text:
    A00A0016.
    SMALLS v. THE STATE.
    (528 SE2d 560)
   Eldridge, Judge.

Larry Smalls appeals from the denial of his motion for new trial, which followed his April 1998 burglary conviction. Smalls challenges two rulings by the trial court. After reviewing the record, this Court finds that the trial court did not abuse its discretion in its ruling, and therefore, we affirm Smalls’ conviction.

1. In his first enumeration of error, Smalls claims that the trial court abused its discretion in denying his motion for continuance. The relevant facts are as follows: this case was on the April 27, 1998 trial calendar for Clarke County Superior Court. The University of Georgia College of Law Legal Aid Clinic had been appointed to represent Smalls at trial. However, on April 27, 1998, another attorney, James Moss, appeared and announced to the trial court that Smalls had hired his firm that morning to represent him at trial. Moss then requested a continuance so that he could talk to Smalls, interview witnesses, and prepare for trial. The trial court ruled that he would not allow Smalls to delay the case by changing attorneys during the trial week. The trial court denied the motion and instructed Moss to be prepared for trial by mid-week.

On Wednesday, April 29, 1998, Moss filed a motion for continuance, alleging that Smalls had been involved in an automobile accident in March and that Smalls was taking pain medication which affected him physically and mentally and which prevented him from fully participating in his defense at trial. Although Smalls claims on appeal that he had attached a letter from his treating physician to the motion, the motion makes no reference to such letter, and no letter appears in the record. Therefore, it will not be considered on appeal. “This court cannot consider the factual assertions of the parties appearing in briefs when such evidence does not appear on the record. Moreover, parties cannot supplement the record merely by attaching matters to or reciting matters in their briefs.” (Citations and punctuation omitted.) Hixson v. Hickson, 236 Ga. App. 894, 895 (1) (512 SE2d 648) (1999). As such, no evidence was presented to support the motion for continuance prior to trial.

After hearing arguments on the issue, the trial court denied the motion for continuance. The trial court noted that, when it observed Smalls during the previous two days, he appeared to be ready for trial and did not complain of a medical condition. The trial court then ruled that the motion was untimely, that Smalls did not demonstrate due diligence in raising the issue in a timely manner, and that a continuance would serve only to delay the trial. See OCGA §§ 17-8-20; 17-8-22.

Following the jury trial, Smalls was convicted of burglary. During sentencing, Smalls admitted that he had obtained the prescription for pain medication when he went to the doctor on April 28, 1998, the day after the trial calendar call and the day before Moss filed his second motion for continuance.

Smalls filed a motion for new trial which alleged that the denial of the continuance was an abuse of discretion. After conducting a hearing and considering evidence on July 8, 1999, the trial court denied the motion for new trial. On appeal, Smalls relies on testimony that was allegedly presented at the hearing on the motion for new trial, but the record does not contain a transcript of the motion hearing. Therefore, in the absence of a transcript, we must presume that the trial judge ruled correctly on all issues presented during the hearing on the motion for new trial. Hixson v. Hickson, supra at 895.

Even if we look behind this presumption, however, this Court finds that the trial court did not abuse its discretion in denying Smalls’ motion for continuance. See OCGA § 17-8-22; Martin v. State, 268 Ga. 682, 683 (2) (492 SE2d 225) (1997). Smalls presented no evidence regarding the automobile accident or his resulting medical treatment at the time he made his motion for continuance. See Kervin v. State, 178 Ga. App. 601, 604 (2) (344 SE2d 441) (1986) (affirming the denial of a motion for continuance even though the defendant was unable to be present for trial due to his hospitalization); Sewell v. State, 162 Ga. App. 483-484 (2) (291 SE2d 783) (1982); cf. Frain v. State, 40 Ga. 529, 531 (1869) (reversing a conviction for failure to grant a continuance after the defendant produced documentation and witnesses evidencing his severe medical condition). Further, the trial court observed Smalls’ demeanor in court for two days before ruling on the continuance; it also observed Smalls during the trial and sentencing. See Stovall v. State, 106 Ga. 443, 445 (1) (32 SE 586) (1899); Gunter v. State, 63 Ga. App. 65, 69 (2) (10 SE2d 264) (1940). In deciding the motion for new trial, it is also very likely that the trial court considered Smalls’ tacit admission that he obtained the pain pills prescription the day before seeking the motion for continuance. Under the circumstances, the trial court did not abuse its discretion.

2. In his second enumeration of error, Smalls claims that the trial court erred in admitting evidence of a similar transaction. We disagree.

Under Williams v. State, 261 Ga. 640, 641-642 (2) (409 SE2d 649) (1991),

before admission of similar transaction evidence, the State must affirmatively show that (1) it is introducing evidence of an independent offense or act for an appropriate purpose, (2) there is sufficient evidence to establish that the accused committed the independent offense or act, and (3) there is sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter. A trial court’s determination that similar transaction evidence is admissible will not be disturbed absent an abuse of discretion.

(Citation and punctuation omitted.) Brooks v. State, 230 Ga. App. 846 (1) (498 SE2d 139) (1998).

The similar transaction at issue in this case was a burglary that occurred in August 1997, three months before the burglary in this case. See Division 2 (b), infra. The State notified Smalls’ counsel of its intent to introduce such evidence, pursuant to Uniform Superior Court Rule 31.3. In its notice, the State stated that the transaction was “directly relevant and probative of the issue of Defendant’s identity, motive, plan, scheme, bent of mind, intent and course of conduct in the instant case.” The trial court conducted a hearing on the motion, wherein the State confirmed that the transaction was being offered to demonstrate each of these purposes. After hearing arguments, however, the trial court ruled that the similar transaction would be admitted only for the purpose of demonstrating Smalls’ intent. Prior to admitting the evidence, the trial court instructed the jury on this limited purpose. The trial court also gave the limiting instruction as part of its charge to the jury at the close of the case.

(a) Smalls argues that the USCR 31.3 similar transaction notice was insufficient because it included “a rote recitation of any and all permissible purposes.” Smalls’ reliance on Rodriguez v. State, 211 Ga. App. 256 (439 SE2d 510) (1993), for this assertion is misplaced.

In Rodriguez [this Court] identified two reasons why the [S]tate should specify the proper purpose for which it intends to introduce similar transaction evidence in the notice: (1) to assist the trial court in making the essential preliminary determination as to whether the [Sjtate is seeking to introduce the evidence for an appropriate purpose; and (2) to afford the defendant the opportunity to investigate the validity, relevancy, and other aspects of admissibility of the prior offenses.

Hawks v. State, 223 Ga. App. 890, 891 (479 SE2d 186) (1996). See also Williams v. State, supra; Rodriguez v. State, supra at 258 (4) (a).

This Court also stated, in dicta, that the similar transaction notice “should clearly specify the proper purpose for which introduction of such evidence is sought, as an exception to the general rule of inadmissibility. [Cits.] ... A rote recitation of any and all permissible purposes will not suffice.” (Punctuation omitted.) Rodriguez v. State, supra at 258 (4) (a). However, the Court goes on to clarify this statement by noting that, unless the State tells the trial court why it is offering the evidence, the trial court is unable to determine whether the evidence is being offered for an appropriate purpose. Id. Rodriguez then instructs the trial court to “specify on the record which proper purpose or purposes permit introduction of the proffered similar transaction. [Cit.]” (Emphasis omitted.) Id. at 259 (4) (a). Contrary to Smalls’ argument on appeal, the obvious significance of Rodriguez to this case is its emphasis that the State must keep the trial court informed of why it is offering the similar transaction evidence and, once the decision is made to admit the evidence, the trial court must apprise both the defendant and the jury of the specific, limited purpose(s) of such evidence. Id. Rodriguez does not prevent the State from listing multiple purposes in its similar transaction notice, as long as the trial court subsequently determines whether those purposes are appropriate under the circumstances.

In this case, the State notified Smalls of the purposes for which it intended to utilize the similar transaction evidence. The trial court had the opportunity to consider arguments from both sides in order to make the “essential preliminary determination” as to which, if any, of these purposes were “appropriate purposes” under the circumstances. Hawks v. State, supra at 891. The fact that, in making such determination, the trial court rejected some of the proposed purposes for the evidence and limited its admissibility to the issue of intent does not retroactively invalidate the State’s notice. For this Court to so rule would chill the State’s efforts to introduce similar transactions for any and all relevant, appropriate purposes.

Further, Smalls failed to demonstrate that he was “surprised” by the State’s intention to present the transaction or otherwise denied the opportunity to investigate the circumstances of the similar transaction to evaluate its “validity, relevancy, and other aspects of admissibility.” Hawks v. State, supra. Accordingly, we find that the State’s USCR 31.3 notice was sufficient.

(b) Smalls also claims that the similar transaction was inadmissible because it was not sufficiently similar to this crime. The transaction involved a burglary which occurred in the same town in August 1997, three months before the crime in this case. The victim in the similar transaction was a college student who testified that she had not yet moved into a new residence when it was burglarized by Smalls. When she went by the house to check her answering machine, she noticed that her telephone, answering machine, and other electronic items were missing. She then heard a door close. The victim went outside and saw Smalls walking down the street away from her residence with one of her towels rolled up in his arms. She called 911 and pursued Smalls in her car. Smalls put down the towel and tried to walk away until police officers arrested him. The towel was recovered, still wrapped around the victim’s property.

In the case at trial, Smalls went into an empty residence while the victim, a college student, was out of town over the Thanksgiving holiday in 1997. The victim’s brother lived two doors away in the triplex. The brother heard noise coming from the victim’s residence and called 911. He looked into the window and observed someone moving around the residence. Police officers arrived and saw Smalls pick up a television and walk toward the back door. When Smalls saw the officers, he ran toward the front of the house. Police officers followed him inside and up the stairs. Suddenly, Smalls jumped from a second story window and landed a few feet in front of the victim’s brother. Smalls attempted to run from the premises but was arrested shortly thereafter. At the time of his arrest, Smalls had two Sega video game cartridges in his possession. The victim’s television and additional video game equipment subsequently were discovered on the back porch.

