, this Court must presume that the evidence presented supports the trial court’s findings of facts in its order setting aside the judgment. Giffen v. Burrell, 176 Ga. App. 278, 279 (1) (335 SE2d 616) (1985); Miller v. Grier, 175 Ga. App. 91 (332 SE2d 323) (1985); Peek v. Duffy, 172 Ga. App. 834 (324 SE2d 795) (1984). Accordingly, there was no error in the trial court’s grant of Allied Media’s motion to set aside the default judgment after finding that Thorburn had never perfected service.

Decided April 28,1999.

Banks, Stubbs & Neville, Rafe Banks III, for appellant.

Stewart, Melvin & Frost, J. Douglas Stewart, for appellee.

2. Further, based on such finding, the trial court determined that the suit had never “commenced” and, therefore, must be dismissed. Contrary to Thorbum’s argument that the case should have been transferred to the proper venue before considering the issue of insufficient service, this Court finds that, until service is perfected or waived, there is no “pending civil action” to transfer pursuant to USCR 19.1.

Accordingly, there was no error.

Judgment affirmed.

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

       The transcripts of the hearings were not included in the record.

       There is no dispute as to whether Fulton County is the proper venue for this action.

       Under Uniform Superior Court Rule 19.1, a timely motion in any pending civil action which asserts that venue is improper shall be treated as a motion to transfer the case to the proper court.


text:
    A99A0674.
    HUNTER v. THE STATE.
    (517 SE2d 534)
   Barnes, Judge.

A jury convicted Timothy Hunter of aggravated sexual battery, child molestation and cocaine possession, and the trial court sentenced him to serve 13 years. The trial court then resentenced Hunter on its own motion, because he had been tried as a recidivist and the initial sentencing was void. Hunter appeals, enumerating three errors: the trial court’s refusal to sever the drug charge from the molestation and battery charges; its refusal to grant a continuance when a material witness failed to appear; and its failure to consider probating part of the sentence when resentencing Hunter. We disagree and affirm.

The evidence shows that a first-grade teacher noticed one of her pupils was upset and crying after she returned from the bathroom one morning. Upon investigation, the teacher found dried blood on the little girl’s panties and fresh blood oozing from her rectum. The school principal called the Department of Family & Children Services, and a caseworker and investigator came to the school to talk to the child. She gave jumbled, inconsistent answers about what happened to her, repeating that she was afraid her mother would whip her if she told the truth. They called her mother to come to the school, then took the girl to a pediatrician, who testified that the child had a raw area around her anus, an enlarged vaginal opening, an abnormally thin hymen, and a raw area inside her vagina. These signs were consistent with penetration of some sort, the doctor stated, and some of the injuries would have occurred within the previous 24 hours.

The investigator and social worker then interviewed the child again, and after her mother assured her she would not be spanked, she named Timothy Hunter as the person who had injured her. She told the social worker Hunter took “a round thing out of his pocket and poked a hole in it and put a long thing like a string and that he put it in her front and back.” The social worker said the child became very frustrated trying to describe the thing that came out of Hunter’s pocket.

Hunter was indicted and had two condom containers in his pocket when he was arrested later that day. One of the containers had cocaine residue on it, which led to the drug charge of which Hunter was convicted. The investigator then showed the victim three different items and asked if any of them were the same as the thing Hunter took out of his pocket when he molested her. She chose the container like the one Hunter had in his pocket on arrest. When asked what Hunter did with it, she opened the container, took out a condom and “promptly” slid it onto the investigator’s finger, he testified. The child also demonstrated to the jury how Hunter put a condom on his finger and described how he then “stuck it in her private parts and in her butt.”

1. Hunter first argues that the trial court should have severed the cocaine count from the molestation and sexual battery counts, because the drug possession had nothing to do with the other two counts except that he had the contraband in his possession when he was arrested. None of the three prosecution witnesses on the cocaine charge, who were heard first, testified about the molestation charges, and none of the molestation witnesses testified about the cocaine offense.

Our Supreme Court recently ruled on a similar issue, in which the appellant argued the trial court erred in refusing to sever a drug charge from murder and burglary charges. In Miller v. State, 270 Ga. 741 (512 SE2d 272) (1999), a police officer stopped the appellant, who matched the description of the offender, patted him down, and found less than an ounce of marijuana in his pocket. The Supreme Court held:

Where, as here, the joinder of charges is based on the fact that the charges comprise a series of connected acts, whether to sever the charges for trial is a matter for the trial court’s discretion. The trial court does not abuse its discretion in denying a severance motion where evidence of one charge would be admissible in the trial of the other. Evidence of the circumstances of a defendant’s arrest is admissible in the trial of the charge for which he was arrested. When the circumstances of that arrest result in additional criminal charges, it is not an abuse of discretion to refuse to sever the trial of those charges from the trial of the charge for which appellant was arrested. Accordingly, the trial court did not abuse its discretion in denying the motion to sever the charges.

(Citations omitted.) Id. at 744. In the case before us, the condom package with the cocaine residue was found during Hunter’s arrest, and therefore evidence concerning the package was admissible. We conclude that the trial court did not abuse its discretion in denying Hunter’s motion to sever the cocaine charge from the molestation charges.

2. Hunter next contends that the trial court erred in refusing to grant him a continuance when a witness failed to appear. On the second day of trial, Hunter called Lucille Ziegler to the stand, then informed the court that Ziegler, who had been subpoenaed, had left the state and did not intend to be there that day. Hunter moved for a continuance. The trial court denied the motion, finding that Ziegler’s testimony would be cumulative or for impeachment purposes only.

Under OCGA § 17-8-25, a party applying for a continuance based on failure of a witness to appear must show the court the following: the witness is absent, has been subpoenaed, does not reside more than 100 miles from the place of trial, is not absent by permission of the applicant, has material testimony and will appear at the next term of the court. The applicant must also show that the application is not made for the purpose of delay and must state the facts expected to be proved by the absent witness. We review for abuse of discretion a trial court’s ruling on a motion for continuance. Pickens v. State, 225 Ga. App. 792, 798 (3) (b) (484 SE2d 731) (1997).

Hunter failed to prove each of the requirements in OCGA § 17-8-25.

Even assuming that the other statutory terms for the granting of a continuance were met, it affirmatively appears that the requirement, “that the applicant expects he will be able to procure the testimony of the witness at the next term of the court,” was not fulfilled.

Thompkins v. State, 257 Ga. 113 (356 SE2d 207) (1987). All Hunter said about the location of his absent witness was that she had attended trial every day previously, but had gone to Florida and did not intend to be there that day. The trial court did not abuse its discretion in denying Hunter’s motion for continuance.

3. Finally, Hunter argues that the trial court erred in failing to consider probating part of his sentence. The trial court initially sentenced Hunter to serve 13 years on each count, to be served concurrently. However, the State had placed Hunter on notice that he was being tried as a recidivist under OCGA § 17-10-7, and the trial court resentenced Hunter on its own motion to serve 20 years on Counts 1 and 2, and 15 years on Count 3. While Hunter concedes that the court’s initial sentencing was void, he argues that the trial court erred because it thought it could not probate any portion of the sentence. Since the court initially sentenced Hunter to serve 13 years, he argues, then if it had realized it had the authority to probate a portion of the sentence under OCGA § 17-10-7, it would have re-sentenced him to serve 13 years with the balance on probation.

