author: Pope, Presiding Judge.

text:
    A00A1890.
    ATLANTA CASUALTY INSURANCE COMPANY v. GARDENHIRE.
    (545 SE2d 182)
   Pope, Presiding Judge.

Wanda Gardenhire was injured on October 28, 1997, when a 1993 Dodge Spirit ran into the rear of her vehicle. After the collision, the Dodge left the scene. Two eyewitnesses told police that a man was driving the car at the time of the collision, and one of the witnesses identified Michael D. McKinney as the driver. Further investigation revealed that the Dodge was owned by McKinney’s roommate, Bridgett Westbrook, and insured by Atlanta Casualty Insurance Company. McKinney was an excluded driver under the policy pursuant to a “Named Driver Exclusion Agreement” Westbrook signed in connection with her insurance application. Despite the eyewitness testimony, Westbrook came forward to identify herself as the driver and subsequently entered a plea of nolo contendere to charges of driving too closely and leaving the scene of the accident. Atlanta Casualty asserts that Westbrook’s plea was an attempt to “take the fall” for McKinney and notes that at one point a warrant for obstruction of law enforcement was taken out against her.

After receiving notice of the collision, Atlanta Casualty undertook its own investigation pursuant to the policy’s reservation of rights provision. The insurance company denied coverage, stating that its investigation revealed that McKinney was the driver and he was specifically excluded from coverage. It also denied coverage to Westbrook on the ground that she had made fraudulent statements and engaged in fraudulent conduct when she said she was driving the car at the time of the collision. And when Gardenhire subsequently sued Westbrook and McKinney for her injuries, Atlanta Casualty notified Westbrook that it would not provide her with a defense to the lawsuit.

Gardenhire’s suit asserted alternative claims against both possible drivers, McKinney and Westbrook. On September 15, 1999, a jury returned a verdict against only Westbrook in the amount of $45,000, plus interest. The jury affirmatively found that Westbrook, and not McKinney, was driving the car at the time of the collision.

Following the jury verdict, Westbrook assigned her claims against Atlanta Casualty to Gardenhire. Gardenhire filed suit directly against Atlanta Casualty, seeking recovery of damages in the amount of $45,000, and moved for summary judgment. The trial court granted Gardenhire’s motion, and Atlanta Casualty appeals.

.1. Atlanta Casualty enumerates a number of errors with regard to the grant of summary judgment. In essence, it asserts that it should be entitled to litigate its defenses to coverage under West-brook’s policy, and thus summary judgment was improper. We agree that Atlanta Casualty is not prevented from asserting defenses to coverage merely by deciding not to defend Westbrook in Gardenhire’s action. See Colonial Oil Indus, v. Underwriters Subscribing to Policy Nos. &c., 268 Ga. 561, 563 (4) (491 SE2d 337) (1997). But because we conclude that Atlanta Casualty cannot successfully assert its defenses to coverage, we affirm the trial court’s grant of summary judgment to Gardenhire.

Atlanta Casualty asserts two bases for denying coverage: (1) that McKinney was an excluded driver under the policy and (2) that its insured, Westbrook, attempted to defraud them by claiming that she, and not McKinney, was driving the car. But to succeed on either one of these defenses, Atlanta Casualty must necessarily prove that McKinney, and not Westbrook, was driving. And a jury has already found that Westbrook was driving the car at the time of the accident, and that finding was incorporated into the final judgment of Gardenhire’s claim against Westbrook. Because Atlanta Casualty stands in privity with Westbrook as to that claim, it is bound by the prior factual finding and judgment. American States Ins. Co. v. Walker, 223 Ga. App. 194, 195 (1) (b) (477 SE2d 360) (1996).

The doctrine of collateral estoppel precludes the readjudication of an issue of law or fact already adjudicated between the parties or their privies, where that issue is essential to the judgment. Kent v. Kent, 265 Ga. 211 (1) (452 SE2d 764) (1995). It cannot be disputed that the issue of who was driving the car was essential to the judgment in Gardenhire’s suit against Westbrook and McKinney, as it determined which of the two defendants was liable. “[W]hen an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties [or their privies] in any future lawsuit.” (Citation and punctuation omitted.) Sullivan v. State, 235 Ga. App. 768, 769 (510 SE2d 136) (1998).

Atlanta Casualty argues that its defense of fraud has never been adjudicated and thus asserts that it should be allowed to present evidence regarding that issue. But the crucial underlying fact to support the defense has been adjudicated, and the jury found in Gardenhire’s favor. Atlanta Casualty, therefore, is estopped from relitigating the issue: “[C]ollateral estoppel does not require identity of the claim — so long as the issue was determined in the previous action and there is identity of the parties, that issue may not be re-litigated, even as a part of a different claim.” (Citation and punctuation omitted.) Gen. Elec. Capital Computer Svcs. v. Gwinnett County Bd. of Tax Assessors, 240 Ga. App. 629, 630-631 (1) (523 SE2d 651) (1999). See also Great Atlantic Ins. Co. v. Morgan, 161 Ga. App. 680, 682 (288 SE2d 287) (1982) (insurance company precluded from asserting insured’s fraud in subsequent action).

To avoid this result, Atlanta Casualty could have followed the “ ‘procedurally safe course’ of providing a defense under a reservation of rights and filing a declaratory judgment action to determine its obligations.” Colonial Oil, 268 Ga. at 562. Because it chose not to do so, however, it is bound by the prior judgment. “A judgment of a court having jurisdiction of both the parties and the subject-matter, however irregular or erroneous, is binding until set aside.” (Citation and punctuation omitted.) Matthews Group & Assoc. v. Wages, 180 Ga. App. 151, 152 (2) (348 SE2d 695) (1986). See also OCGA § 9-11-60.

2. Atlanta Casualty argued below and also before this court that its liability does not extend to the full amount of the judgment against Westbrook. The insurance company asserts that its exposure is limited to the costs Westbrook incurred in defending against Gardenhire’s claim and certainly cannot extend beyond the policy limits.

But because Atlanta Casualty can assert no valid defense to coverage, it necessarily is liable to Gardenhire at least to the extent of the policy limits. And under circumstances such as this, where an insurance company fails to offer a defense, it may be liable to its insured beyond the policy limits to the full amount of the judgment. See Leader Nat. Ins. Co. v. Kemp & Son, Inc., 259 Ga. 329, 330 (380 SE2d 458) (1989); Leader Nat. Ins. Co. v. Smith, 177 Ga. App. 267, 278-279 (2) (339 SE2d 321) (1985). Here, Gardenhire stands in the shoes of the insured and thus may be entitled to recover an amount in excess of the policy limits. Nevertheless, we agree with Atlanta Casualty that a jury question exists as to the extent of its liability. Accordingly, we reverse the trial court’s grant of summary judgment on this ground and remand for further proceedings on this issue.

Decided February 14, 2001.

Allgood, Childs & Mehrhof, Richard R. Mehrhof, Jr., for appellant.

Bell & Bell, David B. Bell, for appellee.

Judgment affirmed in part and reversed in part.

Miller and Mikell, JJ., concur.


source: Caselaw Access Project

author: Mikell, Judge.

license: Public Domain

text:
    A00A2191.
    IN RE RAY.
    (545 SE2d 617)
   Mikell, Judge.

Radiente M. McCoy, mother of Curtis M. Ray, who was born on March 12, 1985, appeals the Chatham County Probate Court’s order appointing the child’s great-grandmother, Ethel Oliver, guardian of his property. The scant record shows as follows: Oliver initially filed a petition for letters of guardianship of the child’s person and property. McCoy, who resides in New York, objected, asserting that she was never served and had not relinquished her parental rights. Oliver dismissed her petition and filed a second one seeking letters of guardianship of the property only. McCoy filed a request for a hearing, referencing her previous objection. The hearing was not reported. The probate court’s order reflects that the child, who was over 14 years of age, selected Oliver as the guardian of his property, which is a pending personal injury action.

1. McCoy initially asserts that this action was void ab initio because she was never served with process.

It is a long standing rule of law that where the record discloses that a defendant [here, appellant] was never served with a copy of the complaint and summons attached thereto, and if the defendant has not either waived service or made a general appearance in the case, there is no valid suit pending in the trial court and the trial court does not acquire personal jurisdiction over the defendant. However, any act by which one consents to the jurisdiction of the court constitutes a waiver.

Here, the record reveals that McCoy was never served with process. Moreover, McCoy preserved the defense of insufficiency of service of process by raising it in her objection to Oliver’s petition. Further, a party’s appearance at the hearing on the merits does not necessarily operate as a waiver of the defense. However, in the absence of a transcript of the hearing, we must assume that the evidence supported the probate court’s assertion of jurisdiction.

[W]ithout having before us the evidence heard by the trial court, we cannot address the merits of the objection. This is especially true where there are no findings of fact and conclusions of law required or requested, for without a transcript we could not even determine whether a finding of fact is clearly erroneous.

The appellant bears the burden of showing error affirmatively by the record. “We will not presume error from a silent record.” Accordingly, this enumeration presents nothing for review.

2. Next, we note that McCoy incorrectly characterizes Oliver’s appointment as guardian as temporary. A temporary guardian cannot be appointed over the objection of a natural guardian. Although Oliver’s brief also states that she was appointed as temporary guardian of the minor’s property, there is no evidence in the record that Oliver sought, or was granted, temporary guardianship under OCGA § 29-4-4.1. Facts alleged in briefs but unsupported by evidence in the record cannot be considered on appeal. Accordingly, OCGA § 29-4-4 controls the instant case, and we will not consider any arguments based on OCGA § 29-4-4.1.

Next, McCoy argues that a probate court lacks the authority to appoint a guardian of the property of a minor over the age of 14 other than the child’s natural parent, unless the parent has relinquished or forfeited her parental rights. While McCoy would be correct if Oliver had been appointed guardian of the minor’s person, relinquishment or forfeiture of parental rights is not a prerequisite to the probate court’s appointment of another as guardian of the minor’s property. OCGA § 29-4-4 (a) empowers the probate court to appoint for a minor “having no guardian” a guardian of the person and property, or either, of the child. Subsection (b) bestows upon a minor over age 14 the privilege of selecting a guardian himself and further provides that “[i]f the selection is judicious, the judge of the probate court shall appoint the guardian so selected.”