On the issue of whether the similar transaction was sufficiently similar to the crime charged to be admissible in this case,

[t]he law does not require that a similar transaction crime be identical to the crime charged. There can be a substantial variation of circumstances where there exists a logical connection between crimes which are essentially dissimilar. The issue of admissibility of extrinsic transactions has never been one of mere similarity. It is, rather, relevance to the issues in the trial of the case. The State may only have the burden of showing a logical connection between crimes which are essentially dissimilar. When similar transaction evidence is being introduced to prove motive, intent, or bent of mind, it requires a lesser degree of similarity to meet the test of admissibility than when such evidence is being introduced to prove identity.

(Citation and punctuation omitted; emphasis in original.) Maxey v. State, 239 Ga. App. 638, 640-641 (3) (521 SE2d 673) (1999). See also Raulerson v. State, 268 Ga. 623, 631 (8) (491 SE2d 791) (1997); Banks v. State, 225 Ga. App. 754, 755 (2) (484 SE2d 786) (1997); Brooks v. State, supra at 847; McLeroy v. State, 184 Ga. App. 62, 63 (1) (360 SE2d 631) (1987). In this case, the evidence showed that Smalls entered the unoccupied residences of college students with the intent to commit theft. See id. The trial court found that the State made its required showing under Williams v. State, supra. The trial court did not err in admitting the similar transaction evidence for the limited purpose of demonstrating intent.

Decided January 21, 2000.

Jo Carol Nesset-Sale, for appellant.

Harry N. Gordon, District Attorney, John A. Pursley, Assistant District Attorney, for appellee.

Judgment affirmed.

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


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A00A0050.
    HOOD et al. v. SPRUILL.
    (528 SE2d 565)
   Eldridge, Judge.

Plaintiffs-appellants Leontina and Alfred Hood appeal from (1) the trial court’s grant of summary judgment to defendant-appellee Hugh Spruill in their action for breach of a general warranty deed guaranteeing good title to purchased property and (2) the trial court’s subsequent denial of their cross-motion for summary judgment thereon.

The Hoods purchased from Spruill approximately an acre of vacant land on the corner of East Cobb Drive and Johnson Ferry Road in Cobb County in order to build a Eurocar repair shop. The property contains a 50-foot-wide roadway easement with a paved road known as Five Points Lane running down the middle. The easement bifurcates the property from East Cobb Drive to Johnson Ferry Road and provides public access to both Johnson Ferry Road and Roswell Road. After purchase and the start of construction on the car repair facility, the Hoods were sued by an existing business owner when the construction encroached upon the easement and restricted public access to the road. The Hoods then filed suit against Spruill alleging breach of a general warranty deed conveyed at closing which guaranteed title to the property “against the lawful claims of all persons whomsoever.” The trial court granted Spruill’s motion for summary judgment and denied the Hoods’ cross-motion. The Hoods appeal. Held:

1. (a) Contrary to the Hoods’ assertions, the roadway easement at issue here is a right-of-way over private land for public use. OCGA § 32-1-3 (25). While the roadway easement is described in various ways in the documents of record before this Court, use is the determinative factor in designating it as “private” or “public.” In that regard, it is undisputed that “[t]he private drive, known as Five Points Lane, indicated on the attached plat was used as a public roadway for cars to access Johnson Ferry Road and all of the business entities on East Cobb Drive.” As such, Five Points Lane is a public roadway “open to the public and intended or used for its enjoyment and for the passage of vehicles.” OCGA § 32-1-3 (24). Five Points Lane is traversed by the general public and is not for use by only one or more specified individuals. See OCGA § 32-1-3 (21).

(b) The uncontradicted evidence of record shows that the Hoods admitted they knew about the public roadway easement at the time they entered into the purchase agreement. The purchase agreement, itself, states that the tract is “inclusive of an easement for transit across the property as shown on the exhibits and is acknowledged by purchaser” (Emphasis supplied.) The plat, which was one of the “exhibits” referenced above, specifically shows the easement as 50.89 feet wide. A Senior Associate with C. B. Richard Ellis, broker for the sellers, provided affidavit testimony that the Hoods had with them at the closing their broker, their attorney, and a title insurance agent representing their interests. The broker testified that “[t]he title insurance representative took approximately twenty (20) minutes to show the Hoods all the easements on the property” and that there “was a fifty (50) foot wide easement and that it must remain open for public ingress and egress.” This testimony went uncontradicted.

It has long been the law that “[t]he existence of a public road on the land, known to the purchaser, is not such an incumbrance as would constitute a breach of the covenant of warranty.” Desvergers v. Willis, 56 Ga. 515, 516 (1876). See also Shepherd v. Henderson, 169 Ga. App. 486, 487 (313 SE2d 503) (1984); Smith v. Tolbert, 211 Ga. App. 175 (438 SE2d 655) (1993); Richitt v. Southern Pine Plantations, 228 Ga. App. 333 (491 SE2d 528) (1997).

To hold that a public road running through a tract of land, which was known to the purchaser at the time of his purchase thereof, is such an incumbrance on the land as would constitute a breach of a covenant of warranty against incumbrances, would produce a crop of litigation in this state that would be almost interminable.

Desvergers v. Willis, supra at 516. Since the uncontradicted evidence of record shows that the Hoods knew prior to purchase about the public roadway easement running through the property, the trial court did not err in granting summary judgment to Spruill on the Hoods’ complaint for breach of the general warranty deed conveyed at purchase.

(c) The Hoods contend that even if they were aware at the time of purchase that there was a public roadway easement, they did not know it was 50 feet wide. However, the Hoods’ failure to ascertain the exact dimensions of the public roadway easement that they knew existed provides no basis for a claim against Spruill, the seller. The plat which was available at closing shows the dimensions of the roadway easement as 50.89 feet wide, and there is no evidence — or contention — that Spruill attempted to hide this fact.

(d) The purchase agreement specified that the property was to be taken subject to the roadway easement.* * The purchase agreement also contained a clause stating as follows:

Purchaser shall have a period of Seven Days (7) days from and after the date of this Agreement in which to examine title to the Property and to furnish Seller with a written statement of objections to the title to the Property, if any, other than (i) licenses and easements, if any, for public utilities serving only the Property and (ii) liens for ad valorem taxes not yet due and payable.

The Hoods filed no objections to title. They did not object to the fact that the roadway easement was 50 feet wide. “[T]he purchasers waived any warranty claims by virtue of their knowledge of the [roadway easement] prior to the closing and their failure to list it in their list of items to be cured upon completion of the title search.” Smith v. Tolbert, supra at 177.

2. Based on our decision in Division 1, we find no error in the trial court’s denial of the Hoods’ cross-motion for summary judgment. Accordingly, the Hoods’ remaining claims of error are without merit.

Judgment affirmed.

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

Decided January 21, 2000.

Mottern, Fisher & Rosenthal, Robert J. Mottern, for appellants.

Weinstock & Scavo, Louis R. Cohan, for appellee.

       The roadway easement is also described in public records as “a non-exclusive easement appurtenant for ingress and egress for pedestrian and vehicular traffic and utility purposes over, on, and across the property.”

       Because a public road easement running through a tract of land falls outside a general warranty of title against encumbrances, there is no discrepancy between OCGA § 44-5-63 and our decisions in Smith v. Tolbert, supra, and Richitt v. Southern Pine Plantations, supra, as the Hoods suggest.

       Contrary to the Hoods’ contention, nothing in this case implicates the “merger rule,” i.e., “that prior stipulations of a contract to convey property are merged in the final and formal contract.” (Citation and emphasis omitted.) Holmes v. Worthey, 159 Ga. App. 262, 266 (282 SE2d 919) (1981). Further, since a public road easement falls outside a general warranty of title, there is no contradiction between the purchase agreement in this case and the warranty deed — executed at the same time •— that would implicate “merger.”


text:
    A00A0234.
    In the Interest of D. M. H. et al., children.
    (528 SE2d 816)
   Eldridge, Judge.

D. Y. H. appeals from the termination of her parental rights to three of her children, D. M. H., E. P. H., and C. L. Y. This Court finds that the State proved that the children’s deprivation was caused by D. Y. H.; that deprivation was likely to continue; and that termination was in the best interests of the children. Therefore, we affirm.

Viewed in favor of the trial court’s judgment, In the Interest of J.M.B., 231 Ga. App. 875, 876 (501 SE2d 259) (1998), the relevant facts are as follows: D. Y. H. married E. H. in 1988. She had three children from previous relationships, including one of the children at issue in this case, C. L. Y, born in November 1987. D. Y. H. subsequently gave birth to E. H.’s child, E. P. H., in May 1989. In 1990, E. H. was imprisoned after stabbing D. Y. H. and committing an unrelated robbery.

While still married to E. H., D. Y. H. gave birth to D. M. H. in September 1991 as a result of a relationship with another man. As such, E. H. was the legal father of D. M. H. However, D. M. H. was placed with a maternal cousin at birth.

D. Y. H. first lost custody of C. L. Y, E. P. H., and their two older siblings in 1992, when the Department of Family & Children Services (“DFACS”) found the children to be neglected and removed the children from D. Y. H.’s care. A trial court’s finding that the children were deprived was not challenged by D. Y. H. At that time, D. Y. H. was homeless, unemployed, and abusing alcohol and illegal drugs. DFACS developed reunification case plans for D. Y. H. and provided substantial assistance in attempting to reunify the family.