At the re-sentencing hearing, the trial court stated that its original sentence was void and it could bring Hunter back for re-sentencing, relying on Wallace v. State, 175 Ga. App. 685, 686 (5) (333 SE2d 874) (1985). In Wallace, this Court affirmed a trial court that voided a sentence invalid under OCGA § 17-10-7 and resentenced the defendant, although that case involved a life sentence in which probation was not available.

In this case, the trial court stated at the resentencing that OCGA § 17-10-7 (a), (c) “provides that [he] be sentenced to undergo the longest period of punishment prescribed and that [he] will not be eligible for parole or any other sentence reduction.” Hunter is correct that the trial court could have sentenced him to serve part of his mandatory sentence on probation, had he chosen to do so. Banks v. State, 225 Ga. App. 754, 756-757 (5) (484 SE2d 786) (1997). However, unlike the trial court in Banks, which indicated in colloquy that it believed it could not probate any portion of the sentence and was not required to impose the maximum sentence, the trial court here never indicated that it could not consider probation after hearing Hunter’s argument and citations at the resentencing hearing. That the trial court did not probate part of Hunter’s sentence is not dispositive; it did not probate any of his sentence the first time either.

In the absence of any affirmative showing to the contrary, the trial court is presumed to have exercised its discretion in imposing appellant’s sentence. Appellant had no viable cause for complaint that, in the exercise of its discretion, the trial court declined to probate or suspend a portion of the recidivist sentence. [Cit.]

Hatcher v. State, 224 Ga. App. 747, 751 (2) (b) (482 SE2d 443) (1997). Under these circumstances, we find no error in the trial court’s sentence.

Decided April 28,1999.

Robert L. Beckstrom, for appellant.

J. David Miller, District Attorney, A. Scott Gunn, Assistant District Attorney, for appellee.

Judgment affirmed.

Blackburn, P. J., and Senior Appellate Judge Harold R. Banke concur.


author: Blackburn, Presiding Judge.

text:
    A99A0814.
    BURRIE v. THE STATE.
    (516 SE2d 842)
   Blackburn, Presiding Judge.

Donald Lee Burrie appeals his conviction, following a jury trial, for driving under the influence of alcohol, contending that the trial court erred in denying his motion for a directed verdict of acquittal and that the evidence was insufficient to support the verdict. For the reasons set forth below, we affirm.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Burrie] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The standard for reviewing a denial of a motion for a directed verdict of acquittal is whether under the rule of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense. Moreover, the test established in Jackson is the proper test for us to use when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new trial based upon alleged insufficiency of the evidence.

(Citations and punctuation omitted.) Lester v. State, 226 Ga. App. 373, 376 (2) (487 SE2d 25) (1997).

The record shows that Officer Michael Long was dispatched to the scene of a single-car accident on September 25, 1997. When Officer Long arrived, he found Burrie and two other people standing around the car which had been driven into a ditch. Officer Long immediately asked who had been driving the car, and Burrie replied that he had been driving. As Officer Long approached Burrie, he detected the strong smell of an alcoholic beverage on Burrie’s breath. Burrie was also mumbling and unsteady on his feet, and he failed two field sobriety tests. Officer Long then arrested Burrie, and Burrie refused to submit to a breath test. This evidence was ample to support the jury’s verdict against Burrie, and accordingly, the trial court did not err in denying his motion for directed verdict.

Decided April 28,1999.

Fletcher W. Griffin III, for appellant.

N Stanley Gunter, District Attorney, William J. Langley, Assistant District Attorney, for appellee.

Burrie spuriously argues that, although he told Officer Long at the scene that he had been driving the car, there was no testimony or evidence that he had been driving the car at the time of the accident. In other words, Burrie contends that his answer could have referred to some point in time remote from the date of the accident. The trial court and the jury properly rejected this argument, and based on the evidence of record, we affirm.

Judgment affirmed.

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


author: Judge Harold R. Banke.

text:
    A99A0104.
    NUNEZ v. THE STATE.
    (516 SE2d 357)
   Judge Harold R. Banke.

Agustin Nunez was convicted of two counts of cruelty to children. He enumerates seven errors on appeal.

This case arose after Nunez and his wife (and codefendant) drove their two-year-old daughter to the emergency room of their local hospital. The child was near death due to a tear in her small intestine usually caused by “a very focused, discrete, forceful blow to the upper abdomen.” Over time, waste had emptied into her abdominal cavity, causing it to become infected and swell noticeably. Her doctor theorized that the injury had occurred as long as three days before and serious distress would have been apparent at least a day after the injury. Nurses observed severe bruising on her back, buttocks, legs and hands and scratches on the child’s face. X-rays revealed a rib fracture, broken clavicles on both the right and left, and fractures of both the upper arm and left elbow. Many of these injuries had occurred at different times over a three week period.

After emergency resuscitation, the child underwent surgery to correct the intestinal tear. Emergency room personnel contacted law enforcement and the Department of Family & Children Services, suspecting child abuse. After an investigation, both Nunez and his wife were arrested. The two count indictment charged Nunez with (1) causing the injuries and (2) failing to seek medical care. Held:

1. The evidence, viewed in the light most favorable to the verdict, is sufficient to satisfy each element of the charges. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Cruelty to children requires proof that the accused maliciously caused cruel or excessive physical or mental pain to a child under the age of 18. OCGA § 16-5-70 (b). The child’s treating physician testified that “[t]he combination of the type of injury that she had to her abdomen, the length of time that she had had that injury, her overall physical state with the kidney failure and stopping breathing, the bruises from head to toe, the fractures from multiple time periods” left “no doubt” that she had been physically abused. He also testified that in a significant number of cases, immediate family members inflict such abuse and if anyone else had inflicted the types of injury the child had, the family would have sought immediate medical attention.

The record further shows that Nunez, his wife, and the child lived in a small apartment and that the child slept in the same room with her parents. Nunez admitted that he had been with the child until around 2:30 p.m. the day before she was hospitalized. Around 9:00 p.m., the wife called Nunez at work to tell him the baby was sick and she needed him. Although he left work, he did not seek medical attention for the child until after 8:00 a.m. the next morning, although the child’s suffering was apparent. When Nunez dropped his wife and baby at the hospital, he did not enter the emergency room, but waited outside in the ambulance bay. The record shows that Nunez used a false name and gave conflicting reports on his whereabouts on the night before the child was hospitalized.

During the investigation, the wife attempted to inculpate a babysitter. However, she could not give an address or location for the babysitter, notwithstanding the fact that she told detectives that she had dropped the child off at the babysitter’s home. Although authorities located a woman with the same name Nunez’s wife gave them, she did not match the description. When confronted with this fact, the wife gave another name, but no one matching that description was found.

The record shows that neither parent filed a complaint against the alleged babysitter and that many of the baby’s injuries occurred over several weeks, a period in which Nunez was present in the household, not during the short time span the babysitter purportedly kept the child. It also shows that the child would have been in obvious pain during that time. The evidence against Nunez, while not overwhelming, was sufficient to permit the jury to find that he was, at a minimum, a party to the crimes. OCGA § 16-2-20 (b) (3).

2. Nunez seeks reversal due to the trial court’s failure to charge that the jury had the option to find one codefendant guilty and the other not guilty on either or both of the charges.

In cases with multiple defendants, our Supreme Court encourages trial courts “to give a separate instruction which details the jury’s duty to consider each charge in the indictment against each defendant separately and which reminds the jury that the guilt of one defendant does not require the return of a guilty verdict against the other defendant.” Nicholson v. State, 265 Ga. 711, 714 (3) (462 SE2d 144) (1995). To determine whether the absence of this unrequested instruction harmed Nunez, the charge must be considered in its entirety. Id. at 713.