The phrase “having no guardian” was interpreted more than 120 years ago to mean having no guardian of the person:

Natural guardianship, pure and simple, is of the person only, and is incident to the relation of parent. . . . For a minor having no guardian, the ordinary may appoint a guardian of person and property, or of either; but if the minor has a natural guardian, it certainly cannot be said in a broad sense that he or she has no guardian. In such case the range of appointment is limited to guardianship of the property, for it is only as to property that there is no guardian.*

The necessary implication of Beard is that the probate court is permitted to overrule the parent’s objection and appoint as guardian of the property the person selected by the minor, provided the selection is judicious. A minor’s choice of guardian is deemed judicious if it is in the minor’s best interest. In the case sub judice, McCoy does not contend that her child’s selection of Oliver as the guardian of his property was not judicious. In any event, in the absence of a transcript of the evidence presented at the hearing, we are constrained to find that the probate judge acted in the child’s best interest. “Where the transcript is necessary for review and appellant omits it from the record on appeal, the appellate court must assume the judgment below was correct and affirm.”

3. Next, McCoy argues that the probate court erred in appointing Oliver as guardian of the child’s property because the property at issue is a personal injury action and only McCoy, as the natural parent, has the right to pursue the action.

McCoy is correct that the right to recover damages for loss of a child’s services and medical expenses vests solely in the child’s parents. This is consonant with a parent’s statutory obligation to support her child, including responsibility for his medical expenses. However, given that the right to recover damages for pain and suffering vests in the child, not the parent, we find that the probate court was authorized to appoint Oliver as guardian of the minor’s property. As we explained in Kite v. Brooks:

[I]t is pertinent to inquire whether a father of a minor, who has not surrendered his parental power over the child, is exclusively entitled to sue for all torts committed on his child. . . . [T]he general rule is that a father can not recover for a tort committed on his minor child, unless he thereby incurs a direct pecuniary loss, such as loss of services, medicine, nursing, and other necessary expenses. ... It is, therefore, settled law that the right of action for injuries of every character to a minor child is not in the father alone. If the injury is one from which the father does not sustain any damage, that is, which does not destroy or impair the ability of the child to render services to the father, there is no right of action in the father from the wrong done the child. . . . [Here, o]nly damages for pain and suffering consequent upon the actual physical injuries sustained are sought. It follows that the father could not himself sue for the damages alleged. . . ,

Subsequently, in Lynn v. Wagstaff Motor Co. we held that a parent could not act as a representative of his child’s property inter- . ests unless he first qualified with the probate court as guardian of the property. We stated that a “chose in action is property and a natural guardian has no more authority to sign it away than he would have to sell tangible property of the child.”

Decided February 14, 2001.

Mathis, Adams & Tate, Mark A. Tate, Derek J. White, Middleton, Mixson, Orr & Adams, Richard H. Middleton, Jr., for appellant.

Hendrix Law Firm, Robert R. Cook, Carl M. Nelson, Jr., for appellee.

Accordingly, we hold that OCGA § 29-4-4 authorizes a probate court to appoint a guardian of the property, over the natural guardian’s objection, of a minor over the age of 14, where, as alleged here, the minor’s sole property is a personal injury action.

4. McCoy’s motion to file a supplemental brief is denied. McCoy seeks to add to the record on appeal an affidavit that was not prepared until after this appeal was docketed. As the affidavit did not exist prior to the hearing, it could not have been considered by the probate court and cannot properly become part of the record on appeal. See Court of Appeals Rule 23 (f).

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

       (Citations, punctuation and emphasis omitted.) Ga. Power Co. v. O’Bryant, 169 Ga. App. 491, 492 (313 SE2d 709) (1983).

       See OCGA § 9-11-12 (b).

        Roberts v. Bienert, 183 Ga. App. 751, 755 (2) (360 SE2d 25) (1987).

       (Citations omitted.) Carole Lyden Smith Enterprises v. Mathew, 193 Ga. App. 320, 321 (2) (387 SE2d 577) (1989).

        Martin v. True, 232 Ga. App. 435, 436 (1) (502 SE2d 285) (1998).

       (Citations and punctuation omitted.) Adams v. State, 234 Ga. App. 696, 697 (3) (507 SE2d 538) (1998); accord Clemmons v. State, 210 Ga. App. 632, 634 (2) (437 SE2d 350) (1993); Trevino v. Flanders, 231 Ga. App. 782 (1) (501 SE2d 13) (1998).

        In re Roscoe, 242 Ga. App. 440 (529 SE2d 897) (2000).

       A petition for temporary letters of guardianship must be filed on Georgia Probate Court Standard Form 28, while Oliver utilized Form 29, entitled “Petition for Letters of Guardianship of (Person) (And) (Property) of Minor by Person Other than Natural Guardian.”

        Trevino v. Flanders, supra.

        Beard v. Dean, 64 Ga. 259 (1879); Adams v. Adams, 219 Ga. 633, 634 (135 SE2d 428) (1964); Jordan v. Smith, 5 Ga. App. 559, 560 (63 SE 595) (1909) (“There can not be two guardianships at the same time as to either the person or the property of the infant, though one person may be guardian of its person and another may be guardian of its property.”); Whitlock v. Barrett, 158 Ga. App. 100 (279 SE2d 244) (1981).

        Beard v. Dean, supra at 260-261.

       Propst, Handbook for Probate Judges of Georgia, § 13.5, p. 213 (Council of Probate Court Judges of Georgia, 2nd ed. 1997).

       See Gary v. Weiner, 233 Ga. App. 284, 285 (2) (503 SE2d 898) (1998) (absent transcript, probate court’s appointment of successor guardian presumed proper).

       (Punctuation omitted.) In re Holly, 188 Ga. App. 202, 203 (372 SE2d 479) (1988); see also Renshaw v. Feagin, 199 Ga. App. 148, 151 (3) (404 SE2d 457) (1991).

       OCGA § 51-1-9; Southern Guaranty Ins. Co. v. Sinclair, 228 Ga. App. 386, 387 (491 SE2d 843) (1997); Jarrell v. State Merit System &c., 205 Ga. App. 527, 529 (423 SE2d 1) (1992); Rose v. Hamilton Med. Center, 184 Ga. App. 182, 183 (361 SE2d 1) (1987) (physical precedent only).

       OCGA § 19-7-2.

       51 Ga. App. 531 (181 SE 107) (1935).

       126 Ga. App. 516 (191 SE2d 324) (1972).

       (Citations and punctuation omitted.) Id. at 533-534.

       Id. at 518; see also OCGA § 29-2-16; Gnann v. Woodall, 270 Ga. 516, 517 (511 SE2d 188) (1999) (probate court approval required for certain settlements based upon the best interest of the ward).

        Nixon v. Rosenthal, 214 Ga. App. 446, 447 (3) (448 SE2d 45) (1994); see also SurgiJet, Inc. v. Hicks, 236 Ga. App. 80, 82 (4) (511 SE2d 194) (1999) (exhibits to briefs are not part of the record on appeal and cannot be considered); Hixson v. Hickson, 236 Ga. App. 894, 895-896 (512 SE2d 648) (1999) (affidavits attached to briefs are neither evidence nor part of the record).


author: Barnes, Judge.

text:
    A00A2261.
    MUIR v. THE STATE.
    (545 SE2d 176)
   Barnes, Judge.

Jamie P. Muir appeals from her convictions of speeding, driving under the influence to the extent she was a less safe driver (OCGA § 40-6-391 (a) (1)), and driving with an alcohol concentration greater than 0.10 grams (OCGA § 40-6-391 (a) (5)). All of her enumerations of error relate to jury charges given or refused by the trial court. Because we agree that the trial court erroneously charged the jury, we must reverse Muir’s less safe conviction under OCGA § 40-6-391 (a) (1), reverse her per se conviction under OCGA § 40-6-391 (a) (5), affirm her speeding conviction, vacate her merged sentence, and remand this case to the trial court for proceedings not inconsistent with this opinion.

The record shows that Muir was stopped by a City of Atlanta police officer for speeding (55 mph in 35-xnph zone). When the police officer smelled “a strong odor of alcoholic beverage on her breath and person,” he asked her if she had had anything to drink. When she told him that she had drunk “three to four beers,” he asked her to step out of the car and participate in a series of field sobriety tests. The police officer testified that she had bloodshot eyes and slurred speech. When Muir performed the field sobriety tests (horizontal gaze nystagmus, nine-step walk and turn, the one-leg stand, and a preliminary breath test), the police officer detected clues from each test demonstrating that she was under the influence of alcohol. He then arrested her for driving under the influence of alcohol, gave her the implied consent warning, and tested her breath on an Intoxilyzer 5000 machine. The machine revealed blood alcohol concentrations of 0.125 and 0.115 grams. The officer further testified that, in his opinion, Muir was a less safe driver that evening based upon the “totality of the circumstances; the subject’s less-than-safe driving; her speeding; her bloodshot eyes; her slurred speech; [and] her performance on the field evaluation. . . .”

Muir testified that she drank only three beers and half of a Yagermeister shot in the four-hour period before she was stopped by the police officer. In her opinion, she was “fine to drive” and not under the influence of alcohol. An expert witness testified for the defense that, in his opinion, women score higher than men on the Intoxilyzer 5000 machine because it is calibrated to a man’s physiological factors. In his opinion, “it exaggerates the score and it can more than double the score on women who have the same amount to drink as men, same size,. and everything.” He further testified that, based upon the number of drinks Muir stated she drank, her true blood alcohol concentration was 0.05 grams.