In August 1996, the four oldest children were returned to D. Y. H. D. Y. H.’s cousin also returned D. M. H. to her care, without DFACS’ approval. Soon thereafter, D. Y. H. was fired from her job and faced eviction. In March 1997, DFACS again removed all five children on the basis of neglect. Among the allegations of that deprivation petition was that D. Y. H. failed to get medical attention for five-year-old D. M. H. after he was hit by a car and injured.

D. Y. H. subsequently was evicted and moved in with a man she described as her “boyfriend,” although she was still married to E. H. She rarely contacted or visited the children. While in foster care, D. M. H., E. P. H., and C. L. Y. did well academically, although D. M. H. had some problems with an attention deficit.

In March 1998, DFACS and the Citizens Review Panel decided to end reunification efforts. In August 1998, the State filed a petition to terminate the parental rights of D. Y. H. and E. H. A hearing was conducted on February 23, 1999, in Cobb County Juvenile Court. After hearing the evidence, the trial court concluded that the clear and convincing evidence fulfilled the statutory requirements of OCGA § 15-11-81 and supported termination. D. Y. H. timely appealed. Held:

In three enumerations of error, D. Y. H. attacks the sufficiency of the evidence as to the elements of OCGA § 15-11-81. Under OCGA § 15-11-81 (a),

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

(Punctuation omitted.) In the Interest of J. M. B., supra at 876. See also In the Interest of R. N., 224 Ga. App. 202 (480 SE2d 243) (1997). If the first prong is met, then the trial court must consider whether termination of parental rights is in the best interests of the children, after considering the children’s “physical, mental, emotional, and moral condition and needs, including the need for a secure, stable home. OCGA § 15-11-81 (a).” In the Interest of N B., 239 Ga. App. 336, 337 (521 SE2d 47) (1999).

1. In this case, deprivation was established by the trial court’s order in 1992, which was repeatedly extended and was not appealed by D, Y. H. See OCGA §§ 15-11-2 (8) (A); 15-11-81 (b) (4) (A) (i). D. Y. H. is, therefore, bound to such findings. In the Interest of J. M. B., supra at 878 (1) (a). Further, it is undisputed that, at the time the children were first taken away from her in 1992, D. Y. H. was addicted to illegal drugs and unable to care for the children. See OCGA § 15-11-81 (b) (4) (B) (ii). As such., the children were deprived in 1992.

Although the children were returned to D. Y. H. briefly in 1996, DFACS removed the children again in March 1997. As such, between 1992 and 1999, D. Y. H. has had custody of the children for less than a year. When determining whether children are deprived, i.e., without proper parental care and control, when the children are not in the custody of the parent who is the subject of the termination proceeding,

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) [t]o develop and maintain a parental bond with the child in a meaningful, supportive manner; (ii) [t]o provide for the care and support of the child as required by law or judicial decree; and (iii) [t]o comply with a court ordered plan designed to reunite the child with the parent or parents.

OCGA § 15-11-81 (b) (4) (C) (i)-(iii).

To this end, it is undisputed that D. Y. H. has seen C. L. Y. only once since August 1997, one year before the termination petition was filed. Her last visit with E. P. H. or D. M. H. was also in August 1997. Such limited contact clearly does not demonstrate an effort to “develop and maintain a parental bond with the [children] in a meaningful, supportive manner.” OCGA § 15-11-81 (b) (4) (C) (i). In fact, as the trial court found, “[t]his historical lack of contact with the children shows a serious disinterest in the welfare and development of the children.”

In addition, the evidence further supported the finding that the children were without parental care and control by demonstrating that D. Y. H. did not pay any child support or comply with the reunification plans. As such, clear and convincing evidence supported a finding that the children were deprived and that such deprivation was caused by D. Y. H.

2. Contrary to D. Y. H.’s contentions, the trial court found that the deprivation was likely to continue and will not be remedied.

Judging the credibility of [D. Y. H.’s] good intentions was a task for the juvenile court. The decision as to [the children’s] future must rest on more than positive promises which are contrary to negative past fact. Further, this Court has held that the trial court must determine whether a parent’s conduct warrants hope of rehabilitation, not an appellate court.

Decided January 21, 2000.

Bobby G. Adkins, Jr., for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Cheeley & King, John P. Cheeley, Sanders B. Deen, for appellee.

(Citations and punctuation omitted.) In the Interest of C. D. P., 238 Ga. App. 393, 395 (519 SE2d 37) (1999). See also In the Interest of R. N., supra at 205. The trial court’s finding is supported by clear and convincing evidence in the record.

3. Finally, D. Y. H. contends that the evidence failed to establish that the termination of her parental rights was in the best interests of the children. However, “[t]he same evidence showing parental misconduct or inability may, and here does, establish this requirement.” (Citations and punctuation omitted.) In the Interest of J. M. B., supra at 879 (2). D. Y. H.’s current living situation, which she admits cannot accommodate all three children, coupled with her longstanding inability or refusal to comply with reunification plans or bond with her children, supports a finding that termination is in the best interests of the children.

Further, the DFACS caseworker testified that all three children had very good prospects for permanent placement with different families. To paraphrase the DFACS caseworker, it would be tragic to require the children to spend several more years in foster care when permanent placements are available.

There was no error.

Judgment affirmed.

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

       The State also sought to terminate any rights of the biological fathers of C. L. Y. and D. M. H. on the basis that they failed to legitimate their children.

       During the 1999 legislative session, the Georgia General Assembly changed the termination standard, so that a parent must do more than engage in minimal communication to avoid termination under OCGA § 15-11-81 (b) (4) (C) (i). See Ga. L. 1999, p. 252, § 1. Instead, they must “develop and maintain a parental bond in a meaningful, supportive manner.” Id.


author: Johnson, Chief Judge.

text:
    A00A0332.
    GORDON v. THE STATE.
    (528 SE2d 838)
   Johnson, Chief Judge.

Darryl Gordon appeals his conviction for trafficking in cocaine, arguing that the trial court erred in denying his motion to suppress. For reasons which follow, we affirm.

When a motion to suppress is heard by a trial judge, that judge sits as the trier of facts and his findings will not be disturbed if there is any evidence to support them. The reviewing court must construe the evidence most favorably to uphold the trial court’s findings and judgment.

Viewed in such a light, the evidence shows that special agents with the Drug Enforcement Administration Airport Task Force received a telephone call from the Atlanta Police Department concerning information provided by an anonymous tipster. Although the agents referred to the tipster as a “concerned citizen,” the record shows that no officer provided evidence that the tipster was a “reliable informant” or evidence that the tipster satisfied the criteria for being labeled a “concerned citizen.” Notwithstanding this omission, we find that the information given was detailed enough to provide some basis for predicting Gordon’s future behavior and that the reliability of the information was established when a number of the details were corroborated by the investigation and observations of the agents. We therefore conclude that the agents had reasonable suspicion to stop Gordon.

The tipster gave Gordon’s full name, stated that Gordon would be traveling from Los Angeles to Las Vegas and then to Atlanta via American West flight 710, and informed the Atlanta Police Department that Gordon would be carrying cocaine on his person. The tipster described Gordon as a black male wearing a large, long shirt and black, baggy blue jeans. According to the tipster, Gordon was carrying a black backpack-type bag.

Agents with the DEA Airport Task Force confirmed the flight information given by the tipster, confirmed that Gordon was listed as a passenger on the flight, discovered that Gordon had checked bags, and waited at the gate for the plane to arrive. Subsequently, the agents observed a black male wearing clothing and carrying a bag matching the tipster’s descriptions come off the airplane and exit the Jetway. The individual appeared to be scanning the gate area trying to see if anyone was watching him. The agents followed Gordon to baggage claim, waited until he claimed his luggage, and then approached Gordon.

The agents identified themselves as police officers and showed Gordon their credentials. Gordon agreed to speak with the agents and allow them to see his airline ticket and identification. After confirming that Gordon was the individual identified by the tipster, agents advised Gordon that their job was to prevent drugs from coming through the airport and asked if they could search his person and his bags. Gordon became hostile and refused. Gordon told the agents that if they wanted to search his bags, they needed to get a search warrant. The agents then detained Gordon until they could obtain a search warrant. They drove him to their office outside the airport, handcuffing him for their safety and his safety due to his hostile behavior upon questioning and because they believed he was going to flee from their custody.

Prior to applying for the search warrant, the agents placed Gordon’s bags in a lineup with other bags and brought in a certified “drug dog.” The dog alerted on Gordon’s backpack as well as his checked bag. Gordon had been detained approximately 20 minutes before the drug dog alerted on his bags. A search warrant was obtained, and the subsequent search of the backpack revealed 576 grams of cocaine.

1. Gordon claims the evidence should have been suppressed because the agents had no independent knowledge of any wrongdoing justifying his detention other than the information from the anonymous tipster.

Contrary to Gordon’s contentions, the agents did have reasonable suspicion to stop and detain him. In evaluating whether there was reasonable suspicion, we must take into account the totality of the circumstances. Although a tip provided by an informant of unknown reliability will not ordinarily create a reasonable suspicion of criminal activity, reliability may be established if the tip is detailed enough to provide some basis for predicting the future behavior of the suspect and those details are corroborated by the observations of the police.

The tipster in this case accurately predicted Gordon’s future behavior in detail. The tipster provided detailed information including Gordon’s name, his physical description, a description of his clothing and carry-on bag, and information regarding his flight itinerary, including the route and airline. These details about Gordon and his trip were independently verified by the agents, some before his flight’s arrival in Atlanta and some after Gordon got off the airplane. We conclude that the tip, under the totality of attendant circumstances, provided reasonable, articulable suspicion to justify an investigative stop.

Decided January 24, 2000.

Steven M. Frey, for appellant.

Robert E. Keller, District Attorney, Adrian Britt, Assistant District Attorney, for appellee.