Here, the trial court charged on mere presence and parties to a crime. It also reminded the jury that “you have two defendants and . . . two counts and each of these is a case. Each count is a case against each of these defendants and you should make a verdict as to each defendant and as to each count.” Later, in discussing the verdict form, which set out the separate counts for each defendant, it reiterated that “you have two defendants and you should let your verdict speak to that very clearly.” While a charge reflecting that the conviction of one defendant did not necessarily require the conviction of the other is certainly preferable, we find no reversible error here. Id.

3. Nunez claims the trial court erred in excluding the deposition testimony of Dr. Hawkins, who had been subpoenaed but failed to appear for trial. Nunez maintains Dr. Hawkins was unavailable and the exclusion of his deposition testimony that the bruises covering the baby’s body could have been caused by lividity from the abdominal injury rather than beatings violated his right to confrontation and to present evidence.

The record shows that at the direction of counsel for Nunez’s wife, local law enforcement delivered a subpoena for Dr. Hawkins to the director of the emergency room where he worked at sometime during the afternoon before he was called as a witness. Dr. Hawkins came into work later that evening, but counsel was unsure whether he received the subpoena. After hearing these details, the trial court sustained the State’s objection to the admission of Dr. Hawkins’ deposition, observing, “I guess technically speaking, he was not subpoenaed.” Counsel responded, “Not by the defense, your honor, that I can tell. The Sheriffs office left it with someone other than him.”

Assuming without deciding that Nunez may properly assert this argument, a party seeking the admission of prior testimony must show that the witness is unavailable. Rivers v. State, 265 Ga. 694, 696 (5) (461 SE2d 205) (1995). The record shows that Dr. Hawkins was at work in the local emergency room the day before the trial. Absent a showing that the witness could not with due diligence be found within the State, we cannot say the trial court’s refusal to admit such testimony was an abuse of discretion. Id. Moreover, it appears that defense counsel acquiesced to the trial court’s ruling. Cherry v. State, 230 Ga. App. 443, 445 (3) (496 SE2d 764) (1998).

4. Nunez argues that the trial court erred in denying his motion to sever his trial from his wife’s to permit the admission of his written custodial statement inculpating his wife and partially exonerating himself. Notwithstanding the State’s successful objection to its admission on the ground that it contained self-serving hearsay, Nunez maintains that the statement was admissible as an “admission against penal interest” because it showed he failed to seek timely medical assistance. We disagree.

It is well-settled that self-serving statements made by the accused, either before or after the commission of the alleged offense, are inadmissible hearsay. Smith v. State, 144 Ga. App. 294 (1) (241 SE2d 14) (1977); Lane v. Tift County Hosp. Auth., 228 Ga. App. 554, 560-561 (2) (492 SE2d 317) (1997); see also Turner v. State, 267 Ga. 149, 154 (3), n. 3 (476 SE2d 252) (1996) (Georgia does not recognize declarations against penal interest as an exception to the hearsay rule).

Moreover, defendants seeking severance must show more than the mere possibility that a separate trial would have provided a better chance of acquittal. Berry v. State, 267 Ga. 605, 611 (9) (481 SE2d 203) (1997). Nunez’s failure to clearly demonstrate prejudice and a concomitant denial of due process precludes a finding that the trial court abused its discretion in denying the motion to sever. Id.

5. Nunez maintains the trial court erred in admitting out-of-court statements he made to an investigator through an interpreter who was not called as a witness. Having reviewed the record, we find that Nunez failed to articulate a specific objection to the admission of the officer’s testimony or the State’s failure to call the translator. Perry v. State, 214 Ga. App. 444, 445 (1) (448 SE2d 74) (1994).

Judgment affirmed.

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

Decided April 13,1999

Reconsideration denied April 29,1999

Roland R. Castellanos, for appellant.

Kermit N. McManus, District Attorney, Stephen E. Spencer, Dixon A. Lackey III, Assistant District Attorneys, for appellee.

       In several enumerations, Nunez raised the general grounds. See Stinson v. State, 185 Ga. App. 543, 544 (364 SE2d 910) (1988) (asserting the general grounds results in consideration only of the sufficiency of the evidence).

       Nunez’s statement indicated that when he arrived home from work, the child was vomiting and very ill, and his wife told him the babysitter had hit her. Nunez also stated that his wife had hit the child five times with a belt before he left for work and 10 or 12 times on several other occasions.


text:
    A99A0398.
    BATES v. THE STATE.
    (515 SE2d 666)
   Barnes, Judge.

Eric E. Bates was convicted of aggravated assault, criminal damage to property, and possession of a firearm during the commission of a crime and acquitted of two counts of armed robbery. He appeals, contending that insufficient evidence supports the jury’s convictions. We disagree and affirm.

1.

[0]n 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. Conflicts in the testimony of the witnesses [are] a matter of credibility for the jury to resolve.

(Citations and punctuation omitted; emphasis supplied.) Taylor v. State, 226 Ga. App. 254, 255 (485 SE2d 830) (1997). Construed to support the verdict, the evidence shows that Officer Michael Green responded to a call to go to Colorado Street in Columbus regarding a shooting. He testified that when he reached the scene, he saw a man later identified as Bates standing in the street. Witnesses said the man in the street had just fired some shots. He chased that person for a time but lost him, he said. When he returned to the scene he saw Roderick Adams lying in a pool of blood behind his patrol car. After an ambulance took Adams away, Officer Green helped police technicians mark and photograph shell casings on the ground around the house. He then entered the house and saw bullet holes in the walls and blood in the kitchen and living room. Green testified that William Lee Tucker, who also lived at the house on Colorado Street, told him Bates shot Adams and was the person running from the scene. Finally, Green testified that he found no firearms or live ammunition in the house and no evidence that a gun had been fired from inside the house.

Decided April 7,1999

Reconsideration dismissed April 29,1999.

Hagler, Hyles, Adams & Hix, Clark C. Adams, Jr., for appellant.

Roderick Adams testified that Bates robbed him and his brother, William Tucker, at gunpoint the evening before the shooting. The next morning Adams saw Bates coming down the street and went inside to wake Tucker. He stuck his head out of the door and heard Bates firing a gun, so he ran to the back of the house. He was planning to escape out the back door, but bullets were coming into the house from all directions so he could not exit. Adams testified that he was shot in the thigh and finger. Tucker corroborated Adams’ testimony regarding the armed robbery and the shooting incident and added that he pointed Bates out to Officer Green as the shooter. Both Adams and Tucker said they never shot at Bates.

Detective Steven L. Wurst testified that he investigated the scene at Colorado Street and found 13 rounds of shell casings all around the house. Wurst also found no firearms in the house and smelled no gun powder that would indicate a gun had been fired from inside.

Finally, the prosecution presented three witnesses who testified about two similar transactions involving firearms, in which Bates pled guilty to aggravated assault charges.

Bates argues that the jury must not have believed the two victims since it acquitted him of the armed robbery charges. Therefore, he asserts, the remaining evidence against him did not exclude the possibility that he fired the shots in self-defense, as he testified, and his conviction should be reversed. However, the jury was free to believe the witnesses’ testimony that Bates was the shooter and. disbelieve their testimony that Bates robbed them at gunpoint the night before the shooting. Miasso v. State, 191 Ga. App. 222, 223 (381 SE2d 315) (1989).