1. In her first enumeration of error, Muir contends the trial court erred by charging the jury as follows:

I charge you, ladies and gentleman, that a chemical analysis of a person’s blood, urine, breath or other bodily substance shall he considered valid if their analysis was performed according to the methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation, and by individuals possessing a valid permit issued by the Division of Forensic Sciences for this purpose. And if the arresting officer at the time of the arrest advised the person arrested of her right to an additional chemical test or tests of her blood, urine, breath, or other bodily substance.

(Emphasis supplied.) According to Muir, this charge violated her due process rights under the Fifth and Fourteenth Amendments to the United State Constitution and under Art. I, Sec. I, Pars. I and II of the Georgia Constitution because it creates a mandatory presumption in favor of the State. Specifically, “the jury was told that [the] State’s test has a conclusive presumption of ‘validity’ and may not be questioned or discredited.” The State, relying upon a panel decision of this Court in Johnson v. State, 231 Ga. App. 215 (498 SE2d 778) (1998), asserts this issue has already been decided adversely to appellant and that it is a proper statement of the law found in OCGA § 40-6-392 (a) (1) (A).

(a) In Burke v. State, 233 Ga. App. 778 (505 SE2d 528) (1998), this Court held that a trial court did not err by refusing to give a charge based upon this same statute. The opinion states:

The statute at issue deals with the admissibility of chemical test results. See. OCGA § 40-6-392 (a). The determination of whether evidence should be admitted pursuant to OCGA § 40-6-392 (a) (1) (A) is never a jury question. Gaston v. State, 227 Ga. App. 666, 670 (490 SE2d 198) (1997). The only relevant issue for the jury was the weight to give that evidence. See Beaman v. State, 161 Ga. App. 129, 130-131 (3) (291 SE2d 244) (1982). The trial court did not err in refusing to instruct the jury as to the foundation requirements of the statute.

Id. at 779 (3).

Accordingly, the trial court in this case erred by charging the jury on this statute. Our opinion in Johnson, supra, does not alter this result. In Johnson, the trial court gave the following charge: “ T charge you that breath alcohol measuring equipment approved by the State Crime Lab is considered accurate if properly operated.’” 231 Ga. App. at 216. This charge differs significantly from the charge given by the trial court in this case. It instructs the jury that the equipment is considered accurate in general. It does not, as in this case, imply that the analysis or result for a particular individual “shall be considered valid.”

(b) Charging errors are presumed harmful unless it appears from the entire record that the error is harmless. Foskey v. Foskey, 257 Ga. 736, 737 (2) (363 SE2d 547) (1988); Shaw v. State, 238 Ga. App. 757, 759 (1) (519 SE2d 486) (1999). In this case, we cannot say that the charging error was harmless with regard to Muir’s less safe (OCGA § 40-6-391 (a) (1)) and per se convictions (OCGA § 40-6-391 (a) (5)).

In Lattarulo v. State, 261 Ga. 124 (401 SE2d 516) (1991), our Supreme Court recognized that breath test results are admissible when the statutory foundation requirements are met. Id. at 127. However, it also noted that “[a]n accused may always introduce evidence of the possibility of error or circumstances that might have caused the machine to malfunction. Such evidence would relate to the weight rather than the admissibility of breathalyzer results.” Id. at 126 (3).

In this case, Muir did precisely what the Supreme Court envisioned in Lattarulo. Her defense to the DUI charges against her was that the breathalyzer machine overstated her true blood alcohol concentration and that the amount of alcohol she admitted drinking did not render her a less safe driver. The trial court’s charge to the jury nullified this defense because it mandated that the jury find valid the test results showing that her blood alcohol level exceeded the legal limit. From this mandatory finding alone, a reasonable jury might have convicted Muir of both the less safe and per se charges against her. It could have also caused the jury to discredit Muir’s testimony that she had consumed only three beers and half of a Yagermeister shot over a four-hour period and was therefore a safe driver.

As a result, we cannot find the trial court’s charging error harmless with regard to her less safe and per se convictions and must reverse them. Since the breathalyzer evidence would have had no impact on her speeding conviction, we affirm it. Finally, since the trial court merged Muir’s speeding and less safe convictions into her per se conviction for purposes of sentencing, we must vacate her sentence and remand this case to the trial court for proceedings not inconsistent with this opinion.

2. Muir’s remaining enumerations of error are rendered moot by our holdings in Division 1.

Judgment affirmed in part and reversed in part and sentence vacated.

Blackburn, C. J., and Eldridge, J., concur.

Decided February 14, 2001.

Spruell, Taylor & Associates, Billy L. Spruell, Melinda D. Taylor, for appellant.

Joseph J. Drolet, Solicitor, Craig E. Miller, Marko L. Burgar, Assistant Solicitors, for appellee.

       This provision provides:
      (a) Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person in violation of Code Section 40-6-391, evidence of the amount of alcohol or drug in a person’s blood, urine, breath, or other bodily substance at the alleged time, as determined by a chemical analysis of the person’s blood, urine, breath, or other bodily substance shall be admissible. Where such a chemical test is made, the following provisions shall apply: (1) (A) Chemical analysis of the person’s blood, urine, breath, or other bodily substance, to be considered valid under this Code section, shall have been performed according to methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation on a machine which was operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order and by an individual possessing a valid permit issued by the Division of Forensic Sciences for this purpose. . .
      (Emphasis supplied.)


author: Blackburn, Chief Judge.

text:
    A00A2410.
    ROCHA v. THE STATE.
    (545 SE2d 173)
   Blackburn, Chief Judge.

After a jury trial, Eduardo Rocha a/k/a Edwardo Morado was found guilty of three counts of child molestation, one count of cruelty to children, and one count of aggravated child molestation. Subsequent to the denial of his motion for new trial, Rocha filed this appeal. Rocha contends that the trial court erred by failing to strike certain jurors for cause and by refusing to allow his counsel to conduct a thorough and sifting cross-examination of certain prosecution witnesses. We find no error and affirm.

1. Rocha contends that the trial court erred by failing to strike three prospective jurors for cause because their responses indicated that they could not be fair and impartial jurors. In arguing this issue, Rocha urges this Court to impose a clear rule that “any prospective juror in a sex crime trial who describes a prior sexual abuse life experience to themselves or a direct family member should be struck for cause.” We decline to do so.

Before a juror can be disqualified for cause, it must be shown that an opinion held by the potential juror is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court’s charge upon the evidence.

Johnson v. State. The decision to strike a juror for cause lies within the sound discretion of the trial court, and that decision will not be disturbed absent an abuse of discretion. Wilcox v. State.

Although Rocha now argués that three prospective jurors should have been excused for cause, the transcript reveals that he sought the excusa! of only two jurors and one for an altogether different reason than is now being urged. See Parrish v. State.

(a) Prospective Juror S. R. During individual voir dire, S. R. testified that, although she had been molested as a child, she “could listen to the evidence with impartiality, but [could not] deny that there would be an emotional factor for [her].” She also, however, stated affirmatively that she could listen to the evidence and base her decision solely on that evidence. While being cross-examined, S. R. volunteered, “[i]f I listened to the evidence and had a reasonable doubt I would have no problem returning a verdict of not guilty.” After the defense moved to excuse her for cause, the trial court then questioned her.

THE COURT: The evidence is going to be completely different I expect than what happened in your case. THE JUROR: Yes. THE COURT: Can you assure me that if the evidence that you hear in this courtroom and the law that you hear in this courtroom justifies in your mind a verdict of guilty that you would be able to find the defendant guilty? THE JUROR: Yes, I do. THE COURT: And if the evidence that you hear in this courtroom and the law that I give you applies to this case justifies a verdict of not guilty you would be able to find the defendant not guilty? THE JUROR: Yes, sir. THE COURT: Is there anything about your prior experience that would interfere with you being able to make that determination based only on what you hear here in the courtroom? THE JUROR: No, sir.

After participating in this colloquy, the trial court denied the motion to excuse the prospective juror for cause. Since S. R.’s testimony did not show that she had a compelling interest in the outcome or was so biased that she could not render an impartial verdict based on the evidence, we cannot say that the trial court abused its discretion in refusing to remove her for cause. Evans v. State.

(b) Prospective Juror K. P. Pretermitting consideration of the State’s claim that Rocha never sought to have this juror excused, we find no error in her being allowed to hear this case. See Ashford v. State K. P. testified that she could be fair and could acquit the defendant if the evidence did not prove his guilt beyond a reasonable doubt. Nothing in her testimony indicates that her opinions or biases were so fixed that she could not set them aside and decide the case based on the evidence presented. See Garland v. State.

(c) Prospective Juror E. D. Although Rocha did seek to have E. D. excused from jury service, he did so because E. D. had complimented a State witness about her Christmas tree sweater. After confirming that no conversation had occurred and having obtained E. D.’s assurances that the casual encounter would not affect her ability to reach a fair and impartial verdict, the trial court refused to excuse her for cause. In any event, the transcript reveals that the State opted to exercise a peremptory challenge to strike E. D. from the case.

2. Rocha asserts that the trial court improperly denied his right to cross-examine several prosecution witnesses thoroughly about the possibility of someone else as the perpetrator. Rocha claims that he was denied the opportunity to question these witnesses about whether the female victim had made prior false sexual allegations against a man named Phillip. Yet, the record unquestionably demonstrates that defense counsel expressly repudiated any such assertion. Prior to trial, defense counsel advised the trial court that he wanted to explore the possibility of misidentification on the part of the girl. Counsel stated: “I do believe that at one point someone said the child had reported a Phillip. I believe there’s a couple of points when the child says it was a [P. W.] or something like that that had done this.” After speculating about the State’s forthcoming case, defense counsel then said: “First of all, there is the issue of whether or not that I can suggest that that was a false allegation and that’s not what I would be talking about. I think I could raise it as an issue of identification.” The trial court responded, “[i]f she’s misidentified somebody or named somebody else who did this event to her, I think that’s a fair matter of thorough and sifting cross-examination.” But defense counsel then clarified his argument, saying, “[b]ut she has not identified anyone else as having done this. She indicates a P. W. had actually touched her at some other — in Cartersville had touched her private parts a couple of months ago. A totally separate incident from this incident.” After noting that “clearly this is a separate issue that comes under her sexual history and is protected,” the trial court refused to allow Rocha to broach the topic.