The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary it may be the essence of good police work to adopt an intermediate response. A brief stop of an individual, in order to determine his identity or maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.

In light of the verification of the information supplied by the tipster, coupled with the agents’ observations of Gordon’s behavior upon exiting the plane and his hostility upon being advised of the reason for his stop, the stop was reasonable.

2. Gordon was not detained an unreasonable amount of time. The agent’s reasonable suspicion that Gordon possessed drugs warranted detaining Gordon for the approximately 20-minute period before the arrival of the drug dog. The trial court did not err in denying Gordon’s motion to suppress.

Judgment affirmed.

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

        Dawson v. State, 238 Ga. App. 263 (518 SE2d 477) (1999).

       Id.

       See Stewart v. State, 217 Ga. App. 45 (456 SE2d 693) (1995); compare Dearing v. State, 233 Ga. App. 630 (505 SE2d 485) (1998).

       See Buffington v. State, 228 Ga. App. 810, 812 (492 SE2d 762) (1997).

        Solomon v. State, 236 Ga. App. 778 (513 SE2d 520) (1999).

        Stanley v. State, 213 Ga. App. 95, 96 (443 SE2d 633) (1994).

       See id.; State v. Holton, 205 Ga. App. 434, 436-437 (1) (422 SE2d 295) (1992).

       (Citations and punctuation omitted.) Solomon, supra at 780 (1).

       See id.; Stanley, supra.

        Sprauve v. State, 229 Ga. App. 478, 480 (2) (494 SE2d 294) (1997) (physical precedent only).


text:
    A99A2269.
    DUDLEY v. THE STATE.
    (527 SE2d 912)
   Johnson, Chief Judge.

A police officer charged with committing a felony or a misdemeanor while in the performance of his duties is entitled to certain procedural protections under OCGA § 17-7-52, including the right to be prosecuted only upon a grand jury indictment. But the protections afforded by OCGA § 17-7-52 do not apply to one who is no longer a police officer when a prosecution against him is commenced. Robert Dudley was the police chief in the town of Pineview when, during a traffic court proceeding, he had an argument with a city councilwoman and tried to arrest her for alleged disorderly conduct. During the incident, Dudley sprayed the councilwoman and others in court with pepper spray. About a month after the incident, Dudley resigned from the Pineview Police Department. After his resignation, the state charged Dudley by accusation with four counts of simple battery for having used the pepper spray, and he was eventually convicted of three of the counts. Were the misdemeanor charges by accusation improper because under OCGA § 17-7-52 Dudley could be prosecuted only upon a grand jury indictment? We hold that the accusation was not improper because it was filed after Dudley resigned from the police department, so he was no longer entitled to the rights given to police officers under OCGA § 17-7-52. Because Dudley’s challenge to the accusation lacks merit, as do his challenges to the evidence sufficiency and to his sentence, we affirm his simple battery convictions.

Robert Dudley became the police chief of Pineview in January 1996. During his time as chief, Dudley had several disagreements with Pineview City Council member Glenda McMillar. On the evening of January 2, 1997, Dudley was in the city court for hearings. McMillar was also present in the courtroom that evening to sign a property bond for a party appearing before the court.

While McMillar was in the courtroom, she and Dudley exchanged words. She claims that he made various threats to and accusations against her, and he claims that she swore at him. During the argument, Dudley told McMillar that she was under arrest for disorderly conduct, and he grabbed her wrist. She told him to remove his hands and pulled away from him. Dudley then sprayed McMillar in the face with pepper spray. She picked up a bullhorn that was on a nearby table and threw it at Dudley. He sprayed McMillar again, and she ran out of the courtroom.

Dudley chased after her but did not apprehend her that evening. On his way out of the courtroom, Dudley passed Wayne Bloodsworth and Sonya Popkin, a lawyer who had defended a number of people cited by Dudley for traffic offenses. According to Bloodsworth, as Dudley ran by them he sprayed the pepper spray directly at Popkin and the spray also hit Bloodsworth in his eyes, nose and mouth. Dudley denies spraying directly toward Popkin and Bloodsworth and claims that they were only accidentally hit with the spray.

McMillar, Popkin and Bloodsworth all suffered physical reactions to the pepper spray. McMillar was temporarily blinded, her skin burned and peeled, and her sinuses bled. Popkin also suffered burning skin and bleeding sinuses. Her vocal cords became inflamed, causing her to lose her voice, and she developed a mouth infection. The pepper spray also burned Bloodsworth’s eyes, nose and mouth.

About a month after the incident, in February 1997, Dudley terminated his employment as police chief. Then, in March 1997, the state filed an accusation charging Dudley with simple battery for spraying McMillar, Popkin, Bloodsworth and a fourth person who had been in the courtroom. On September 4, 1997, the state filed a new accusation naming a different fourth victim. Ultimately, the state prosecuted Dudley only on the three simple battery charges naming McMillar, Popkin and Bloodsworth as victims.

The jury found Dudley guilty of all three simple battery counts. And the trial judge sentenced Dudley to serve eight months in the county jail followed by twenty-eight months on probation. The judge also ordered that while on probation Dudley could have no activity in law enforcement, bail bonding, dog training or private investigating.

The court granted Dudley an appeal bond, imposing the same probation conditions while he is free on the bond. Dudley appealed from that portion of his appeal bond, arguing that it improperly restricted his employment rights. This court agreed with him and reversed those special conditions as part of his appeal bond.

Thereafter, the trial court denied Dudley’s motion for a new trial. Dudley then filed the instant appeal, arguing that the state improperly charged him by accusation rather than by indictment, that there is insufficient evidence to support the convictions and that his sentence constitutes cruel and unusual punishment.

1. Under OCGA § 17-7-52 (a), before a police officer is indicted by a grand jury for committing a crime while performing his duties, he is entitled to receive a copy of the indictment, to be present with counsel during the presentation of evidence to the grand jury and to make a sworn statement to the grand jury. OCGA § 17-7-52 (b) further provides that these requirements apply to both misdemeanor and felony prosecutions and that “no such prosecution shall proceed either in state or superior court without a grand jury indictment.” The purpose of OCGA § 17-7-52 is to protect police officers from being distracted from the performance of their duties while defending themselves against baseless charges. Given that purpose, this court has held that the protections afforded by OCGA § 17-7-52 do not extend to one who is charged with official misdeeds, but who is no longer employed as a police officer when the proceedings against him are commenced.

In the instant case, Dudley testified that he terminated his employment with the Pineview Police Department in February 1997. Thereafter, in March 1997, the state filed its original accusation against Dudley and then filed its new accusation in September 1997. Dudley therefore was not a police officer at the time the prosecution against him was commenced and was not entitled to the protections afforded to police officers by OCGA § 17-7-52. Consequently, the state was authorized to charge him by accusation, rather than by grand jury indictment, with the misdemeanor counts of simple battery. The trial court did not err in denying Dudley’s challenge to the prosecution upon the accusation.

2. On appeal from a criminal conviction, the appellant no longer enjoys the presumption of innocence, and this court does not determine witness credibility or weigh the evidence; rather, we view the evidence in the light most favorable to the prosecution to determine if a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The essential element of the three simple batteries charged in the instant case is that Dudley intentionally caused physical harm to the alleged victims.

Having reviewed the evidence in the light most favorable to the prosecution, we conclude that a rational trier of fact could have disregarded Dudley’s claim that he was merely exercising his duties as a police officer when he used the pepper spray and instead could have found beyond a reasonable doubt that he intentionally caused physical harm to McMillar, Popkin and Bloodsworth by using the pepper spray against them. The jury’s verdict was therefore supported by sufficient evidence.

3. Sentences that are within the statutory limits are not subject to the attack that they constitute cruel and unusual punishment.* A person convicted of simple battery shall be punished as for a misdemeanor. Such misdemeanor punishment includes confinement for a term not to exceed 12 months, and the sentencing judge may exercise his discretion to probate some or all of a misdemeanor sentence.

Here, the trial judge sentenced Dudley to three consecutive twelve-month terms for the three simple battery convictions, ordering Dudley to serve eight months in confinement and the rest of his sentence on probation. Because such a sentence is within the statutory limits, it does not constitute cruel and unusual punishment.

Decided January 13, 2000 —

Franklin H. Thornton, for appellant.

Robert H. Dudley, pro se.

Patrick J. McDonough, District Attorney, David N. Marple, Assistant District Attorney, for appellee.

Moreover, even though we previously ruled that the court-ordered limitations on Dudley’s ability to work in law enforcement, bail bonding, dog training and private investigating were improper while he was free on an appeal bond, those same limitations are not inappropriate conditions of probation. A trial judge has broad discretion in imposing conditions of probation, and in the absence of express authority to the contrary, there is no reason why any reasonable condition of probation should not be approved. The two essential purposes of probation are to rehabilitate the probationer and to protect society.

There is no express authority disallowing the trial judge’s limitations on Dudley’s law enforcement, bail bonding and dog training activities while on probation. Furthermore, because Dudley was convicted of acts which amount to an abuse of the authority he had while in the position of police chief, the court’s decision not to allow him to be involved in law enforcement and various related fields while on probation may both rehabilitate him and protect society from further abuse of power by him. The court’s sentence was neither an abuse of discretion nor cruel and unusual.

Judgment affirmed.

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

       OCGA § 17-7-52 (b).

        Gober v. State, 203 Ga. App. 5-6 (1) (416 SE2d 292) (1992); Lundy v. State, 195 Ga. App. 682, 683 (1) (394 SE2d 559) (1990).

        Dudley v. State, 230 Ga. App. 339 (496 SE2d 341) (1998).

        Lundy, supra at 682 (1).

       Id. at 683 (1).