We find the evidence sufficient for a rational trier of fact to find Bates guilty beyond a reasonable doubt of aggravated assault, criminal damage to property in the first degree, and possession of a firearm during the commission of a crime. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Blackburn, P. J, and Senior Appellate Judge Harold R. Banke concur.

J. Gray Conger, District Attorney, Roger H. Anderson, Assistant District Attorney, for appellee.


text:
    A99A0731.
    WILLIAMS v. THE STATE.
    (515 SE2d 875)
   Blackburn, Presiding Judge.

George Warren Williams appeals from his conviction of aggravated battery, following a jury trial, contending that the trial court erred by: (1) denying his motion for directed verdict of acquittal; (2) prohibiting him from introducing evidence of acts of violence by the victim; and (3) improperly recharging the jury on aggravated battery. For the reasons set forth below, we affirm.

1. Williams contends the trial court erred by denying his motion for directed verdict of acquittal, asserting that Count 1 of the indictment, aggravated battery, was defective because it failed to set out the manner in which the victim was injured. See England v. State, 232 Ga. App. 842, 844 (2) (502 SE2d 770) (1998) (an indictment charging a crime which is capable of being committed in more than one way but fails to charge the manner in which the crime was committed is subject to challenge). The indictment accused Williams, in relevant part, of “maliciously [causing] bodily harm to Samuel Bur-son by rendering a member of his body useless, to wit: did paralyze his legs.” “A motion for directed verdict of acquittal is not the proper way to contest the sufficiency of an indictment. A motion for a directed verdict of acquittal addresses the sufficiency of the evidence, not the sufficiency of the underlying indictment. (Cit.)” (Punctuation omitted.) McKay v. State, 234 Ga. App. 556, 559 (2) (507 SE2d 484) (1998). Typically, a challenge to an indictment is made through a demurrer to the indictment. See McKay, supra. Thus,

“the only issue we have presented for review is the propriety of the denial of [Williams’] motion for a directed verdict of acquittal as to [aggravated battery]. This issue is determined, not by the sufficiency of the [indictment], but by whether the evidence adduced at trial demanded a verdict of ‘not guilty.’ ”

Echols v. State, 187 Ga. App. 870, 872 (371 SE2d 682) (1988).

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Williams] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The standard for reviewing a denial of a motion for a directed verdict of acquittal is whether under the rule of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense.

(Punctuation omitted.) Dill v. State, 235 Ga. App. 265, 266 (508 SE2d 739) (1998).

Williams does not challenge the sufficiency of the evidence supporting the conviction of aggravated battery in his brief. Our independent review of the record shows that the evidence was sufficient to go to a jury and to authorize the jury’s finding that Williams was guilty beyond a reasonable doubt of aggravated battery. See Jackson v. Virginia, supra.

2. Williams contends the trial court erred by ruling that he could not introduce evidence of acts of violence by the victim towards another defendant. “The admission of evidence is committed to the sound legal discretion of the presiding judge, whose determinations will not be disturbed on appeal unless they constitute an abuse of that discretion.” Conyers v. State, 234 Ga. App. 830, 832 (1) (507 SE2d 842) (1998).

(a) Generally, a victim’s character is not admissible evidence. However, there is an exception when the defendant is asserting a claim of justification:

Under this exception, a defendant may present evidence of the victim’s specific acts of violence against the defendant and third persons. Such evidence is admissible to show the victim’s character for violence or tendency to act in accordance with his or her character as it relates to the defendant’s claim of justification.

(Punctuation and footnotes omitted.) Owens v. State, 270 Ga. 199, 201 (2) (509 SE2d 905) (1999). See Uniform Superior Court Rule 31.6. In this case, the evidence of the victim’s violent acts does not fall within the exception because it is undisputed that Williams was not claiming justification. The trial court properly excluded the evidence.

Decided April 8,1999

Reconsideration denied April 29,1999.

William I. Sykes, Jr., for appellant.

N. Stanley Gunter, District Attorney, for appellee.

(b) The trial court properly excluded the evidence for the additional reason that Williams failed to give notice of his intent to introduce such evidence in accordance with Uniform Superior Court Rules 31.1 and 31.6. Pursuant to Rule 31.6, a defendant who is asserting a claim of justification must, ten days prior to trial, give the State notice of his intent to introduce evidence of specific acts of violence by the victim. Compliance with the rule is mandatory. Johnson v. State, 270 Ga. 234, 235 (3) (507 SE2d 737) (1999). Williams failed to give the requisite notice. The trial court did not abuse its discretion in refusing to admit the evidence. See Johnson, supra.

3. Williams argues the trial court erred when, at the jury’s request, it recharged the jury on aggravated battery, contending that the recharge confused the jury. “[T]he extent and character of any supplementary instructions [to the jury] are within the discretion of the court.” Tyson v. State, 217 Ga. App. 428 (1) (457 SE2d 690) (1995).

This court must consider both the initial charge and the recharge to determine whether a recharge contains error. Miller v. State, 221 Ga. App. 718, 719 (1) (472 SE2d 697) (1996). Here, the trial court properly and fully instructed the jury on aggravated battery in the initial charge: “As to the offense of aggravated battery, I charge you that a person commits the offense of aggravated battery when he maliciously causes bodily harm to another by rendering a member of that person’s body useless.” See OCGA § 16-5-24; Pollard v. State, 230 Ga. App. 159 (495 SE2d 629) (1998).

When the trial court recharged the jury, it restated the initial charge. Although no additional instructions were given, it is within the discretion of the trial court whether to give additional instruction not contained in the original charge. Ross v. State, 231 Ga. App. 506, 508 (2) (499 SE2d 351) (1998). Reviewing the recharge and the charge as a whole, we conclude that the trial court properly charged the jury on aggravated battery.

Judgment affirmed.

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

       A demurrer is either general, which attacks the validity of the indictment, or special, which attacks the form of the indictment. See State v. Eubanks, 239 Ga. 483, 486 (238 SE2d 38) (1977). A general demurrer may be raised at any time, but a special demurrer must be raised before pleading to the indictment or the right to be tried upon an indictment which is perfect in form and substance is waived. McKay at 558.

       The co-defendant filed a notice of intent to introduce evidence of the victim’s acts of violence which was signed by Williams’ counsel. However, that notice applied only to the defense of the co-defendant and the introduction of acts of violence against her.


author: Pope, Presiding Judge.

text:
    A99A0008.
    DAVIS v. THE STATE.
    (517 SE2d 87)
   Pope, Presiding Judge.

Robert Trent Davis was convicted by a jury of driving under the influence of alcohol with a blood alcohol content exceeding 0.02 grams pursuant to OCGA § 40-6-391 (k). He appeals following the denial of his motion for new trial.

The transcript shows that a police officer responding to a burglary call found Davis driving his car up a private driveway toward the public roadway. Davis, who was 20 years old at the time of the incident, testified that he had been drinking at the home of a friend, and set off the burglar alarm when he went outside to get clothes out of his car. Davis testified that he tried to move his car up the driveway because he thought the motion of opening the car doors had set off the alarm, and that he never intended to drive his car onto the public roadway. The officer responding to the call testified that he turned on his blue lights and Davis stopped with the nose of his vehicle just in the roadway. Two of the officers at the scene testified there was a strong odor of alcoholic beverage coming from Davis and his vehicle. Davis admitted that he had been drinking and that he had consumed too much alcohol to drive. After field sobriety and alcosensor tests indicated Davis was intoxicated, he was placed under arrest for driving under the influence and read implied consent warnings.