Later, during the trial, defense counsel unsuccessfully sought permission to cross-examine Officer McCormick, who had interviewed the victim, about a supplemental report that purportedly mentioned a P. W. After again finding that such questioning would improperly delve into the victim’s sexual history, the trial court prohibited questioning of the victim or the police investigator about a purported incident in another county.

The rape shield statute, OCGA § 24-2-3 (b), excludes “ ‘evidence relating to the past sexual behavior of the complaining witness.’ ” Lemacks v. State. Absent a showing of relevancy, evidence of a child’s past sexual history, including sexual activity involving a person other than the defendant being tried, is inadmissible. Marion v. State. Even evidence about another incident of molestation is generally not admissible in a child molestation case. Id.

Decided February 14, 2001.

Justin J. Wyatt, for appellant.

Patrick H. Head, District Attorney, Timothy B. Lumpkin, Maria B. Golick, Assistant District Attorneys, for appellee.

Nevertheless, an exception to this exclusion may be authorized when the State introduces medical evidence which indicates that the child has been sexually abused or when the State presents evidence that the child exhibits symptoms of the abuse accommodation syndrome. Chambers v. State. The purpose of this exception is to permit evidence that the victim’s medical and behavioral symptoms were caused by someone else other than the defendant. Id. But here, the State did not offer any medical evidence to prove the girl had been molested or any testimony to show that she had displayed symptoms consistent with the child abuse accommodation syndrome. Compare Marion, supra. Therefore, the exception did not apply and inquiry into the victim’s sexual history was precluded by OCGA § 24-2-3 (b). McGarity v. State.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

         Johnson v. State, 262 Ga. 652, 653 (2) (424 SE2d 271) (1993).

        Wilcox v. State, 250 Ga. 745, 757 (5) (301 SE2d 251) (1983).

        Parrish v. State, 237 Ga. App. 274, 280-281 (4) (514 SE2d 458) (1999).

        Evans v. State, 210 Ga. App. 804, 805 (437 SE2d 495) (1993).

        Ashford v. State, 271 Ga. 148, 149 (2) (518 SE2d 420) (1999).

        Garland v. State, 263 Ga. 495, 497 (1) (435 SE2d 431) (1993).

        Lemacks v. State, 207 Ga. App. 160, 161 (427 SE2d 536) (1993).

        Marion v. State, 206 Ga. App. 159 (1) (424 SE2d 838) (1992).

        Chambers v. State, 213 Ga. App. 284, 286 (1) (b) (444 SE2d 833) (1994).

        McGarity v. State, 224 Ga. App. 302, 304 (1) (480 SE2d 319) (1997).


author: Eldridge, Judge.

text:
    A01A0015.
    ARCHIE v. THE STATE.
    (545 S.E.2d 179)
   Eldridge, Judge.

A Spalding County jury found Robert Archie guilty of burglary. Archie does not challenge the sufficiency of the evidence against him, but claims (1) that the trial court made an improper opinion comment in violation of OCGA § 17-8-57; and (2) that he received ineffective assistance of counsel at trial because his trial attorney failed to object to the court’s allegedly improper opinion comment and failed to object to alleged hearsay testimony by the victim of the burglary. Upon review, we affirm Archie’s conviction.

1. In reversing this Court in its recent decision in Paul v. State, the Supreme Court of Georgia announced a new rule of law wherein a claim of error alleging a violation of OCGA § 17-8-57 is not waived by an attorney’s failure to object at trial, if such violation constitutes “plain error”: “[W]e will apply the plain error rule to death penalty cases, and other criminal cases in which the trial court violates OCGA § 17-8-57.” This, although for 25 years the failure to object to an alleged violation of OCGA § 17-8-57 has resulted in the waiver of such claim on appeal. In fact, we have been especially assiduous in applying waiver ever since the Supreme Court of Georgia granted certiorari to vacate an opinion of this Court for not finding waiver:

The Court of Appeals opinion appears to hold that the purported statements require reversal regardless of whether there was a contemporaneous objection entered. The question of whether Code Ann. § 81-1104 [now OCGA § 17-8-57] has been violated is not reached unless an objection or motion for mistrial is made. . . . The failure of the appellant to object to the questions or to move for a mistrial at the trial estopped him from raising an objection on appeal.

Notwithstanding such precedent, we will, of course, follow the current mandate of our Supreme Court as articulated in Paul v. State. And although the “plain error” rule is usually applied only in death penalty cases or other criminal cases involving “exceptional circumstances,” we will do as directed and apply such rule to every criminal case alleging a violation of OCGA § 17-8-57. As such, we will determine herein whether the trial court comment about which Archie complains constituted “plain error” and thus requires reversal. If not, the claim will be waived by Archie’s failure to object at trial. “ ‘Plain error’ is that which is so clearly erroneous as to result in a likelihood of a grave miscarriage of justice or which seriously affects the fairness, integrity or public reputation of a judicial proceeding.”

In this case, the victim of the burglary was called to the stand as the State’s first witness. She testified that she arrived home and found her back door “tore up” and her television and VCR missing. The victim called the police to report the burglary. Thereafter, the victim’s teenage son was called to the stand. After asking preliminary questions, the prosecutor directed the son’s attention to the incident in question: “[Prosecutor:] Do you remember — I want to go back to September 17th. Do you remember the night when your house was burglarized? [Witness:] Yes, ma’am.” Defense counsel objected because the question was leading and used the expression “burglarized.” The trial court then stated: “Well, we know the house was burglarized. We’re just trying to find out and figure out who so that’s not objectionable.” Archie now challenges the trial court’s comment as being an expression of what was proved in violation of OCGA § 17-8-57. Archie, however, put forth an alibi defense wherein he readily agreed that the victim’s home had been burglarized. He simply claimed that he did not do it and did not know who did. Since the fact that the victim’s home was burglarized was not an issue in this case, we do not find the trial court’s comment seriously affected the fairness, integrity or public reputation of the trial so as to constitute “plain error.” Accordingly, Archie’s claim of error is waived.

2. Archie alleges that he received ineffective assistance of counsel at trial. However,

defendant did not subpoena his trial counsel to appear at the hearing on his motion for new trial. Thus, defendant made no affirmative showing that the purported deficiencies in his trial counsel’s representation were indicative of ineffectiveness and were not examples of a conscious and deliberate trial strategy. The burden is on the party alleging error to show it affirmatively by the record, and when he does not do so, the judgment is assumed to be correct and must be affirmed.

In the absence of contrary evidence, defense counsel’s actions are presumed to be part of trial strategy. Accordingly, we find no error in the trial court’s denial of Archie’s motion for new trial premised on claims of ineffective assistance of counsel.

Decided February 14, 2001.

Mario A. Pacella, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews, P. J, and Miller, J., concur.

       272 Ga. 845 (537 SE2d 58) (2000).

       Id. at 849.

        See Pickren v. State, 272 Ga. 421, 426 (8) (530 SE2d 464) (2000); Common v. State, 269 Ga. 470, 475 (8) (500 SE2d 329) (1998); Wilson v. State, 268 Ga. 527, 529 (5) (491 SE2d 47) (1997); Waldrip v. State, 267 Ga. 739, 751 (20) (482 SE2d 299) (1997); Rowe v. State, 266 Ga. 136, 137 (2) (464 SE2d 811) (1996); Crowe v. State, 265 Ga. 582, 594 (19) (458 SE2d 799) (1995); Gardner v. State, 263 Ga. 197, 200 (429 SE2d 657) (1993); Newton v. State, 259 Ga. 853, 854 (5) (388 SE2d 698) (1990); Walker v. State, 258 Ga. 443, 444 (370 SE2d 149) (1988); Kimbrough v. State, 254 Ga. 504, 505-506 (3) (330 SE2d 875) (1985); Driggers v. State, 244 Ga. 160, 162 (2) (259 SE2d 133) (1979); Davis v. State, 234 Ga. 730, 731 (2) (218 SE2d 20) (1975).

       (Citations and punctuation omitted.) State v. Griffin, 240 Ga. 470 (241 SE2d 230) (1978).

        Almond v. State, 180 Ga. App. 475, 480 (349 SE2d 482) (1986). See United States v. Atkinson, 297 U. S. 157, 160 (56 SC 391, 80 LE 555) (1936); Silber v. United States, 370 U. S. 717, 718 (82 SC 1287, 8 LE2d 798) (1962). See also Weems v. State, 268 Ga. 142, 145-146 (11) (485 SE2d 767) (1997).

        Buice v. State, 239 Ga. App. 52, 56 (520 SE2d 258) (1999).

       (Citation and punctuation omitted.) Id.

       Id.

       (Citations and punctuation omitted.) Foreman v. State, 200 Ga. App. 400, 401 (3) (408 SE2d 178) (1991). See also Smith v. State, 238 Ga. App. 605, 606 (2) (520 SE2d 13) (1999); Smith v. State, 224 Ga. App. 819, 820-821 (2) (481 SE2d 896) (1997).

        O’Brien v. State, 242 Ga. App. 344, 345 (529 SE2d 657) (2000).


text:
    A01A0178.
    LYONS v. THE STATE.
    (545 SE2d 614)
   Eldridge, Judge.

A Monroe County jury found Carlton Lyons guilty of vehicular homicide — driving while his license was revoked due to habitual violator status; vehicular homicide — driving under the influence (“DUI”) (alcohol — less safe driver); and habitual violator. The trial court sentenced Lyons under the vehicular homicide — DUI (alcohol — less safe driver) count and merged the other two offenses therein. He appeals. On review, we affirm Lyons’ conviction.

1. Lyons contends the trial court erred by failing to charge the jury on the offense of second degree vehicular homicide because there was evidence by which the jury could conclude that Lyons unintentionally caused the victim’s death by speeding and/or failing to maintain a lane. Under the facts of this case, we disagree.

(a) Second degree vehicular homicide consists of unintentionally causing the death of another through the commission of general traffic offenses, such as by speeding or failing to maintain a lane.