        Gober, supra; Lundy, supra; see also Axson v. State, 174 Ga. App. 236 (1) (329 SE2d 566) (1985).

        Morrill v. State, 216 Ga. App. 468-469 (1) (454 SE2d 796) (1995).

       See OCGA § 16-5-23 (a) (2).

       See generally Morrill, supra.

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

        Ramsay v. State, 175 Ga. App. 97 (1) (332 SE2d 390) (1985).

       OCGA § 16-5-23 (b).

       OCGA § 17-10-3 (a), (b).

       See generally Gordon v. State, 257 Ga. 439, 440 (2) (360 SE2d 253) (1987).

       See Dudley, supra.

        Pitts v. State, 231 Ga. App. 9 (498 SE2d 534) (1998).

        Ballenger v. State, 210 Ga. App. 627, 629 (2) (436 SE2d 793) (1993).

       See Land v. State, 262 Ga. 898, 901 (5) (426 SE2d 370) (1993).

       See generally Toth v. State, 213 Ga. App. 247, 251-252 (8) (444 SE2d 159) (1994); Potts v. State, 207 Ga. App. 863, 866 (3) (429 SE2d 526) (1993).


author: Miller, Judge.

text:
    A99A1871.
    JARRARD et al. v. UNITED PARCEL SERVICE, INC.
    (529 SE2d 144)
   Miller, Judge.

Based on psychic injury caused by a harsh and ill-timed job evaluation, Michael Jarrard sued his employer United Parcel Service, Inc. (“UPS”) for intentional infliction of emotional distress and was joined by his wife who asserted a derivative claim for loss of consortium. UPS successfully moved for summary judgment on both claims on the ground that its conduct was not extreme and outrageous, which ruling the Jarrards appeal. The issue for this court is a question of law: whether giving a harsh performance evaluation on the day an employee returns from extended psychiatric care and continuing that interview despite the employee’s tearful entreaties for a postponement rise to the requisite level of outrageousness and egregiousness to sustain a claim for intentional infliction of emotional distress. We are constrained to hold that such conduct does not and affirm.

Construed in favor of the plaintiff, the evidence showed that on his first day back from six weeks of medical leave, Jarrard received a stinging evaluation of his job performance at UPS for the three months preceding the leave. Specifically, in a twenty-page evaluation form covering numerous topics, Jarrard received grades of two or three on a scale of zero to six, whereas his prior evaluations were primarily ranks of five or six. Jarrard disagreed with the rankings given him. The harsh evaluation was apparently in retaliation for past conflicts between Jarrard and management and would normally have taken place during the time Jarrard was out on leave.

Even though the evaluating UPS supervisor knew that the leave had been for psychiatric care, and even though during the interview Jarrard repeatedly begged in tears that the evaluation be postponed because of his mental weakness, the supervisor insisted, on penalty of termination and with a smirk, that Jarrard remain and receive the full oral review of the written evaluation, which took about 20 minutes. The supervisor questioned his loyalty and integrity. As a result of the oral review, Jarrard experienced a complete mental breakdown from which he has not recovered.

Pretermitting the issue (not raised below) whether this claim was exclusively the province of the Workers’ Compensation Act, we first address the four essential elements of an action for intentional infliction of emotional distress: “(1) The conduct must be intentional or reckless; (2) The conduct must be extreme and outrageous; (3) There must be a causal connection between the Wrongful conduct and the emotional distress; and (4) The emotional distress must be severe.”

The second element of extreme and outrageous conduct is the issue here. Biven Software v. Newman explained that derogatory comments in the employment context generally do not fall into this category:

Comments made within the context of one’s employment may be horrifying or traumatizing, but are generally considered a common vicissitude of ordinary life. Liability for intentional infliction of emotional distress has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.

Peoples v. Guthrie emphasized that the conduct “must be of such serious import as to naturally give rise to such intense feelings of humiliation, embarrassment, fright or extreme outrage as to cause severe emotional distress.” Such does not include mere insults, indignities, threats, annoyances, petty oppressions, or other vicissitudes of daily living. Plaintiffs are expected to be hardened to a certain amount of rough language and to occasional acts that are definitely inconsiderate and unkind.

“[P]erformance evaluations are a recognized aspect of any employment,” and regardless of their brutal harshness do not constitute extreme and outrageous conduct. Just as “an employer’s termination of an employee — however stressful to the employee — generally is not extreme and outrageous conduct,” so the lesser act of an employer’s giving a poor job evaluation — however stressful to the employee — must be held to be an expected, common business event that does not constitute extreme and outrageous conduct. “Sharp or sloppy business practices, even if in breach of contract, are not generally considered as going beyond all reasonable bounds of decency as to be utterly intolerable in a civilized community.”

The law is clear that performance evaluations critical of an employee do not fall into the outrageous category even though (i) given in crude and obscene language, (ii) done with a smirk, (iii) conducted in a belittling, rude, and condescending manner to embarrass and humiliate the employee, (iv) given at a poor time, (v) tinged with the intent to retaliate for former conflicts, and (vi) constituting a false accusation of dishonesty or lack of integrity.

The Jarrards focus much of their argument on evidence of malicious motives of UPS to retaliate for former conflicts between Jarrard and UPS management about demotions, transfers, and following through on company promises. This pertains, however, to the first element of the tort (acting intentionally or recklessly) and does not address the second element of whether the conduct was itself extreme and outrageous. Citing the Restatement (Second) of Torts, § 46, Bowers v. Estep explained:

It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by malice, or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been [extreme and outrageous].

The Jarrards quite correctly point out that in determining whether conduct is extreme and outrageous a court should also consider (i) the existence of a relationship in which one person has control over another such as an employer-employee relationship and (ii) whether the defendant knew of the victim’s particular susceptibility to emotional distress. Such factors may produce a character of outrageousness that otherwise might not exist.

Nevertheless, there is a caveat to these factors: “[i]t must be emphasized that major outrage in the language or conduct complained of is essential to the tort.” Accordingly, the conduct must inherently have an element of outrageousness or extreme wrongfulness. Based on this reasoning, we have repeatedly upheld summary adjudications in favor of the defendant where the conduct had no such element, even though the defendant — who had a controlling relationship over the plaintiff — was aware of the plaintiff’s delicate mental condition at the time of the incident.

The cases cited by the Jarrards are distinguishable. There is something innately outrageous with telling an employee to not testify against the company or she will lose her job and then enforcing that very threat. There is something inherently outrageous with repeatedly subjecting an employee to sexually harassing comments and behavior over a lengthy period of time, when she constantly objects to such. The same is true of repeatedly abusing and threatening an employee over a lengthy period of time and to then end that relationship with yet more threats and intimidation. And there is something innately outrageous with a pharmacist knowingly making false accusations of drug fraud against an emotionally fragile customer and having her wrongfully arrested at the pharmacy.

On the other hand, there is nothing inherently outrageous with subjecting an employee to a straightforward if harsh evaluation of his job performance, regardless of its timing. Forthright evaluations are to be expected, indeed encouraged. Perhaps it is Christmas, and a firing or poor job evaluation would devastate the employee who may be known to be experiencing holiday depression. Such may be poorly timed; it may be tactless and insensitive; it may be rude, inconsiderate, and unkind. But a negative performance review is not innately wrong or outrageous and is certainly less negative than an outright termination, which is not outrageous conduct under Georgia law. Georgia recognizes negative evaluations as one of the common vicissitudes of ordinary life.

Based on these cases, a single brutal evaluation cannot rise to the “outrageous” level even though the employee is experiencing emotional problems at the time of the evaluation and the employer is aware of such. Every employee is expected to appreciate that poor job evaluations are possible and could jeopardize promotions and continued employment. Moreover, when, as here, the employee returns to the job with a medical evaluation that sets forth no restrictions and that states he is medically stable, then the employer (who has no medical degree) cannot be expected to exempt that employee from the same rigors of job evaluations that all other employees experience.

Decided January 25, 2000

Orr & Orr, E. Wycliffe Orr, Kristine E. Orr, for appellants.

Arnold & Anderson, John G. Skinner, for appellee.

Despite the severity of Jarrard’s damages, we are constrained to hold that the trial court correctly granted summary judgment in favor of UPS.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.

       Jarrard also asserted a count under the Anericans with Disabilities Act, 42 USC § 12101 et seq., but he has not appealed the entry of summary judgment on this count.

       See Yarbray v. Southern Bell Tel. &c. Co., 261 Ga. 703, 706 (2) (409 SE2d 835) (1991); United Parcel Suc. v. Moore, 238 Ga. App. 376, 377 (519 SE2d 15) (1999).

       Jarrard’s treating psychiatrist certified him to return to work as “medically stable” with no restrictions.

       Rating guidelines defined each ranking: zero — must improve before next evaluation; one — needs a lot of improvement; two — needs some improvement; three — meets nearly all expectations; four — meets all expectations; five — meets all expectations, exceeds most; six — exceeds all expectations.

       Cf. Hennly v. Richardson, 264 Ga. 355-356 (1) (444 SE2d 317) (1994).

       (Citations and punctuation omitted.) Moore, supra, 238 Ga. App. at 377; see Bridges v. Winn-Dixie Atlanta, 176 Ga. App. 227, 230 (1) (335 SE2d 445) (1985).

       222 Ga. App. 112, 113-114 (1) (473 SE2d 527) (1996).

       (Citations and punctuation omitted.) Id. See Moore, supra, 238 Ga. App. at 377.

       199 Ga. App. 119, 121 (2) (404 SE2d 442) (1991).

       (Citations and punctuation omitted; emphasis in original.) Id. See Moses v. Prudential Ins. Co. &c., 187 Ga. App. 222, 225 (369 SE2d 541) (1988).

        Moore, supra, 238 Ga. App. at 377.

        Peoples, supra, 199 Ga. App. at 121 (2).