Davis agreed to take a breath test and was transported to the police department and tested on the Intoxilyzer 5000. The officer testified that the Intoxilyzer 5000 requires two breath samples to make up one test, and that the lower of the two readings from each test is the one used for purposes of determining the level of alcohol concentration. The officer also testified that a test is considered “outside the parameters” and cannot be used against the person taking the test if the two breath samples are more than 0.020 grams apart.

The officer further testified that three tests were administered to Davis. According to the officer and other evidence presented at trial, the first two tests yielded results which were outside the parameters, although breath samples sufficient to produce printed results were produced on both tests. The third test administered to Davis produced results within the parameters and indicated an alcohol concentration of.182.

1. Davis contends the trial court erred by denying his motion in limine to exclude the results of the breath test because the officer was authorized to conduct only two breath tests. We agree and reverse.

OCGA § 40-6-392 (a) (1) (B) provides in pertinent part as follows:

In all cases where the arrest is made on or after January 1, 1995, and the state selects breath testing, two sequential breath samples shall be requested for the testing of alcohol concentration. For either or both of these sequential samples to be admissible in the state’s or plaintiff’s case-in-chief, the readings shall not differ from each other by an alcohol concentration of greater than 0.020 grams and the lower of the two results shall be determinative for accusation and indictment purposes and administrative license suspension purposes. No more than two sequential series of a total of two adequate breath samples each shall be requested by the state', provided, however, that after an initial test in which the instrument indicates an adequate breath sample was given for analysis, any subsequent refusal to give additional breath samples shall not be construed as a refusal for purposes of suspension of a driver’s license under Code Sections 40-5-55 and 40-5-67.1. Notwithstanding the above, a refusal to give an adequate sample or samples on any subsequent breath, blood, urine, or other bodily substance test shall not affect the admissibility of the results of any prior samples. An adequate breath sample shall mean a breath sample sufficient to cause the breath-testing instrument to produce a printed alcohol concentration analysis.

(Emphasis supplied.)

The trial court denied Davis’ motion to exclude the results of the breath test by finding that the first two tests, which were outside the parameters, did not produce adequate breath samples. This ruling was erroneous. The statute plainly defines an adequate breath sample as “a breath sample sufficient to cause the breath-testing instrument to produce a printed alcohol concentration analysis.” In this case it is undisputed that both the first and second tests administered to Davis produced printed alcohol concentration analyses. The statute also clearly provides that no more than two tests, consisting of two breath samples each, can be requested by the state. The state was thus without authority to conduct a third breath test on Davis and the trial court should have granted Davis’ motion to exclude the results of this test. Davis’ conviction for driving with an unlawful blood alcohol concentration pursuant to OCGA § 40-6-391 (k) must therefore be reversed.

2. Based on our holding in Division 1, it is unnecessary for us to consider Davis’ remaining enumeration of error.

Judgment reversed.

Smith and Eldridge, JJ, concur.

Decided April 29,1999.

James S. Garner III, for appellant.

Tambra P. Colston, District Attorney, Martha P. Jacobs, Fred R. Simpson, Harold W. Goldin, Jr., Assistant District Attorneys, for appellee.


text:
    A99A0096.
    WESTMINSTER HOLDINGS, LTD. v. WEATHERSPOON.
    (517 SE2d 80)
   Pope, Presiding Judge.

Westminster Holdings, Ltd. sued Jennette Weatherspoon for breach of contract and fraud in connection with the sale of Weather-spoon’s property. The trial court granted Weatherspoon’s summary judgment motion on both claims. Westminster appeals, and we affirm.

Westminster is a corporation engaged in the business of renovating real property for re-sale, and Weatherspoon is a licensed real estate agent. On or about February 4, 1997, Westminster entered into a Purchase and Sale Agreement (the “Agreement”) to purchase residential property from Weatherspoon at a price of $38,000. The Agreement provided that the sale was contingent upon Westminster’s inspection of the property. After the inspection, Westminster was to furnish Weatherspoon any proposed amendment to the Agreement, along with a copy of the inspection report. The Agreement’s inspection provision also stated, “Notwithstanding anything contained herein to the contrary, Seller’s responsibility in connection with the Property shall cease at closing, and closing shall constitute Buyer’s acceptance of the Property unless provision is otherwise made in writing.”

The Agreement further provided that Weatherspoon would have the property inspected by a pest control service. The Agreement stated,

If visible evidence of active or previous infestation is indicated, Seller agrees to, prior to closing, (A) treat said infestation and correct structural damages resulting from said infestation and provide documentation evidencing correction of same and/or (B) provide documentation, satisfactory to lender (if applicable), indicating that there is no structural damage resulting from any previous infestation.

(Emphasis supplied.)

Subsequently Westminster conducted its inspection of the property in accordance with the Agreement and discovered certain matters for repair. Although Westminster submitted a proposed amendment to the contract reducing the purchase price to $31,000, it never submitted an inspection report to Weatherspoon as required by the contract. Weatherspoon did not agree to the proposed amendment. Later, however, the parties entered into a letter amendment providing, in part, that Westminster was purchasing the property in an “ ‘as is’ condition, except that Seller shall (i) remain obligated to repair all damage as specified in the termite and wood infestation provisions of the Contract, and (ii) be obligated to deliver at closing a clean termite letter in the form specified in the Contract.” (Emphasis supplied.) The parties also agreed to close their transaction on April 15, 1997.

On the scheduled day, although Weatherspoon did not appear for the closing, she faxed Westminster an Official Georgia Wood Infestation Inspection Report, which stated termites and beetles had previously infested the property. While the report indicated that it was “not intended as a structural report,” it noted that any “evidence of infestation may be synonymous with damage.” It further stated that “[i]f visible evidence of active or previous infestation is reported, it should be assumed that some degree of damage is present and a diagram identifying the structure [s] inspected and showing the location of such evidence must be attached to this form.” The second page contained a diagram showing evidence of prior termite and powder beetle infestation and a handwritten notation stating “Damage under bathroom areas — foundation walls” resulting from the previous termite infestation.

On April 16, 1997, after Weatherspoon did not appear at the prior day’s closing, Westminster filed, but did not serve, a lawsuit seeking specific performance of the Agreement, fraud and breach of contract.

The transaction ultimately closed on April 18, 1997.

1. Westminster’s first three enumerations argue that the trial court erred in granting summary judgment on its breach of contract claim. Westminster argues that it was error to hold that it waived its claims for breach of contract when it agreed to proceed to closing without requiring full performance by Weatherspoon.

The parties’ original Agreement obligated Weatherspoon to repair any structural damage and provide written documentation of the repairs prior to closing. The subsequent letter amendment reiterated that Weatherspoon was to abide by the termite inspection provision of the original Agreement, i.e., that she was to repair any structural damage prior to closing.

Westminster received a termite letter noting prior infestation and possible structural damage on April 15. Weatherspoon never furnished any documentation showing that this structural damage had been corrected as required by the Agreement. Nevertheless, on April 18, Westminster knowing that Weatherspoon had not fulfilled her obligations under the Agreement, proceeded with the closing.

[Westminster] inspected the termite letter before the closing and knew then that it did not conform [with the parties’ Agreement]. [Westminster] could have delayed the closing until [it] felt confident that the termite problem was under control or [it] could have chosen not to close. [It] did neither. By proceeding with the closing, [it] waived any right [it] may have had under the contract pertaining to the termite clearance letter.