(b) First degree vehicular homicide — habitual violator status is defined as follows:

Any person who, after being declared a habitual violator as determined under Code Section 40-5-58 and while such person’s license is in revocation, causes the death of another person, without malice aforethought, by operation of a motor vehicle, commits the offense of homicide by vehicle in the first degree.

This is a status offense. And, under the statute, a driver is guilty of first degree vehicular homicide when he causes the death of another through the operation of a motor vehicle — such as by speeding or failing to maintain a lane — when such driver’s license is revoked because of his habitual violator status.

(c) Clearly, then, acts which may otherwise constitute second degree vehicular homicide, but are committed while one’s license is revoked for being an habitual violator, are grounds for a conviction of first degree vehicular homicide.

(d) At trial, Lyons took the stand and conceded that at the time he hit the victim, his license was revoked due to his status as an habitual violator:

[Prosecutor:] So you knew your license was in revocation?
[Lyons:] That’s right.
[Prosecutor:] The day you drove that automobile, January 17, 1999, you knew your license was in revocation?
[Lyons:] Yes, sir.
[Prosecutor:] You knew you had not done what you needed to do to get a license, you had a revoked license; correct?
[Lyons:] Correct. ... I knew I didn’t have a driver’s license, yes, sir.

The prosecutor also introduced a properly served notice that Lyons’ license was revoked because of his status as an habitual violator and would remain revoked “until requirements of Code Section 40-5-62 are complied with.” The notice was signed by Lyons.

(e) Since Lyons unequivocally admitted that he was operating the motor vehicle while his driver’s license was revoked for being an habitual violator, the lesser offense of second degree vehicular homicide was not available to him. Evidence that Lyons unintentionally caused the death of the victim while speeding and/or failing to maintain a lane was as a matter of law a basis for first degree vehicular homicide by virtue of having been committed while Lyons’ license was admittedly and undisputedly under habitual violator revocation. In a first degree vehicular homicide case, where the undisputed evidence shows that the defendant was operating the motor vehicle while his license was revoked due to habitual violator status, it is not error to refuse to give a charge on second degree vehicular homicide.

Decided February 14, 2001

2. Lyons claims the trial court should have charged the jury separately with regard to proximate cause. However, we find no error. Lyons did not request a separate charge on proximate cause, which is in itself dispositive of the issue. Further, Lyons concedes that the trial court’s charge tracked the language of the vehicular homicide statute, OCGA § 40-6-393, including that the offense is committed when a person

causes the death of another person by operating a motor vehicle after having been declared a habitual violator . . . [or when a] person causes the death of another person by driving or being in actual physical control of any moving vehicle while under the influence of alcohol or any drug to a degree which renders the person incapable of driving safely.

Accordingly, taking the charge as a whole, there was no error.

3. Lyons challenges the sufficiency of the evidence to support his conviction for first degree vehicular homicide — DUI (alcohol — less safe driver), claiming that the State failed to prove beyond a reasonable doubt that his driving under the influence of alcohol was the proximate cause of the victim’s death. We disagree. Lyons admitted he hit the victim while driving on an evening that Lyons describes as “kind of raining, misty raining, and fog was starting to send up from the highway. I could not see anything, anybody.” The State’s evidence showed that Lyons had been drinking prior to getting behind the wheel. In fact, Lyons admitted he had been drinking alcohol that day, but testified that “I had time to get straight.” This evidence was sufficient for the jury to determine whether Lyons’ alcohol consumption made him less safe to drive under such weather conditions. “It was for the jury to determine whether, in the absence of the above factors, the decedent’s death could have been avoided.” Accordingly, the evidence was sufficient for a rational trier of fact to have found Lyons guilty of first degree vehicular homicide — DUI (alcohol — less safe driver).

Judgment affirmed.

Andrews, P. J., and Miller, J., concur.

Virgil L. Brown & Associates, Larkin M. Lee, for appellant.

Richard G. Milam, District Attorney, Mark S. Daniel, Paul E. Hemmann, Assistant District Attorneys, for appellee.

       OCGA § 40-6-393 (b). The statute specifically excludes the traffic offenses of meeting and passing a school bus, hit and run, reckless driving, DUI, and fleeing pursuing police officers.

       OCGA § 40-6-393 (c).

       See OCGA § 40-5-62 for conditions to obtain a driver’s license after revocation for habitual violator. See also Grisson v. State, 237 Ga. App. 559 (1) (515 SE2d 857) (1999).

       See, e.g., Hy v. State, 232 Ga. App. 247, 249 (2) (501 SE2d 583) (1998).

       See generally Looney v. State, 232 Ga. App. 828, 829 (3) (503 SE2d 79) (1998).

       Mote v. State, 212 Ga. App. 551, 553 (2) (442 SE2d 799) (1994).

        Miller v. State, 236 Ga. App. 825, 829 (3) (513 SE2d 27) (1999).


text:
    A01A0439.
    COLLINS v. THE STATE.
    (545 SE2d 607)
   Eldridge, Judge.

A Fulton County jury found Michael Collins guilty of driving under the influence of alcohol (“DUI”) — less safe driver. In his sole enumeration of error, he contends that he received ineffective assistance of counsel at trial because his trial attorney failed to object to testimony from one of the arresting officers that Collins “failed” the field sobriety tests given on the scene.

Trial counsel handled Collins’ motion for new trial in the court below, so a claim of ineffective assistance of counsel was not raised therein and no evidence has been adduced on this issue. Further, the record shows that the instant appeal is the earliest practicable moment that current counsel could raise an ineffective assistance claim against trial counsel. Notwithstanding, if Collins’ claim of error can be resolved as a matter of fact or law upon the existing record, we will not remand this case.

To establish ineffectiveness, a defendant must prove that his trial counsel’s performance was deficient and the deficiency prejudiced his defense to the extent that there was a reasonable probability the result of the trial would have been different but for defense counsel’s unprofessional deficiencies. Absent a showing of prejudice, inquiry into counsel’s alleged deficiency is unnecessary.

We agree with Collins that the term field sobriety “tests” is a misnomer. “These are physical dexterity exercises that common sense, common experience, and the ‘laws of nature’ show are performed less well after drinking alcohol.” However, it does not follow that using the word “failed” in conjunction with the misnomer “tests” demands objection by a defense counsel or ineffective representation results. The pertinent question here is whether the outcome of the trial would have been different if the officer had testified that Collins “did not properly perform the field sobriety exercises,” rather than Collins “failed the field sobriety tests.” We think not. The substance of the testimony would have been the same. And Collins has not shown that the semantics in which the inculpatory facts were couched affected the outcome of the trial.

Further, and contrary to Collins’ position, our decisions in Wofford v. State and Cantwell v. State do not stand for the proposition that an officer’s use of the word “failed” in relation to field sobriety tests is “inadmissible.” In neither case has this Court addressed the merits of such term.

In Wofford, the trial court ruled in limine that the arresting officer “could not use the words he passed or failed a test.” We were asked to review the trial court’s subsequent denial of defendant’s motion for mistrial based on a violation of the trial court’s in limine ruling. Our decision was grounded in the trial court’s discretion in such matters; we did not hold that the term “failed” was inadmissible.

In Cantwell, the issue was the trial court’s refusal to allow the defendant to cross-examine an arresting officer on the methods and procedures promulgated by the National Highway Traffic Safety Administration (“NHTSA”). We held that when an officer testifies as a lay witness without referring to any “points” system or using the words “pass” or “fail,” cross-examination on NHTSA procedures is irrelevant, and thus the trial court did not abuse its discretion in refusing to permit such cross-examination. We did not hold that the term “failed” is inadmissible.

Here, as a matter of law, Collins has not demonstrated that there is a reasonable probability the result of the trial would have been different if defense counsel had objected to the arresting officer’s use of the term “failed” in relation to the field sobriety tests. Clearly, alternative language conveying the fact that Collins did not adequately perform the tests would have had the same inculpatory effect. And, in fact, a second arresting officer testified at trial as to the same damaging facts, albeit absent the language about which Collins now complains. Since as a matter of law Collins has not demonstrated the prejudice prong of the two-prong Strickland test, remand is unnecessary in this case.

Judgment affirmed.

Andrews, P. J., and Miller, J., concur.

Decided February 14, 2001.

Wanda S. Jackson, for appellant.

Joseph J. Drolet, Solicitor, Marko L. Burgar, Assistant Solicitor, for appellee.

        Gomillion v. State, 236 Ga. App. 14 (512 SE2d 640) (1999).

       (Citations omitted.) Hardegree v. State, 230 Ga. App. 111, 113 (4) (495 SE2d 347) (1998).

        Hawkins v. State, 223 Ga. App. 34, 36 (476 SE2d 803) (1996).

       234 Ga. App. 316 (506 SE2d 656) (1998).

       230 Ga. App. 892 (497 SE2d 609) (1998).

        Wofford v. State, supra at 316-317.

        Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).


text:
    A01A0679.
    In the Interest of J. B., a child.
    (545 SE2d 609)
   Eldridge, Judge.

Both parents appeal the trial court’s October 2000 order terminating their parental rights to J. B. For the reasons discussed below, we affirm.

The standard of review of a juvenile court’s decision to terminate parental rights is whether, after reviewing the evidence in the light most favorable to the appellees, any rational trier of fact could have found by clear and convincing evidence that the parents’ right to custody of the children has been lost. In the Interest of E. C., 225 Ga. App. 12, 13 (482 SE2d 522) (1997). “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 R. N., 224 Ga. App. 202 (480 SE2d 243) (1997); In the Interest of B. R, 207 Ga. App. 242, 244 (427 SE2d 593) (1993).