        Wiggins v. Browning, Civil Action No. 6:94-1552-3AK, 1994 U. S. Dist. LEXIS 20229, slip op. at 14 (D. S.C. 1994).

        Clark v. Coats & Clark, Inc., 990 F2d 1217, 1229 (11th Cir. 1993); see ITT Rayonier, Inc. v. McLaney, 204 Ga. App. 762, 764 (1) (420 SE2d 610) (1992) (“at-will employment can be terminated for any or no reason [and thus] gives rise to no claim for the intentional infliction of emotional distress”) (citations and punctuation omitted); Borden v. Johnson, 196 Ga. App. 288, 290-291 (2) (395 SE2d 628) (1990).

       (Citations omitted.) Moore, supra, 238 Ga. App. at 378.

        ITT Rayonier, supra, 204 Ga. App. at 763 (1), 765 (2) (crude, obscene, and profane language); see Cooler v. Baker, 204 Ga. App. 787, 788 (1) (420 SE2d 649) (1992) (alleged foul and abusive language); Bridges, supra, 176 Ga. App. at 231 (1) (could have been more tactful).

       See Douglas v. Dabney S. Lancaster &c. College, 990 FSupp. 447, 465 (D) (3) (W.D. Va. 1997).

        Biven Software, supra, 222 Ga. App. at 114 (1); Johnson v. Savannah College of Art &c., 218 Ga. App. 66, 67 (460 SE2d 308) (1995) (employee was betrayed, belittled, maligned, humiliated, and saddened); Bowers v. Estep, 204 Ga. App. 615, 618 (2) (420 SE2d 336) (1992) (employer threatened and intimidated employee about his emotional condition in a manner that embarrassed and humiliated him).

       See Clark v. City of Zebulon, 156 FRD 684, 698 (3) (a) (N.D. Ga. 1993) (terminated just before Christmas).

        Sossenko v. Michelin Tire Corp., 172 Ga. App. 771 (324 SE2d 593) (1984) (retaliation for reporting manufacturing defects); see Odem v. Pace Academy, 235 Ga. App. 648, 655 (2) (510 SE2d 326) (1998); cf. Biven Software, supra, 222 Ga. App. at 114 (1) (supervisor acted out of jealousy).

        Peoples, supra, 199 Ga. App. at 121 (2); see ITT Rayonier, supra, 204 Ga. App. at 763 (1); cf. Mundy v. Southern Bell Tel. &c. Co., 676 F2d 503, 504 (11th Cir. 1982) (inaccurate and unsupported negative evaluation); Avallone v. Wilmington Med. Center, 553 FSupp. 931, 938 (V) (D. Del. 1982) (false negative job evaluation).

       (Citations and punctuation omitted.) Bowers, supra, 204 Ga. App. at 618 (2); see Odem, supra, 235 Ga. App. at 654-655 (2); cf. Peoples, supra, 199 Ga. App. at 121 (2) (it is not enough that defendant’s conduct was wilful and wanton); Moses, supra, 187 Ga. App. at 225 (it is not enough that defendant’s conduct is intentional or that it is wilful and wanton).

       See Bridges, supra, 176 Ga. App. at 230 (1).

       Id.

       (Citation and punctuation omitted.) Id. See Gordon v. Frost, 193 Ga. App. 517, 522 (1) (388 SE2d 362) (1989).

        See Harris v. Leader, 231 Ga. App. 709, 712 (1) (b) (499 SE2d 374) (1998) (psychiatrist who expresses personal sexual fantasies to client not liable despite his knowledge of her susceptibility to emotional distress); Bowers, supra, 204 Ga. App. at 616, 618 (even though employer knew of employee’s depression and severe claustrophobia and intentionally harassed and belittled him until he broke down and was admitted to a psychiatric clinic, no liability for intentional infliction of mental distress); Bridges, supra, 176 Ga. App. at 231 (1) (even though employer knew of employee’s low emotional threshold brought on by her multiple sclerosis, no liability for insensitive and tactless demands for polygraph and for termination based on her refusal to cooperate).

       See Yarbray, supra, 261 Ga. at 706 (2).

       See Trimble v. Circuit City Stores, 220 Ga. App. 498, 499 (469 SE2d 776) (1996); Coleman v. Housing Auth. of Americus, 191 Ga. App. 166, 168-169 (1) (381 SE2d 303) (1989).

        Anderson v. Chatham, 190 Ga. App. 559, 566-567 (8). (379 SE2d 793) (1989).

       See Gordon, supra, 193 Ga. App. at 519-520 (1).

       See generally Lively v. McDaniel, 240 Ga. App. 132, 134 (2) (522 SE2d 711) (1999) (“Defamatory or derogatory remarks regarding one’s employment generally do not rise to this level.”) (citations omitted); Hendrix v. Phillips, 207 Ga. App. 394, 396 (1) (428 SE2d 91) (1993); Sossenko, supra, 172 Ga. App. at 772.

       See City of Zebulon, supra, 156 FRD at 698 (3) (a).

       But is there ever a good time for an employee to undergo an unfavorable performance review?

       See Bridges, supra, 176 Ga. App. at 231 (1) (employer could have been more tactful and sensitive).

       See Peoples, supra, 199 Ga. App. at 121 (2).

       See ITT Rayonier, supra, 204 Ga. App. at 764 (1).

       See Peoples, supra, 199 Ga. App. at 121 (2).

       Accord Bowers, supra, 204 Ga. App. at 618 (depression); Bridges, supra, 176 Ga. App. at 231 (1) (lower emotional threshold caused by multiple sclerosis); cf. Bute v. Schuller Intl., 998 FSupp. 1473, 1478 (II) (C) (N.D. Ga. 1998) (refusal to allow employee to return to work following back surgery is not egregious or outrageous).


author: Smith, Judge.

text:
    A99A1964.
    NELSON v. THE STATE.
    (528 SE2d 844)
   Smith, Judge.

Robert Edward Nelson was convicted of two counts of armed robbery and two counts of possession of a firearm during the commission of a felony. Following the denial of his motion for new trial, Nelson filed this appeal, enumerating 11 errors, most of which concern the trial court’s evidentiary rulings. Having determined that no reversible error occurred, we affirm.

The underlying case arose after two “very loud, very boisterous” masked men entered Candler Federal Credit Union. After forcing all the customers to lie on the floor, they robbed the bank at gunpoint. They were agitated and insistent, and one emphatically brandished a pistol. One robber, later identified as Nelson, confronted the lead teller, placed a mesh bag in front of her, then demanded money. Due to that teller’s extremely close contact with Nelson, she was able to discern his facial features through the stocking mask and later identified him. The second man pointed a gun directly at the teller’s face and ordered her to “[b]ack up, b — h.” After the lead teller complied, this same assailant demanded money from another teller.

Unlike these two witnesses, a third bank employee observed the perpetrators before they donned their masks. This eyewitness saw the two robbers on three separate occasions: when she walked outside to her car just before the robbery, then again after she reentered the credit union, and, finally, on the screen of a monitor as security cameras captured the armed robbery in progress. After selecting Nelson’s photograph from a photo array, she felt “very sure” about her choice. Similarly, at trial, she was “definite” that Nelson was one of the two men who had walked past her in the parking lot just moments before the robbery.

Meanwhile, an employee of a nearby business became suspicious that a robbery was underway after noticing a driver remain inside a vehicle with the engine running while two other men “started walking real fast” toward the credit union. This alert bystander jotted down a description of the getaway vehicle and its tag number just as the men raced out of the bank and “jumped in the car and sped off.” A cap initialed inside with “QED” was discovered at the crime scene near a trail of scattered, dye-colored money. Nelson’s stepdaughter, whose initials are Q. E. D., identified this cap as her “skully.”

1. Nelson contends the trial court erred in denying his motion for a directed verdict. We disagree. The State offered both direct and circumstantial evidence to prove Nelson’s guilt. Two witnesses positively identified Nelson as one of the robbers, the getaway car belonged to a friend’s wife, similar transaction evidence indicated that Nelson had committed another robbery in a similar manner, and Nelson’s futile attempt to hide from investigators inside a closet pointed to his guilt. Although Nelson focuses on inconsistencies in the witnesses’ identification, the jury apparently resolved any conflicts adversely to him. Byrd v. State, 236 Ga. App. 485, 486 (1) (512 SE2d 372) (1999). Construed in a light most favorable to the verdict, the evidence was sufficient to authorize a jury to find Nelson guilty of armed robbery beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Byrd, supra at 486 (1); McGuire v. State, 204 Ga. App. 151, 152 (418 SE2d 464) (1992).

2. Nelson’s claim that the two counts of armed robbery should have been merged is without merit. Nelson’s robberies of the two individual bank tellers at the same site constituted two separate crimes and did not merge in fact or law. Byrd, supra at 489 (9); State v. Smith, 193 Ga. App. 831, 832 (1) (389 SE2d 547) (1989).

3. Nelson asserts that the trial court erred by permitting the State to introduce similar transaction evidence that impermissibly placed his character in evidence. When a probative connection is shown between the similar transaction and the charged offense and the evidence has been found admissible, the trial court has implicitly determined that the probative value of such evidence outweighs its prejudicial impact. Sheppard v. State, 267 Ga. 276, 280 (4) (476 SE2d 760) (1996).

The State offered as a similar transaction a robbery by force, a prior crime admittedly committed by Nelson. This evidence was offered to prove identity, bent of mind, and course of conduct. The victim recounted the details of the robbery, and the lead investigator, who captured Nelson after a car chase, disclosed incriminating admissions made by Nelson about that robbery. No error has been shown to have occurred in the admission of this evidence. See Farley v. State, 265 Ga. 622, 626 (2) (458 SE2d 643) (1995).