Davi v. Shubert, 168 Ga. App. 420, 421 (A) (309 SE2d 415) (1983) (finding that purchasers waived their rights where the inspection report showed evidence of active termite infestation); Leeuwenburg v. Clark, 228 Ga. App. 615 (492 SE2d 263) (1997) (finding seller’s duties to repair structural damage waived where buyer failed to demand documentation before closing evidencing repair of any structural damage resulting from a termite infestation as required by the contract).

Westminster argues this case is distinguishable from Leeuwenburg and Davi, because the parties signed a closing document stating, in part, “As part of the consideration of this sale, the contract between the parties is by reference incorporated herein and made a part hereof; the terms and conditions contained therein shall survive the closing and shall not merge upon delivery of the Warranty Deed.” Westminster argues that under this clause Weatherspoon’s obligation to repair survived the closing.

However, the sales agreement in Leeuwenburg also contained a survival clause. Leeuwenburg v. Clark, 228 Ga. App. at 616. We held that

[b]ecause the Sales Agreement [there] specifically required the sellers to perform the obligations at issue prior to closing, and the buyers were aware of the breach before closing, the buyers waived such performance by proceeding with closing. ... A survival clause in the Sales Contract cannot breathe life into a contract where, as here, the provision has been previously waived.

Id. The fact that the survival clause in this case was in a closing document makes no difference. The termite inspection provision here also required performance prior to closing. The survival clause cannot “breathe life” into this provision where Westminster waived its rights by closing without requiring performance.

Decided April 29,1999.

Kitchens, Kelley & Gaynes, David F. Cooper, for appellant.

Hardigg & Hardigg, Glenda W. Hardigg, for appellee.

We also disagree with Westminster’s contention that its prior-filed lawsuit demonstrates its intention not to waive Weatherspoon’s repair duties. The mere filing of a lawsuit does not alter the parties’ rights and obligations as defined by the Agreement. Moreover, the filing of the complaint simply reiterates the fact that Westminster was aware of Weatherspoon’s non-performance prior to closing, yet still chose to proceed.

2. The trial court also correctly granted summary judgment on Westminster’s fraud claim. The tort of fraud in Georgia has five elements: (1) false representation by defendant; (2) scienter; (3) intention to induce plaintiff to act or refrain from acting; (4) justifiable reliance by plaintiff; and (5) damage to plaintiff. See Klusack v. Ward, 234 Ga. App. 178, 179 (1) (507 SE2d 1) (1998). Summary judgment is appropriate where no jury issue exists on at least one issue of a plaintiff’s case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

The parties’ Agreement, even as amended, required that any termite-related repairs be completed prior to closing. Before closing, Weatherspoon notified Westminster of a prior termite infestation and of possible damage, and never indicated that she had made any repairs. Thus, Weatherspoon did not hide information and Westminster did not rely on any concealed material fact in deciding to close. Summary judgment was therefore appropriate. See Davi, 168 Ga. App. at 423.

Judgment affirmed.

Smith and Eldridge, JJ, concur.


text:
    A99A0366.
    JULIAN v. CITY OF ROME.
    (517 SE2d 79)
   Pope, Presiding Judge.

J. M. Julian fell off his bike while riding through a muddy section of the “Heritage Riverway,” a city-owned walkway in Rome maintained by the Floyd County Parks and Recreation Authority. The Riverway runs along the Oostanaula River from downtown Rome through Ridge Ferry Park behind the Floyd County Sara Hightower Regional Library and ends at a local museum. Julian’s accident occurred near the library.

Julian sued the city for negligence, and the city moved for summary judgment on two grounds: 1) that the city could not be held liable under Georgia’s Recreational Property Act (“RPA”), OCGA § 51-3-20 et seq.; and 2) that the record lacked evidence proving that the city actually or constructively knew the sidewalk was muddy. The trial court granted the city’s motion, and Julian appeals. We affirm.

1. The RPA was passed “to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting the owners’ liability toward persons entering thereon for recreational purposes.” OCGA § 51-3-20. Accordingly, the act provides that, except in certain limited situations, “an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes or to give any warning of a dangerous condition, use, structure, or activity on the premises to persons entering for recreational purposes.” OCGA § 51-3-22. Thus, the RPA shields landowners from liability arising under a negligence cause of action. South Gwinnett Athletic Assn. v. Nash, 220 Ga. App. 116, 117 (1) (469 SE2d 276) (1996); Maleare v. Peachtree City Church of Christ, 213 Ga. App. 593, 594 (1) (445 SE2d 321) (1994).

The record demonstrates that the city intended the Riverway as an extension of the county park. The city built the Riverway in conjunction with the Floyd County Parks and Recreational Authority to provide access to the park and the Oostanaula River. No fee is charged for the use of the Riverway. Although the Riverway is owned by the City of Rome, it is primarily maintained by the county recreational authority. We conclude, based upon these facts, that the Riverway falls under the protection of the RPA and that the trial court properly granted summary judgment to the city. See City of Tybee Island v. Godinho, 270 Ga. 567, 569 (511 SE2d 517) (1999) (holding RPA shielded city from liability from sidewalk running between parking lot and beach, which also provided access to city businesses). Compare Cedeno v. Lockwood, Inc., 250 Ga. 799, 800 (301 SE2d 265) (1983) (holding property owner who was in the business of entertainment and provided property to public to further that business interest was not entitled to the protection of the RPA).

And although the Riverway ends in downtown Rome, and thus provides access to the city’s businesses, any “indirect financial benefit” the city may derive from this access does not remove the Riverway from the protection of the RPA. See City of Tybee Island v. Godinho, 270 Ga. at 569.

2. Because we have found that summary judgment was appropriate under the RPA, we do not reach Julian’s remaining argument.

Judgment affirmed.

Smith and Eldridge, JJ., concur.

Decided April 29,1999.

John F McClellan, Jr., for appellant.

Brinson, Askew, Berry, Seigler, Richardson & Davis, Mark M. J. Webb, for appellee.


author: McMURRAY, Presiding Judge.

text:
    A99A0376.
    In the Interest of T. J. B., a child.
    (517 SE2d 77)
   McMURRAY, Presiding Judge.

T. J. B. filed this appeal after his adjudication of delinquency for committing acts which could constitute a violation of Georgia’s Controlled Substances Act were he not a juvenile. T. J. B.’s sole enumeration of error challenges the denial of his motion to suppress.

At about 5:30 in the afternoon on August 7, 1998, Narcotics Investigator Ken Howard of the City of Brunswick Police Department was on routine patrol when he observed 16-year-old T. J. B. bicycling through an area known for illegal drug activity. Although Investigator Howard was acquainted with T. J. B. and was aware that T. J. B. was a member of this community, he became suspicious because T. J. B. deviated from his usual pattern of stopping during the investigator’s street-side visits with “other subjects who hang out at the same location on a daily basis.” Investigator Howard followed T. J. B. as the juvenile bicycled through the area and, during this surveillance, noticed that T. J. B. “didn’t look back, didn’t acknowledge [his] presence behind him.” Investigator Howard lost contact with T. J. B. for about five minutes but then observed the juvenile exit a house which (according to Investigator Howard) T. J. B. had no reason to visit. “T. J. B. walked down the steps, . . . picked up his bicycle, . . . looked up, saw [Investigator Howard] watching him [and] immediately got on his bicycle and proceeded north bound on Wolfe Street.” Investigator Howard “suspected that [T. J. B.] was up to something” so he dispatched a radio alert and “advised any officer in the area to keep an eye out for [T. J. B.].”