Viewed in this light, the evidence showed that J. B. was born in November 1992 and that the child is currently in foster home care and is subject to the continuing supervision of the Fulton County Department of Family & Children Services (“DFCS”) pursuant to court order. In October 1998, the court removed J. B., along with her sister R. B., from her parents’ custody. On March 15, 1999, the court determined that J. B. and R. B. were deprived based on the following: (1) R. B.’s allegation of the father’s sexual abuse; (2) criminal charges pending against the father; (3) the mother’s repeated denial of any such sexual abuse; (4) the need for intensive counseling for both parents; (5) the inability of the children’s temporary legal guardian and brother to provide a home, care, or support for the children; (6) the brother’s request that the DFCS remove the children from his home; and (7) the fact that reasonable efforts had been made to prevent the children from entering DFCS custody. The parents stipulated to this petition alleging deprivation.

Shortly after March 15, 1999, a case plan was instituted and given to the parents to reunite them with J. B. and R. B. This case plan enumerated four goals: (1) that the father attend a sexual offender treatment program; (2) that both parents continue with individual and family counseling; (3) that both parents visit their children; and (4) that both parents pay child support. The goals were to be reassessed every six months based on the parents’ progress. In April 2000, the DFCS added the additional requirement that the father continue treatment in the sexual offender program and follow its recommendations.

On October 28, 1999, the trial court extended DFCS’ temporary legal custody for 12 months based on the court’s finding that J. B. continued to be a deprived child. The trial court found that J. B.’s parents had not ameliorated the previous conditions of deprivation and were failing to achieve all of the goals in the case plan. Specifically, the court determined that the father failed to complete appropriate counseling geared toward the alleged sexual abuse which related directly to the original removal of the children. Moreover, the criminal sexual abuse charges against the father were still pending. Further, the mother continued to deny any sexual abuse and chose to remain in the same residence with the father despite the allegations of sexual abuse. As such, the court reasoned at that time, there was risk of further abuse if J. B. were to be returned even to the mother’s custody.

On May 24, 2000, the Georgia Department of Human Resources, acting through the DFCS, filed a petition for termination of parental rights. The petition emphasized the aforementioned reasons and added that neither parent had contributed to the support or maintenance of the child and that the father had failed to attend and successfully complete a sexual offender treatment program as required by the instituted case plan. Finally, the DFCS argued that the mother failed to protect J. B.’s sibling from acts of sexual abuse, exposing J. B. to risk which substantiated a lack of proper parental care or control.

On September 12, 2000, the petition for termination was heard and concluded only as to J. B., in that R. B. was no longer a minor. The trial court heard evidence from a DFCS agent who was the case manager of J. B. and three therapists, one of whom was the Director of the Highland Institute for Behavioral Change. These witnesses had personal knowledge of the reunification plan ordered by the court and the parents’ failure to comply with the same. The most recent case plan and case review were tendered to the court without objection as evidence. JoAnn Dixon, the DFCS caseworker, testified that to her knowledge, no child support had been paid. She further stated that the father’s sexual offender treatment program was ongoing and had not been completed. Moreover, Dixon testified that the mother still maintains that no sexual abuse occurred. Lastly, Dixon testified as to returning J. B. to her parents that: “the agency feels that at this time, . . . we’re unable to determine if what has happened previously with the other children and with the older sibling, who made the allegations, that this same type of behavior will not occur to her.” The Highland Institute Director testified that the father “showed all the characteristics that would give . . . concern that he was, in fact, a sexual offender.” She also testified that the father had made no progress through counseling and that J. B. would be at risk of sexual abuse if returned to the parents’ custody. Dr. Roys, the father’s therapist, testified that the father had made no progress over two months of treatment. On October 16, 2000, the court entered a termination order finding parental misconduct or inability within the meaning of OCGA § 15-11-94 (b) (4) in that the child is a “deprived child” as the term is defined in OCGA § 15-11-2. The order enumerated specific factual findings and conclusions of law in compliance with OCGA § 15-11-94. The parents appeal this termination order. Held:

In two enumerations of error, the parents challenge the sufficiency of the evidence, asserting that: (1) the evidence failed to demonstrate the parents’ present parental misconduct or inability or that any prior deprivation is likely to continue into the future and is unlikely to be remedied; and (2) termination was incorrect because the parents were not given the opportunity to comply with the reunification plan before termination proceedings were initiated. We disagree.

In considering the termination of parental rights, the court shall first determine whether there is present clear and convincing evidence of parental misconduct or inability as provided in subsection (b) of this Code section. If there is clear and convincing evidence of such parental misconduct or inability, the court shall then consider whether termination of parental rights is in the best interest of the child, after considering the physical, mental, emotional, and moral condition and needs of the child who is the subject of the proceeding, including the need for a secure and stable home.

OCGA § 15-11-94 (a).

The first factor in the determination of parental misconduct or inability is consideration of whether the children are deprived. OCGA § 15-11-94 (b) (4) (A) (i); see also OCGA § 15-11-2 (8) (A). In the instant case, J. B. and her sister were determined to be deprived in March 1999 and were removed from the parents’ care. For a second time, in October 1999, J. B. was determined deprived, and an extension of custody was granted to DFCS. The parents did not challenge either determination, and, therefore, the parents are bound by that finding. In the Interest of M. L. P., 236 Ga. App. 504 (512 SE2d 652) (1999); In the Interest of E. C., supra at 15; In the Interest of T. B. R., 224 Ga. App. 470, 473 (1) (a) (480 SE2d 901) (1997); In the Interest of B. P., supra.

In addressing the second factor, the trial court must consider whether there has been a lack of proper parental care or control which caused the deprivation. OCGA § 15-11-94 (b) (4) (A) (ii). It is well established that lack of proper care may be established by showing “past physical, mental, or emotional neglect of the child or of another child by the parent.” In the Interest of M. L. P, supra; OCGA § 15-11-94 (b) (4) (B) (v).

[W]here the child is not in the'custody of the parent who is the subject of the proceedings, in determining whether the child is without proper parental care and control, the court shall consider, without being limited to, whether the parent without justifiable cause has failed significantly for a period of one year or longer prior to the filing of the petition for termination of parental rights: (i) To develop and maintain a parental bond with the child in a meaningful, supportive manner; (ii) To provide for the care and support of the child as required by law or judicial decree; and (iii) To comply with a court ordered plan designed to reunite the child with the parent or parents.

OCGA § 15-11-94 (b) (4) (C).

In this case, J. B. and her sister were removed from the home due to allegations of sexual abuse (appellant-father had spoken to and touched sister R. B. in an inappropriate sexual manner) in October 1998. Subsequently, the parents lost custody by order of court; this order was extended for 12 additional months because the original conditions of deprivation had not been eliminated. Since that time, the parents have not regained custody of J. B. No verifiable proof of the parents’ payments of child support were proffered to the lower court, only unsubstantiated testimony of the mother. Moreover, no proof was tendered to show that the parents had completed parenting sessions as required by the case plan. Further, the father’s enrollment in a sexual offender treatment program did not take place until the juvenile court judge threatened the father with a 20-day jail sentence. The father continues to be faced with pending criminal charges; yet, the mother remains in denial of any charges and at the residence of the father.

The parents seem to argue that their past conduct was the sole reason for the lower court’s order for termination and, therefore, irrelevant to the question of their alleged “present” fitness as parents. We strongly disagree. A history of alleged sexual abuse taken together with a current denial of any alleged abuse, failure to complete a sexual offender treatment program, failure to pay child support, and failure to complete the goals set forth by the State clearly establish present conduct from which a factfinder can infer that the parents are not equipped to support J. B. in the future. In the Interest of T B. R., supra.

The parents further argue that the father had not been discharged or released from his sexual offender treatment program at the time of the termination hearing and, therefore, termination was improper or, at least, premature. For this contention, the parents rely on Dr. Roys’ testimony that the father’s improvement might be “possible,” even though no evidence of improvement had been shown up to that point. Further, Mindy White, the father’s individual therapist, testified at the time of the hearing that the father was still very defensive, in denial, and trying to rationalize his behavior. It is well established that “[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.) In the Interest of M. L. P., supra at 509; In the Interest of R. N., supra at 205 (2). For this Court to construe Dr. Roys’ testimony as more than a mere “positive promise” transcends the bounds of credibility, and this Court’s standard of review; ample evidence exists in the record of negative past and present fact. In the Interest of R. N., supra at 202; In the Interest of M. N. L., 221 Ga. App. 123, 124 (470 SE2d 753) (1996) (trial court, not an appellate court, must determine whether a parent’s conduct warrants hope of rehabilitation).

Once the determination has been made that a lack of parental control has caused the child to be deprived, the trial court must consider: “whether termination of parental rights is in the best interest of the child, after considering the physical, mental, emotional, and moral condition and needs of the child who is the subject of the proceeding, including the need for a secure and stable home.” OCGA § 15-11-94 (a); In the Interest of M. L. P., supra at 510.

In making such determination:

those same factors which show the existence of parental misconduct or inability can also support a finding that the termination of parental rights of the defaulting parent would be in the child’s best interest. Thus, a finding as to whether the termination of parental rights is in the best interest of the child represents, in essence, a finding as to whether the specifics of the parental default that have otherwise been found to exist are of such magnitude as to warrant the conclusion that the child . . . would be better served by the grant of the petition to terminate.

Decided February 14, 2001.

Dawn D. Ballard, Thomas J. Thomas, for appellants.

(Citations, punctuation and emphasis omitted.) In the Interest of B. P., supra at 245; In the Interest of D. W., 235 Ga. App. 281, 283 (509 SE2d 345) (1998); see also In the Interest of R. N., supra at 205.

The termination of parental rights is a severe measure. However, a termination hearing seeks above all else the welfare of the child. In determining how the interest of the child is best served, the juvenile court is vested with a broad discretion which will not be controlled in the absence of manifest abuse.

(Citations and punctuation omitted.) In the Interest of A. A. G., 146 Ga. App. 534, 535 (246 SE2d 739) (1978); see also Powell v. Dept. of Human Resources, 147 Ga. App. 251 (248 SE2d 533) (1978). The evidence of record overwhelmingly supports the trial court’s proper finding that the parents’ past and present conduct establishes grounds for termination. Even though 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. In the Interest of R. N., supra at 204; In the Interest of A. M. B., 219 Ga. App. 133, 134 (464 SE2d 253) (1995). The trial court was entitled to infer from the evidence that the same pattern of deprivation would continue if J. B. was reunited with her parents.