4. Nelson claims that because the similar transaction took place more than 11 years before the credit union robbery, it was too remote in time and should not have been allowed in evidence. When similar transaction evidence is otherwise admissible, the elapse of 11 years and 19 years has not demanded exclusion of such evidence. Rich v. State, 254 Ga. 11, 14 (1) (325 SE2d 761) (1985); Cooper v. State, 173 Ga. App. 254, 255 (325 SE2d 877) (1985); see Gilstrap v. State, 261 Ga. 798, 799 (1) (b) (410 SE2d 423) (1991). Here, although 11 years separated Nelson’s earlier robbery from the credit union armed robbery, part of that time Nelson was unavailable to participate in other robberies due to his imprisonment. See Moore v. State, 207 Ga. App. 412, 416 (1) (b) (427 SE2d 779) (1993). It is, moreover, the similarity of the offenses within the meaning of Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991) that determines the admissibility of such evidence, not whether the span of time between offenses is brief. Davis v. State, 226 Ga. App. 83, 86 (3) (485 SE2d 508) (1997); see Gilstrap, supra.

5. Nelson asserts that the State’s Exhibit 29, a certified copy of his prior conviction for robbery by force, should not have been admitted into evidence. He further claims that this exhibit should have been redacted.

A certified copy of a piior conviction may be used to supplement and in conjunction with testimonial evidence corroborating a similar transaction. Hudson v. State, 271 Ga. 477, 479 (2) (521 SE2d 810) (1999); Burgess v. State, 264 Ga. 777, 784 (18) (450 SE2d 680) (1994). Before admitting the exhibit at issue, the trial court instructed the State to redact it. The record confirms that the court’s directive was followed, and only the redacted version, Exhibit 29A, went out to the jury. No error occurred.

6. In two assertions of error, Nelson claims that the trial court erred by allowing the State to introduce, over his objection, the testimony of his stepdaughter, a minor. Before she testified, Nelson objected on two grounds: “her tender age” and that she had been questioned by the Federal Bureau of Investigation without parental consent and without a parent present in violation of parental rights.

Whether a child witness is competent to testify within the meaning of OCGA § 24-9-7 is a matter which lies within the trial court’s sound discretion. Wood v. State, 195 Ga. App. 424, 425 (393 SE2d 720) (1990). No evidence showed that this ten-year-old witness lacked the use of reason or could not comprehend the nature of an oath. See Norton v. State, 263 Ga. 448, 449-450 (3) (435 SE2d 30) (1993); see OCGA § 24-9-5 (b). On the contrary, this witness testified that she knew the difference between a lie and the truth. She confirmed that she had told the truth to the jury and to the FBI. She identified the hat found at the crime scene as her “skully,” confirming that it belonged to her and had her initials inscribed inside. The trial court did not abuse its discretion in permitting her to testify. Wood, supra. Nelson cites no authority, and we know of none, that would preclude the questioning of a minor without parental consent when the minor is not suspected of having committed a crime and is not in custody but is merely being queried about the ownership of a particular item. Compare, e.g., Smith v. State, 263 Ga. 363, 364 (2) (434 SE2d 465) (1993) (discussion of waiver of rights by juvenile offender).

7. Nelson contends that his trial counsel was ineffective for failing to file a motion in limine to exclude the testimony of his stepdaughter.

Trial strategy and tactics do not equate with ineffective assistance of counsel. Phillips v. State, 233 Ga. App. 557, 559 (504 SE2d 762) (1998). The decision as to which trial motions to file is a matter within the exclusive province of counsel after consultation with his client. Austin v. Carter, 248 Ga. 775, 779 (2) (c) (285 SE2d 542) (1982). Here, Nelson failed to show a reasonable probability that had this motion been filed before trial, the results of this trial would have been different. See Brewer v. State, 224 Ga. App. 656, 657-658 (2) (481 SE2d 608) (1997) (failure to satisfy either prong of the Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984) standard is fatal to an ineffectiveness claim).

8. Nelson contends that his trial counsel was ineffective for failing to list his wife as an alibi witness.

A decision not to pursue an alibi defense is a part of trial strategy and therefore is a matter with which this court will generally not interfere. Polk v. State, 225 Ga. App. 257, 259 (1) (c) (483 SE2d 687) (1997); accord Phillips, supra. At the motion for new trial hearing, Nelson’s trial counsel testified that Nelson’s wife failed to tell the FBI interviewer about any alibi and seemed hesitant to testify. Counsel explained that he elected not to call Nelson’s wife as an alibi witness because he did not want to “put a reluctant witness up here to possibly perjure themself [sic].” Nelson has not overcome the presumption that his trial counsel’s decision not to call this person as a witness was a reasonable exercise of professional judgment. Melton v. State, 222 Ga. App. 555, 557 (1) (474 SE2d 640) (1996).

Decided January 25, 2000.

Orin L. Alexis, for appellant.

Spencer Lawton, Jr., District Attorney, Ann M. Elmore, Assistant District Attorney, for appellee.

9. Nelson contends that the State violated his due process rights by using a photographic spread that was unduly suggestive and gave rise to a substantial likelihood of misidentification. See McCoy v. State, 237 Ga. 62, 63 (226 SE2d 594) (1976). But having reviewed the photographic array, we cannot say that this array was impermissibly suggestive. Selbo v. State, 186 Ga. App. 779, 781 (368 SE2d 548) (1988); see Widner v. State, 203 Ga. App. 823, 824 (1) (418 SE2d 105) (1992) (unless array is impermissibly suggestive, the likelihood of irreparable misidentification need not be decided). Moreover, at least one witness’s identification had an origin independent of the photographic array. Arnold v. State, 198 Ga. App. 449 (402 SE2d 69) (1991). In any event, the State presented other corroborating evidence that also pointed to Nelson’s guilt. See Belcher v. State, 159 Ga. App. 146, 147 (1) (282 SE2d 760) (1981).

10. Finally, Nelson contends that the trial court erred in sentencing him to a life term as a recidivist during the pendency of an appeal of one of his prior convictions. The sentencing transcript belies this assertion. After Nelson objected to the inclusion of a shoplifting conviction that was then being appealed, the trial court refused to consider it, and the State offered a burglary conviction in its place.

Judgment affirmed.

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

       Nelson’s co-defendant, Roosevelt Byrd, Jr., was acquitted of the credit union heist but was convicted of other armed robberies. Byrd v. State, 236 Ga. App. 485, 486 (3) (512 SE2d 372) (1999).


author: Miller, Judge. Smith, Judge,

text:
    A99A2110.
    WOODSON v. THE STATE.
    (530 SE2d 2)
   Miller, Judge.

A jury found Willie Woodson guilty of burglary, battery, kidnapping, aggravated assault with the intent to rape, and aggravated assault with a deadly weapon. After considering Woodson’s five prior out-of-state felony convictions, the court imposed maximum consecutive sentences for the current felony convictions and twelve more months for the battery conviction.

Woodson appeals, contending that the trial court erred by failing to grant his motion for directed verdict of acquittal, failing to define fully the rape charge by omitting the portion dealing with consent, failing to merge his aggravated assault with a deadly weapon conviction into his aggravated assault with the intent to rape conviction, and failing to determine whether the underlying facts and circumstances of the out-of-state convictions would have constituted felonies under Georgia law. We affirm the convictions, vacate the felony sentences, and remand this case for resentencing.

1. Woodson challenges the trial court’s denial of his motion for a directed verdict of acquittal. The standard for reviewing a denial of a motion for a directed verdict of acquittal is whether, under the rule of Jackson v. Virginia, the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offenses. On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

Construed to uphold the jury’s verdict, the evidence reveals that on the evening of March 17, 1998, Woodson approached the victim as she sat on her porch. She noticed Woodson’s scar under his right eye and his black suede shoes. Woodson wrote a note to the victim, who is hearing impaired, requesting cigarettes and permission to perform oral sex upon her. The victim responded no, and Woodson left. But that evening at approximately 9:00 p.m. Woodson returned to the victim’s residence and knocked heavily on a door that had no peephole. The victim felt the vibrations from Woodson’s pounding and opened the door. Woodson was wearing a black stocking-type mask that covered all his face except his eyes. The victim again noticed Woodson’s scar and the same black shoes.

Woodson pointed a knife at the victim, forced himself inside, and locked the door. He pursued the victim through the kitchen, the living room, the bathroom, then into a bedroom, where he slapped the left side of her face and shoved and pulled her to the floor. Woodson placed the knife nearby on the floor as he used one hand to hold the victim to the floor against her will and his other hand to remove the victim’s shorts. When the victim attempted to gain control of the knife, Woodson forced her to release it by biting her right hand. Picking up the knife, he forced sexual intercourse upon her over her objections. Immediately afterwards, Woodson fled the scene, and the victim ran next door for help.

Responding police officers and detectives found the victim crying, hysterical, and trembling with fright. The emergency medical technician testified that the victim, who had accelerated respirations and heartbeats, also suffered from traumatic injuries, including pain and swelling on the left side of her face and bleeding bite marks on her right hand. While the technician was treating the victim in the back of the ambulance parked outside the victim’s residence, Wood-son walked by. The victim immediately recognized Woodson from his facial scar, his build, and his shoes. She began frantically pointing at Woodson while repeatedly mouthing “that’s him . . . that’s him!” Police officers apprehended Woodson.

The investigator collected a sticky thick fluid from the bedroom floor where the sexual intercourse occurred. He also recovered from the victim’s parking area a black stocking-type mask and removed hair samples from it. The State’s hair and fiber analysis expert examined the hair samples and concluded that they matched hair samples combed from Woodson’s head. At trial, the victim again identified Woodson as the perpetrator.

An appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia. The evidence was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Woodson was guilty of burglary, battery, aggravated assault with intent to rape, and aggravated assault with a deadly weapon. Because Woodson shoved and pulled the victim to the floor and struggled with her, the evidence also supported the kidnapping conviction.

2. Woodson’s argument that the court erroneously refused to fully define the rape charge by omitting the portion dealing with consent is without merit. A trial judge does not err in refusing to give a requested charge that, among other things, is not adequately adjusted to the case or authorized by the evidence. After reviewing the proposed jury charge, the trial court concluded that the charge was not adjusted to the evidence and declined to give it. The victim denied consenting to the sexual intercourse, and Woodson points to no evidence to the contrary. Moreover, Woodson was acquitted of rape. The trial court did not err.

3. Woodson contends that the trial court erred by imposing separate sentences for aggravated assault with a deadly weapon and aggravated assault with the intent to rape, since the two offenses merge as a matter of fact. We disagree. There was evidence of assaults, as Woodson wielded the knife, that were gratuitous and unconnected with the assault with the intent to rape the victim. Therefore, it was not error to sentence Woodson separately on the jury’s findings of guilt for the aggravated assaults.

4. During the sentencing hearing, the State introduced certified copies of Woodson’s five prior Alabama felony convictions, consisting of (1) a 1982 burglary conviction, (2) a 1984 burglary conviction, (3) a 1984 escape conviction, (4) a 1984 receiving stolen property conviction, and (5) a 1992 burglary conviction. Under the recidivist statute, the trial court imposed maximum sentences for Woodson’s felony convictions. Woodson urges that the statute required the trial court to determine whether the underlying facts and circumstances of the Alabama convictions would have constituted felonies in the State of Georgia. We agree.

The statute imposes maximum sentences for any person convicted of a felony who was previously “convicted under the laws of any other state . . . of a crime which if committed within this state would be a felony. . . .” Where the person has been convicted of three such felonies, the statute mandates that he must serve those sentences without possibility of parole.* The State bears the burden of showing that the foreign convictions were “for conduct which would be considered felonious under the laws of this state. . . .” Failure to properly prove the prior convictions requires remand and resentencing. Because the trial court considered the Alabama convictions without evidence that the convictions were for conduct that would have constituted felonies in the State of Georgia, Woodson’s felony sentences must be vacated and the case remanded to the trial court for resentencing.

Judgment of conviction and misdemeanor sentence affirmed. Felony sentences vacated and case remanded for resentencing.

Pope, P. J., concurs. Smith, J., concurs specially.

Smith, Judge,

concurring specially.

I concur in the result reached by the majority, and I agree that the conviction must be affirmed and that the case must be remanded for resentencing. I write specially to add my thoughts on the reasons for the remand. As the majority points out, the State bears the burden of showing that foreign convictions used for purposes of recidivist sentencing were the result of conduct that would be a felony in Georgia. Georgia does not have degrees of burglary; every burglary in Georgia is a felony. But all unlawful entries upon the property of another do not necessarily constitute burglaries in this state. The facts and circumstances of an entry could result in the offender being charged with a misdemeanor, such as criminal trespass, which requires only an unlawful purpose rather than the intent to commit a felony. Because theft by receiving and escape could both be misdemeanors in Georgia, and two of the three Alabama burglaries were not for first degree burglary, but for third degree burglary, the State did not carry its burden of proving felonious conduct, and I agree with the majority that a remand is necessary in this case.

Decided January 25, 2000

Stephen T. Smith, for appellant.

Robert E. Keller, District Attorney, Bonnie K. Smith, Assistant District Attorney, for appellee.

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Redd v. State, 232 Ga. App. 666 (1) (502 SE2d 467) (1998).

        Patterson v. State, 225 Ga. App. 515 (484 SE2d 317) (1997).

       Id.

       Supra, 443 U. S. 307; Patterson, supra, 225 Ga. App. at 515.

       See Harshaw v. State, 222 Ga. App. 385, 386 (1) (474 SE2d 226) (1996); Love v. State, 190 Ga. App. 264-265 (1) (378 SE2d 893) (1989).

        Hill v. State, 259 Ga. 557, 558 (3) (b) (385 SE2d 404) (1989) (a request to charge the jury must be legal, apt and precisely adjusted to some principle involved in the case and be authorized by the evidence).

       See Taylor v. State, 202 Ga. App. 671, 672 (415 SE2d 483) (1992); Sylvester v. State, 168 Ga. App. 718 (2) (310 SE2d 284) (1983); Coaxum v. State, 146 Ga. App. 370, 371 (3) (246 SE2d 403) (1978).

       OCGA § 17-10-7 (c).

       OCGA § 17-10-7 (a).

       OCGA § 17-10-7 (c).

        Wallace v. State, 175 Ga. App. 685, 687 (6) (333 SE2d 874) (1985).

        Williams v. State, 235 Ga. App. 876, 877 (510 SE2d 848) (1999); see Wallace, supra, 175 Ga. App. at 687 (6); Miller v. State, 231 Ga. App. 869, 871 (2) (501 SE2d 42) (1998).


text:
    A99A2378.
    A99A2379.
    CITY OF BYRON et al. v. BETANCOURT et al. DAVIDSON et al. v. BETANCOURT et al.
    (528 SE2d 841)
   Miller, Judge.

Plaintiffs Robert D. Betancourt, Sam Dorsey, Terri Hancock, Wanda A. McDuffie, and Tim E. Miller brought this petition for declaratory judgment and injunctive relief against defendants the City of Byron, the Mayor and City Council of Byron, and the Byron Planning & Zoning Board, alleging defendants failed to follow the procedures prescribed by OCGA § 36-36-21 during the annexation of certain properties into the corporate limits of the City and further failed to follow the procedures of OCGA § 36-66-4 (a) and (b) in establishing a new zoning district within the City. Defendants admitted that on May 4, 1998, the Mayor and City Council received and approved four applications for annexation of real property into the City of Byron corporate limits and also passed an ordinance making such annexation effective immediately upon passage. The parties stipulated to the following: (1) The subject property, known as the racetrack property, is approximately two miles from the existing corporate limits of the City of Byron; (2) the application for annexation was filed with the city clerk at 4:00 p.m., May 4, 1998, just two hours before the Mayor and Council voted to approve the annexation although the application was in the hands of the city attorney sometime before filing; (3) the City of Byron currently has no zoning classification M-2; (4) neither the City nor the Planning & Zoning Board posted notice of a January 28, 1999 meeting on each public street side of the subject property, although one sign was posted at U. S. Highway 41 and the racetrack property; and (5) notices of proposed zoning changes to the racetrack property were not mailed to each owner of property abutting the subject property.

After a hearing, the superior court concluded that defendants’ “attempt to annex and (re)zone [the racetrack] property failed to comply with various procedural requirements and is therefore void.” There is no express grant of permanent injunctive relief.

Case No. A99A2378

1. Even though this case does not involve an appeal from an administrative ruling, there is considerable doubt this direct appeal is authorized, since it complains of the superior court’s order declaring void the acts of the City Council and the Planning & Zoning Board in attempting to rezone, via a newly enacted zoning classification, the recently annexed racetrack property. Appeals from decisions in zoning cases require an application to this Court for permission to pursue a discretionary appeal under OCGA § 5-6-35 (a) (l).

2. Assuming, but not deciding, a direct appeal is authorized from this final judgment voiding certain zoning actions attempted by the defendant bodies of local government, we conclude that defendants have failed to meet their burden to affirmatively show error by the record. Eight of defendants’ twelve enumerations of error complain of facts allegedly found by the superior court, while the remaining four complain of the superior court’s application of law to those facts. But the notice of appeal expressly directs that “[t]he transcript of evidence and proceedings will not be filed for inclusion in the record on appeal.”

In order for the appellate court to determine whether the judgment appealed from was erroneous, it is the duty of the appellant to include in the record those items which will enable the appellate court to perform an objective review of the evidence and proceedings. OCGA § 5-6-41 (c). Thus, where the transcript is necessary, as in the case sub judice, and appellant omits it from the record on appeal or fails to submit a statutorily authorized substitute, the appellate court must assume the judgment below was correct and affirm.

Decided January 25, 2000.

Collins & Aromatorio, Lawrence C. Collins, for appellants (case no. A99A2378).

Lovett, Cowart & Ayerbe, Linwood R. Lovett, for appellants (case no. A99A2379).

Nixon & Nixon, Jon A. Nixon, Fred I. Graham, for appellees.

The stipulated facts do not demonstrate any error in the superior court’s rulings. In the absence of a transcript, including the exhibits tendered into evidence, we must assume the judgment complained of was supported by competent evidence and are duty-bound to affirm.

Case No. A99A2379

Our affirmance in Case No. A99A2378, the main appeal, renders moot the denial of applicant Davidson’s motion to intervene in Case No. A99A2379, this cross-appeal.

Judgment affirmed in Case No. A99A2378. Appeal dismissed in Case No. A99A2379.

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

        Chordegian v. Williams, 271 Ga. 179 (518 SE2d 878) (1999); Outdoor West of Ga. v. Coweta County, 270 Ga. 527 (512 SE2d 604) (1999); Trend Dev. Corp. v. Douglas County, 259 Ga. 425 (1) (383 SE2d 123) (1989).

       See Harrell v. Little Pup Dev. &c., 269 Ga. 143 (498 SE2d 251) (1998).

        Marshall v. SDA, Inc., 234 Ga. App. 312 (1) (506 SE2d 661) (1998).

       (Citations and punctuation omitted.) Reid v. Royal Creek Apts., L.P., 239 Ga. App. 536, 537 (521 SE2d 210) (1999).

        Brown v. Frachiseur, 247 Ga. 463, 464 (277 SE2d 16) (1981).

        Kubler v. Goerg, 197 Ga. App. 667, 671 (5) (399 SE2d 229) (1990).