Officer Garrett Hogue of the City of Brunswick Police Department testified that he received Investigator Howard’s radio dispatch and that he was “advised by Investigator Howard of some drug activity involving a . . . male on a bicycle wearing a red and white striped shirt.” Officer Hogue testified that, when he spotted T. J. B., the juvenile made a sharp turn away from him and “began to increase his speed on his bike.” Officer Hogue testified that he followed T. J. B. and decided, after observing T. J. B. “pedaling his bike through the campus of Risley Alternative School,” to “cut him off” as T. J. B. exited the school’s fenced playground. Officer Hogue testified that he waited for T. J. B. and confronted the juvenile as he “[came] out from the fence.” Officer Hogue explained that he “asked [T. J. B.] if [he] could talk to him and [that T. J. B.] replied [that the officer] could.” Officer Hogue testified that he then “approached [T. J. B.] and asked him if he had any weapons on his person, for officer safety!; that he informed T. J. B.] that [he] was going to pat him down for officer safety [and that T. J. B.] said that no, he did not.” Officer Hogue testified that he felt a hard plastic object in T. J. B.’s back pocket; that this object felt like a pill bottle and that he seized this suspected pill bottle and found a substance inside which appeared to be cocaine. Held:

Because Officer Hogue covertly intercepted and stopped T. J. B. while the juvenile was riding a bicycle, our analysis involves the legitimacy of a vehicle stop and is controlled by law set out in Vansant v. State, 264 Ga. 319 (443 SE2d 474). In Vansant, the Supreme Court of Georgia held:

Although an officer may conduct a brief investigative stop of a vehicle (see Delaware v. Prouse, 440 U. S. 648 (99 SC 1391, 59 LE2d 660) (1979)), such a stop must be justified by “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio, 392 U. S. 1, 21 (88 SC 1868, 20 LE2d 889) (1968). See also United States v. Brignoni-Ponce, 422 U. S. 873 (95 SC 2574, 45 LE2d 607) (1975). The U. S. Supreme Court recognized the difficulty in defining “the elusive concept of what cause is sufficient to authorize police to stop a person,” and concluded that the essence of the elusive concept was to take the totality of the circumstances into account and determine whether the detaining officer has “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 449 U. S. 411, 417-418 (101 SC 690, 66 LE2d 621) (1981). “This demand for specificity in the information upon which police action is predicated is the central teaching of (the Supreme Court’s) Fourth Amendment jurisprudence.” Terry v. Ohio, supra at 21, n. 18.

Vansant v. State, 264 Ga. 319, 320 (2), supra.

In the case sub judice, neither Investigator Howard nor Officer Hogue could identify any aspect of T. J. B.’s behavior which pointed to the juvenile’s involvement in criminal activity. The officers’ testimony shows only that T. J. B. was deliberately avoiding contact with law enforcement officers by evasively maneuvering his bicycle in an area known for illegal drug transactions. Such circumstances may indicate that T. J. B. was not projecting his usual affable persona toward law enforcement officers, but the circumstances do not establish a particularized and objective basis for suspecting T. J. B. of criminal activity sufficient to justify an investigatory stop under Terry v. Ohio, 392 U. S. 1, 21, supra. See Hughes v. State, 269 Ga. 258 (1) (497 SE2d 790).

Decided April 29,1999.

Luz F. Cloy, for appellant.

Stephen D. Kelley, District Attorney, W. Franklin Aspinwall, Jr., Assistant District Attorney, for appellee.

Our opinion would not be different even if Officer Hogue’s encounter with T. J. B. had started out as a consensual first-tier police-citizen encounter, outside the Fourth Amendment’s scope. See Pace v. State, 219 Ga. App. 583, 585 (466 SE2d 254). Although the consensual encounter does not require a reasonable or founded suspicion for approaching an individual, a pat down search during such an encounter, for officer safety, must usually be supported by the articulable suspicion standards set out in Terry v. Ohio, 392 U. S. 1, 21, supra. This requisite is lifted only when the circumstances indicate that the citizen may be armed or dangerous. See State v. King, 227 Ga. App. 466, 468 (489 SE2d 361), and Pace v. State, 219 Ga. App. 583, 585-586, supra. Since such circumstances do not appear in the case sub judice and since Officer Hogue’s testimony indicates that T. J. B. had no choice but to consent to being searched, Officer Hogue’s search of T. J. B. was not authorized.

The juvenile court erred in denying T. J. B.’s motion to suppress.

Judgment reversed.

Andrews and Ruffin, JJ, concur in the judgment only.


author: Johnson, Chief Judge.

text:
    A99A0402.
    GAY v. HATFIELD.
    (516 SE2d 856)
   Johnson, Chief Judge.

Tabarius Gay was injured when the car he was driving crashed into a median wall on Interstate 285. He sued Payton Hatfield, alleging Hatfield caused the accident. The jury returned a verdict in favor of Hatfield. Gay appeals from the judgment entered on the verdict. We affirm.

1. Gay contends the trial court erred in denying his motion for directed verdict as to liability because the evidence was undisputed that Hatfield, by falling asleep while driving his truck, caused Gay’s car to strike the median. We disagree.

A directed verdict is only authorized where there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a particular verdict. Flournoy v. Brown, 226 Ga. App. 857, 861 (4) (487 SE2d 683) (1997). In determining whether the trial court erred in denying a motion for directed verdict, this court views and resolves conflicts in the evidence in favor of the verdict. MARTA v. Mehretab, 224 Ga. App. 263, 266 (2) (480 SE2d 310) (1997).

So viewed, the evidence shows that Hatfield fell asleep while driving his pickup truck on Interstate 285. His truck struck a tractor-trailer and became disabled, blocking two of the four travel lanes. It was dark and foggy at the time and Hatfield turned on his car’s hazard lights. The driver of the tractor-trailer pulled his truck off the highway. Another trucker parked his truck on the shoulder and turned on his truck’s hazard lights. The tractor-trailer driver whose vehicle had been struck placed reflective triangles behind Hatfield’s car. The truck drivers directed traffic through the area. About ten to twenty minutes after Hatfield’s accident, Gay was driving into the area and saw something ahead but could not tell what it was. He hit something in the road, then realized there was a disabled truck further ahead in the road. He swerved to avoid the truck, lost control of his car and crashed into the median.

There was evidence that Gay was traveling in excess of the speed limit at the time of his accident. Considering evidence as to the lapse of time between the accidents, the darkness, the fogginess, and Gay’s speed, the trial court did not err in denying Gay’s motion for directed verdict on the issue of liability. See generally Mattox v. MARTA, 200 Ga. App. 697, 698 (1) (409 SE2d 267) (1991); McClure v. Ga. Power Co., 171 Ga. App. 257, 258-259 (1) (319 SE2d 93) (1984).

2. Gay claims the trial court erred in failing to give his requested charge. The requested charge provided that, where the evidence is undisputed that a driver has fallen asleep at the wheel and a wreck results therefrom, the driver has the burden of showing he was not negligent in damaging the vehicle.

When the trial court called for objections to the charge as given, Gay stated: “[W]e will respectfully except to the Court’s failure to give Plaintiff’s charge number one, based on the case of Budget Rent-a-Car versus Webb.” The trial court responded: “All right. Is that it?” Gay replied affirmatively and made no further argument.

To be reviewable on appeal, an objection must clearly direct the attention of the trial court to the claimed error and must be stated with sufficient particularity to leave no doubt as to the specific ground upon which the charge is challenged; the ground of error urged must fully apprise the court of the error and the correction needed. Alpha Beta &c., Inc. v. White Co., 235 Ga. App. 273, 276 (2) (509 SE2d 351) (1998). OCGA § 5-5-24 (a) places a duty on counsel to exercise a high degree of clarity in objecting to charges. Anderson v. State, 231 Ga. App. 807, 811 (3) (a) (499 SE2d 717) (1998).