Despite the fact that the parents have made an attempt to comply with the reunification plan, “ ‘the trial court must determine whether a parent’s conduct warrants hope of rehabilitation, not an appellate court.’” (Citations omitted.) In the Interest of M. L. P., supra at 509; In the Interest of M. N. L., supra; In the Interest of T. B. R., supra at 475 (efforts to comply with reunification plan fell “very short of negating years of. . . harmful neglect”). The evidence presented supports a finding by the trial court that it is very likely that the deprivation of J. B. will continue and that J. B. will be harmed thereby.

Upon review of the trial court’s order and the entire record, this Court finds that the trial court did not abuse its discretion in terminating the parents’ rights to J. B. As such, the trial court correctly determined that there was sufficient clear and convincing evidence to support termination. There was no error.

Judgment affirmed.

Andrews, P. J., and Miller, J., concur.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Laura W. Hyman, Assistant Attorneys General, Hall & Rapoport, Robert E. Hall, for appellee.


author: Johnson, Presiding Judge.

text:
    A00A2247.
    McNEIL v. THE STATE.
    (545 SE2d 130)
   Johnson, Presiding Judge.

A judge, sitting without a jury, found Marcus McNeil guilty of possession of cocaine. He appeals, arguing that the trial court erred in denying his motion to suppress cocaine discovered in his pants pocket during a search of his person for weapons. He admits that he consented to a search, but urges that the invasive search of his pocket exceeded his limited consent to a search for weapons. We disagree and affirm the judgment of the trial court.

Viewing the evidence in a light favorable to the trial court’s ruling, the record shows the following: In executing a warrant to search Robert McNeil’s home for drugs, police officers entered the home at about 9:30 p.m. and found six men, including the appellant, inside. The area in which the men were congregated was small and crowded. In order to protect themselves and to prevent the destruction of evidence, the officers handcuffed the men, told them they were not under arrest, and escorted them outside so that the house could be secured and searched. Two of the officers testified that, in their experience, where there is drug activity, there are also weapons.

While McNeil was sitting on the ground outside with the other men, before he was searched, one of the officers asked the group if any of them had “any guns, needles or things” which would be considered weapons. The officer approached McNeil, helped him stand up, and told him, “I just need to check you and make sure you don’t have any weapons, needles, anything of that nature. Do you have anything on you? Do you mind if I search you?” The officer testified that he made it a point to say “search,” although later he stated that he could not recall if he actually mentioned “needles” in requesting consent from McNeil. The officer also testified that “we always ask about the needles because of just the possibility of getting stuck.”

McNeil replied “no” to the questions. Unsure of what McNeil meant by his response, the officer asked him if he meant that he did not mind or that he did not want the officer to search him. McNeil replied, “no, go ahead.” The officer began searching the outside of McNeil’s clothing, around the belt of his pants. Then,

just for safety, to make sure there’s no needles or anything, open knives, I start pulling the lining of the pocket out of each pocket. That way, I don’t have to stick my hand all the way in there. I don’t want to take a chance on getting poked or anything like that.

As the officer started pulling out the pocket lining, a plastic bag containing an off-white material was revealed. The object was about the size of a quarter and shaped somewhat like a gum ball. The material proved to be cocaine.

McNeil moved to suppress the cocaine, contending that he consented only to a search for weapons, not a full search for drugs, and the officer’s invasive search of his pockét exceeded the scope of his consent. The state countered that once consent was given, the officer was authorized to search McNeil’s pockets as part of his search for weapons. The trial court denied the motion, finding that McNeil consented to a search of his person for weapons and that the officer was in fact searching for weapons in McNeil’s pockets at the time the drugs were discovered.

In reviewing the denial of a motion to suppress, we construe the record to uphold the trial court’s findings and judgment. The trial court’s findings on issues of credibility and conflicting evidence are to be upheld unless they are clearly erroneous.

In executing a search warrant, in order to protect the officers and to prevent the disposal of evidence, police officers can detain persons who are on the premises but not named in the warrant. Officers cannot, however, legally search a person found on the premises but not named in the warrant, unless they have independent justification for a search. If the person gives a valid consent to search his person, his consent eliminates the need for either probable cause or a search warrant.

Where, as here, the officers base their authority to search on a person’s consent, the scope of the consent must be measured by all of the circumstances and not only by what the person says in response to a request to search. The intrusiveness of the search is limited by the permission granted, and only that which is reasonably understood from the consent may be undertaken. The standard for measuring the scope of a suspect’s consent is that of objective reasonableness — what would a typical reasonable person have understood by the exchange between the officer and the suspect?

Decided February 1, 2001

Reconsideration denied February 15,2001

Lenzer & Lenzer, Robert W. Lenzer, Thomas P. Lenzer, for appellant.

Daniel J. Porter, District Attorney, Shampa Banerji, Assistant District Attorney, for appellee.

In light of all of the circumstances, a reasonable person would have understood McNeil’s consent to include a search of the insides of his pants pockets. One of the officers had just asked the men if they had any weapons, including needles. When another officer asked McNeil individually if he could search him for weapons or similar objects, McNeil agreed and gave no indication that the officer could not empty his pockets in conducting the search. McNeil’s knowledge of what the officer was looking for factors into the scope of the consent. He knew the officer was looking for any weapons, including needles, which are small objects. Based on the videotape and other evidence, the trial court believed that McNeil and the others were asked if they had items like needles or knives, that McNeil consented to be searched for such objects, and that the officer was in fact searching for weapons, as evidenced by his careful removal of the lining to avoid being stuck by a needle or other sharp object. Because such items could be found in a pants pocket, McNeil’s consent to a search of his person for weapons could reasonably be understood to allow a search of his pants pockets. Considering all of the circumstances, the trial court did not err in finding that the search did not exceed the scope of the consent given. Thus, it did not err in denying McNeil’s motion to suppress.

Inasmuch as the search was justified based on consent, we need not address the issue of whether the search was also justified as a Terry pat-down frisk for weapons as part of the search of the premises.

Judgment affirmed.

Smith, P. J, and Phipps, J., concur.

        Davis v. State, 232 Ga. App. 450 (1) (501 SE2d 241) (1998).

       Id.

       OCGA § 17-5-28.

        State v. Varner, 239 Ga. App. 347, 348 (521 SE2d 247) (1999).

        Maxwell v. State, 211 Ga. App. 73 (438 SE2d 389) (1993).

        Springsteen v. State, 206 Ga. App. 150,152 (424 SE2d 832) (1992).

       Id.

       Id.; McGaughey v. State, 222 Ga. App. 477, 479 (474 SE2d 676) (1996).

        Springsteen, supra at 153.

       Id.

        Terry v. Ohio, 391 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).


author: Miller, Judge.

text:
    A00A2433.
    ROCKWELL v. LOCKHEED MARTIN CORPORATION.
    (545 SE2d 121)
   Miller, Judge.

Doris Rockwell sued her employer, Lockheed Martin Corporation, for injuries she sustained when she fell in Lockheed’s parking lot. Arguing that Rockwell’s claim is barred by the exclusive remedy of the Workers’ Compensation Act, Lockheed moved for summary judgment. The trial court agreed and granted Lockheed’s motion. Rockwell appeals this grant, and we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. We apply a de novo standard of review from a grant of summary judgment, and we view the evidence, and all reasonable inferences drawn from it, in the light most favorable to the nonmovant.

So viewed, the evidence showed that while traveling across a walkway on her way to the parking lot for her scheduled lunch break, Rockwell’s foot was caught on the handle of a metal dumpster lid causing her to fall, injuring her face, gums, and arm. While Rockwell was in the hospital, she was told by a representative of Lockheed’s workers’ compensation department that she had no claim for benefits because she had been on her lunch break. Rockwell’s former counsel concluded that, based on Lockheed’s responses to his request for admissions, Rockwell’s injury arguably did not occur during the course of her employment, and he therefore recommended that Rockwell pursue a claim of negligence. As a result, Rockwell sued in tort alleging negligence as well as nuisance and fraud and argues on appeal that Lockheed cannot deny her benefits and still contend that her tort claim is barred by the Workers’ Compensation Act.

Generally, where an employee is on a scheduled break and is not conducting her employer’s business, the Workers’ Compensation Act does not apply. But the “ingress and egress” rule is equally clear: Where the employee is still on her employer’s premises in the act of egressing those premises, even if on break, then the Workers’ Compensation Act does apply. Therefore, Lockheed may not deny Rockwell benefits based on the inapplicable “scheduled break” exception.

Decided January 30, 2001

Reconsideration denied February 15, 2001.

Eastman & Apolinsky, Stephen D. Apolinsky, for appellant.

Downey & Cleveland, Russell B. Davis, Alan J. Gibson, for appellee.

Both parties were requested by this Court to file supplemental briefs that address the issue of whether Rockwell’s workers’ compensation claim would still be viable. Although Lockheed contends that it does not know the status of Rockwell’s claim, Rockwell concedes that her workers’ compensation claim was filed within one year of the incident, it has not been dismissed, and she is still within the five years to request a hearing.

Therefore, as the Workers’ Compensation Act is Rockwell’s exclusive remedy, and Rockwell still has an opportunity to pursue her workers’ compensation claim, the trial court correctly granted summary judgment to Lockheed in this tort action.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

       See OCGA § 34-9-11 (a) (“[t]he rights and remedies granted to an employee by this chapter shall exclude all other rights and remedies of such employee ... on account of such injury. . . .”).

       OCGA § 9-11-56 (c).

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

        Swanson v. Lockheed Aircraft Corp., 181 Ga. App. 876, 878 (1) (a) (354 SE2d 204) (1987).

        Peoples v. Emory Univ., 206 Ga. App. 213, 214 (424 SE2d 874) (1992); Crawford v. Meyer, 195 Ga. App. 867 (395 SE2d 327) (1990) (the period of employment includes a reasonable time for ingress to and egress from the place of work, while on the employer’s premises including the employer’s parking lot).