Decided April 29,1999.

Thomas F. Jones, for appellant.

Beck, Owen & Murray, William M. Dallas III, Stephanie W. Windham, for appellee.

Here, Gay stated a case name, but did not discuss the case or explain how it applied to the evidence in this case. Because Gay did not state distinctly the matter to which he objected and the grounds for the objection, he did not preserve the alleged error for review. See generally Hicks v. Doe, 206 Ga. App. 596, 598 (3) (426 SE2d 174) (1992).

We note, however, that even assuming Gay properly objected, there was no error. If any portion of a requested charge is not authorized by the evidence, denial of the charge request is proper. See Campbell v. Cozad, 207 Ga. App. 175 (1) (427 SE2d 515) (1993). It was not undisputed that Gay’s collision resulted from Hatfield’s falling asleep at the wheel. Indeed, the evidence showed that Gay’s collision with the median wall occurred ten to twenty minutes after Hatfield fell asleep and caused the collision between his truck and the tractor-trailer. The trial court did not err in refusing to give the requested charge. See generally Pitts v. Bode, 198 Ga. App. 787, 788 (3) (403 SE2d 66) (1991).

Judgment affirmed.

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


text:
    A99A0407.
    DANIELS v. BUCYRUS-ERIE CORPORATION.
    (516 SE2d 848)
   Judge Harold R. Banke.

In 1992 Carroll Daniels was severely injured when a crane manufactured by Bucyrus-Erie Corporation tipped over onto him. Before lifting two 12-ton ice machines off the top of a building owned by Daniels’ employer, the crane owner-operator had “cribbed” (placed additional supports under) only two of the four horizontal outrigger arms. The first lift occurred without incident. During the lift of the second machine, an unsupported outrigger arm sunk eight inches in the ground, causing the crane to tip, which resulted in the arm telescoping back into its housing. Daniels was working nearby when the crane toppled.

Daniels sued Bucyrus-Erie for defective product (non-locking outrigger arms) and failure to warn of (i) the need for supports under the arms, (ii) the lack of locks for the arms, and (iii) the arms’ propensity to telescope when tipped. Because the crane was manufactured in 1972, the court relied on the ten-year statute of repose (OCGA § 51-1-11) to enter summary judgment on the defective product claim. The statute of repose does not apply to “failure to warn” claims. Chrysler Corp. v. Batten, 264 Ga. 723, 727 (4) (450 SE2d 208) (1994). Months later the court also entered summary judgment on the “failure to warn” claim, holding there was no duty to warn and no proximate causation. The latter order is the subject of this appeal. Held:

Unlike defective design claims which are subject to a “risk-utility” analysis (Banks v. ICI Americas, 264 Ga. 732 (450 SE2d 671) (1994)), “failure to warn” claims are treated differently. An open and obvious danger no longer alone bars design defect claims in Georgia, but may bar “failure to warn” claims. See Ogletree v. Navistar Intl. Transp. Corp., 269 Ga. 443, 446 (500 SE2d 570) (1998). Although Ogletree declined to address the issue head-on, earlier precedent holds

it is well-established that there is no duty resting upon a manufacturer or seller to warn of a product-connected danger which is obvious or generally known, or of which the person who claims to be entitled to the warning has actual knowledge.

(Citations and punctuation omitted.) Coast Catamaran Corp. v. Mann, 171 Ga. App. 844, 847 (2) (321 SE2d 353) (1984), aff’d, 254 Ga. 201 (326 SE2d 436) (1985), overruled on other grounds, Banks, supra; Hunt v. Harley-Davidson Motor Co., 147 Ga. App. 44, 45 (248 SE2d 15) (1978).

Bodymasters Sports Indus. v. Wimberley, 232 Ga. App. 170, 174-175 (2) (501 SE2d 556) (1998), recently held summary judgment was required on a “failure to warn” claim where the plaintiff knew that her wet shoes could slip from the foot platform on the exercise machine. “[S]ince she was aware of the danger she claims she should have been warned against, the failure to post signs warning of such danger could not have been the proximate cause of her injury. [Cit.]” Id. at 174; see Weatherby v. Honda Motor Co., 195 Ga. App. 169, 173 (393 SE2d 64) (1990) (“[a] manufacturer is under no duty to warn of a product-connected danger which is obvious or generally known”), overruled on other grounds, Ogletree, supra, 269 Ga. at 446. A corollary to this rule is that “[w]here the product is vended to a particular group or profession, the manufacturer is not required to warn against risks generally known to such group or profession.” (Citations and punctuation omitted.) Exxon Corp. v. Jones, 209 Ga. App. 373, 375 (433 SE2d 350) (1993).

Daniels admits that the crane operator was keenly aware of the very risks about which Daniels claims he should have been warned. The warnings proposed by Daniels’ experts would have provided the crane operator with no unknown information.

Taking a different tack, Daniels argues that he, as an innocent bystander, should have received the following warning: “Do not stand near machine if not adequately cribbed.” Daniels proposes that this should have been placed on the outside of the outrigger arms for all to see. This contradicts the testimony of his experts that the proposed warnings were primarily for the benefit of the crane operator and should have been placed in the cab or manual of the crane. Only one expert testified as to the need for warnings on the arms, and even this was not for bystanders.

Nor would it make sense to place such warnings on the crane outrigger arms to warn innocent bystanders. Beyond the visibility problems and the bystander’s inability to determine whether the machine is adequately cribbed, a bystander could do little about it.

[I]t would appear that the warning need not necessarily be given to the person actually injured in order for the manufacturer to escape liability. It would seem that the warning may be given to a person in a position such that he may reasonably be expected to act so as to prevent the danger from manifesting itself.

(Citation and punctuation omitted.) Stovall & Co. v. Tate, 124 Ga. App. 605, 613 (184 SE2d 834) (1971). Tate affirmed summary judgment to a lawn mower manufacturer where the lawn mower had discharged a rock injuring plaintiff standing nearby. The court held that the user’s knowledge of the hazard excused any lack of warning. See Exxon Corp., supra, 209 Ga. App. at 375-376 (vendors’ knowledge of dangers of gas excused lack of warning, even though injured party was innocent bystander); Eyster v. Borg-Warner Corp., 131 Ga. App. 702, 704 (2) (206 SE2d 668) (1974).

There are some cases that indicate under certain circumstances a bystander may be entitled to a warning. See, e.g., Dorsey Trailers Southeast v. Brackett, 185 Ga. App. 172, 174 (2) (363 SE2d 779) (1987); Ford Motor Co. v. Stubblefield, 171 Ga. App. 331, 335 (2) (319 SE2d 470) (1984). We need not decide this issue. Even if warnings were required and had been placed on the outside of the outrigger arms for the benefit of innocent bystanders, Daniels testified he paid no attention to the arms prior to the accident, and thus would not have seen any warnings proposed by experts. Proximate cause cannot be shown. See Talley v. City Tank Corp., 158 Ga. App. 130,134 (3) (279 SE2d 264) (1981) (proximate cause is a necessary element of a product liability case).

Decided April 29,1999.

Randall M. Clark, Edward E. Boshears, for appellant.

Fendig, McLemore, Taylor, Whitworth & Durham, Gilbert C. McLemore, Jr., for appellee.

The court did not err in granting summary judgment on the “failure to warn” claim.

Judgment affirmed.

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