       Under OCGA § 34-9-82 (a), the right to compensation is not barred if a claim is filed within one year after injury. See also OCGA § 34-9-100 (c) (“any application for hearing filed with the board pursuant to this Code section for which no hearing is conducted for a period of five years shall automatically stand dismissed”).


text:
    A00A2484.
    THOMPSON v. THE STATE.
    (544 SE2d 510)
   Blackburn, Chief Judge.

Charles Edward Thompson, pro se, appeals the trial court’s denial of his motion for modification of the terms and conditions of his probation, contending that he was not notified of certain conditions of his probation until nine years after he received a sentence of ten years imprisonment followed by five years probation. Thompson also contends that he was not given a determinate sentence concerning the terms and conditions of his probation. Because Thompson did not provide the trial court, nor this Court, with any evidence to support his contentions, we affirm.

Thompson did not submit anything to the trial court other than his motion to modify the terms and conditions of his probation. The trial court summarily denied the motion. Thompson has not attempted to supplement the record on appeal.

Decided January 19, 2001

Reconsideration denied February 15,2001

Charles E. Thompson, pro se.

J. David Miller, District Attorney, Robert T. Gilchrist, Assistant District Attorney, for appellee.

“It is the duty of appellant to show error by the record and mere assertions of error in the brief do not suffice.” (Punctuation omitted.) Grogan v. State It is also appellant’s obligation to complete the record by taking steps to ensure that transcripts are filed in a timely manner. See Miller v. State. Accordingly, we are compelled to affirm.

Judgment affirmed.

Eldridge and Barnes, JJ., concur.

       The State did supplement the record on appeal with a document listing Thompson’s conditions of probation. The signature line for the defendant was blank, and a handwritten note indicated that Thompson refused to sign it.

        Grogan v. State, 230 Ga. App. 876, 877 (497 SE2d 589) (1998).

        Miller v. State, 222 Ga. App. 641, 642 (475 SE2d 690) (1996).


text:
    A00A2013.
    WHITE v. CITY OF ATLANTA.
    (545 SE2d 625)
   Miller, Judge.

Osie White sued the City of Atlanta in tort for damages arising from an incomplete and defective renovation construction to his home by a contractor under a home improvement grant. The trial court granted the City’s motion for summary judgment ruling that there was no independent duty arising from the contractual relationship between White and the City to sustain an action in tort. White appeals this ruling, and we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. We apply a de novo standard of review from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

So viewed, the evidence shows that in 1994, the City received a $3 million grant from the U. S. Department of Housing & Urban Development (HUD), to fund the City’s Home, Owner-Occupied Rehabilitation Grant Assistance Program. The City was responsible for ensuring that these funds were used in accordance with HUD requirements. The City offered White a grant to rehabilitate his residence. The grant program required White to take bids and select a contractor, to be approved by the City. White selected a contractor, and the City granted him $23,500 to be applied toward the improvements. In December 1994, the contractor submitted a request for partial payment for work it claimed was completed. The City paid the contractor $6,775 on December 22, 1994. White argued that the work was incomplete. On June 19,1996, White was informed (the contractor having been fired) that his grant was denied for failure to submit acceptable bids in a timely manner.

White sued in tort alleging negligence and seeking damages for depletion of the grant and for defective construction. He argued that the City owed him a duty to exercise ordinary care in disbursing his grant funds to the contractor and in inspecting the construction.

1. Regarding the depletion of the grant, White argues that the City did not exercise ordinary care in disbursing grant funds and did so without his authorization. If the City improperly advanced funds to the contractor as White contends, his remedy would be in contract and not tort. White did not sue in contract, nor did the court decide any issue of breach of contract; therefore, that issue is not before us.

2. Regarding the defective construction, the City argues that it cannot be held liable in tort because (1) its actions did not rise to the level of creating a special duty or relationship with White, and (2) its inspections of White’s home were for the City’s benefit and not for White’s.

A tort is the unlawful violation of a private right other than a breach of contract, OCGA § 51-1-1, but private duties may arise from statute, or flow from relations created by contract, express or implied. The violation of any such specific duty, accompanied with damage, gives a right of action in tort.

A homeowner does not have an action for damages for faulty construction against a lending or financing authority, even though the lender negligently inspects the construction, because the inspection is normally not made for the benefit of the homeowner but for the protection and benefit of the lender. An exception to this general rule, as recognized in Jordan v. Atlanta Neighborhood Housing Svcs., arises “when the lender’s financing activity extends beyond that of a conventional construction lender and engages the lender in activities actually connected to construction of the property.”

Decided February 15, 2001.

Slater & King, Scott R. King, for appellant.

White argues that Jordan governs here. In Jordan, the lender solicited the bids, monitored the construction, and assured the homeowner that the contractor’s deficiencies would be corrected once payment was made. Here White solicited bids and selected the contractor while the City approved the contractor and inspected the construction for payment. White has not shown that the inspection referred to was for his benefit. On the contrary, there is unrebutted evidence that the City’s Housing Rehabilitation Advisor for any particular project was responsible for ensuring that public funds were spent responsibly for work conforming to any applicable codes. Moreover, the record reflects White’s acknowledgment that the City assumed no responsibility for the work performed nor did it warrant any work performed.

If any exception to the general rule (that the inspection is made for the benefit of the City) is made, it will have to be based on some clear promise of the lender to perform certain protective functions, and upon a clear and distinct participation in the activity which resulted in the damage. Here the evidence does not show a clear promise on the part of the City to perform any protective functions on behalf of White.

The City’s financing activity in distributing federal HUD money did not extend beyond that of a conventional construction financing authority. Therefore, the court did not err in granting summary judgment to the City in this negligence action.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

Bernard R. Thomas, Sr, Susan R Langford, Debra A. Alford, for appellee.

       OCGA § 9-11-56 (c).

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

       Attached to White’s summary judgment brief are two letters which we do not consider as they are not authenticated and therefore are not competent evidence. See OCGA § 9-11-56 (c).

        Constr. Lender v. Sutter, 228 Ga. App. 405, 410 (2) (491 SE2d 853) (1997).

       (Citations and punctuation omitted.) First Fed. Sav. Bank of Brunswick v. Fretthold, 195 Ga. App. 482, 484 (394 SE2d 128) (1990).

        Russell v. Barnett Banks, 241 Ga. App. 672, 674 (527 SE2d 25) (1999); Fretthold, supra, 195 Ga. App. at 485.

       171 Ga. App. 467 (320 SE2d 215) (1984).

       (Citation and punctuation omitted.) Fretthold, supra, 195 Ga. App. at 485; Jordan, supra, 171 Ga. App. at 467-468 (1); see Sutter, supra, 228 Ga. App. at 410 (2).

        Jordan, supra, 171 Ga. App. at 468 (1).

       See Sutter, supra, 228 Ga. App. at 410 (2) (contract specified that all inspections are for the benefit of the lender and disclaimed any liability for the contractor’s work; therefore, the exception outlined in Jordan did not apply).

        Russell, supra, 241 Ga. App. at 674 (lender is not insurer of contractor’s work, unless clear promises appear to the contrary).


text:
    A01A0270.
    TRUEBLOOD v. THE STATE.
    (545 SE2d 628)
   Eldridge, Judge.

A DeKalb County jury found Donald Trueblood guilty of two counts of armed robbery, one count of kidnapping with bodily injury, and one count of kidnapping. The convictions arose from Trueblood’s participation in an incident at the Happy Mart convenience store in Tucker, DeKalb County, wherein at 10:45 p.m., Trueblood and two other perpetrators approached Musa Jama who was locking the front door of the Happy Mart; hit him in the head with a gun; pointed the gun at him; demanded money; took his wallet; forced him inside the Happy Mart; forced the owner of the Happy Mart back inside the store at gunpoint; forced the owner to open the store safe and turn over the $4,000 inside; and then fled the scene. Trueblood appeals. Upon review, we affirm.

1. Trueblood contends the State failed to prove identity, i.e., that Trueblood was one of the three men involved in the armed robbery/ kidnapping at the Happy Mart. However, the owner of the Happy Mart was familiar with Trueblood because he came into the Happy Mart fairly frequently. The owner positively identified Trueblood as one of the participants in the armed robbery/kidnapping. Both Jama and the Happy Mart owner testified that all three men at the Happy Mart were active participants in the armed robbery/kidnapping. Further, Trueblood gave a statement to the police admitting he was one of three men at the Happy Mart during the armed robbery, although he claimed that he was merely present during the incident.

Given the jury’s sole responsibility to resolve conflicts in the evidence and determine the credibility of the witnesses, we find this evidence sufficient for a rational trier of fact to find beyond a reasonable doubt that Trueblood was a party to the crimes for which he was indicted and convicted.

2. We find meritless Trueblood’s contention that Jama was incompetent to testify under OCGA § 24-9-5 (a), which claim he improperly raises as a part of his challenge to the sufficiency of the evidence. Trueblood fails to direct our attention to any such objection at trial, and we find none. Thus, this issue is waived. Moreover, there is absolutely nothing in the record which demonstrates that Jama could not understand the nature of his trial oath simply because he is originally from Somalia and speaks in halting English. In his brief, Trueblood attempts to cull the record in order to cite those relatively few places wherein Jama could not understand the questions posed; however, such attempts misrepresent the breadth of Jama’s testimony and are unpersuasive.

Decided February 15, 2001.

Paola F. Torselli, for appellant.

J Tom Morgan, District Attorney, Barbara B. Conroy, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews, P. J, and Miller, J., concur.

        Drake v. State, 238 Ga. App. 584, 586 (1) (519 SE2d 692) (1999).

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See OCGA § 16-2-20 (a).

       “[P]ersons who do not have the use of reason, such as idiots, lunatics during lunacy, and children who do not understand the nature of an oath, shall be incompetent witnesses.” OCGA § 24-9-5 (a).

        Smith v. State, 207 Ga. App. 55, 57 (2) (427 SE2d 48) (1993).