author: Andrews, Judge.

text:
    A99A0518, A99A0519.
    CITY OF VIDALIA v. BROWN et al.; and vice versa.
    (516 SE2d 851)
   Andrews, Judge.

Mona Lisa Brown sued the City of Vidalia alleging she was injured when she stepped in a hole located on City-owned property and fell. Brown’s husband joined in the suit by bringing a loss of consortium claim. The Browns sought to recover damages from the City under two theories alleged in their complaint: first, that the hole was a defect in a public street or sidewalk for which the City was liable in negligence under OCGA § 32-4-93, and second, that the hole was a nuisance for which the City was liable. The trial court granted summary judgment in favor of the City on the negligence claim but denied the City’s motion for summary judgment on the nuisance claim. In Case No. A99A0518, we granted the City’s application for an interlocutory appeal from the denial of summary judgment on the nuisance claim. In Case No. A99A0519, the Browns appeal from the grant of summary judgment in favor of the City on the negligence claim.

1. First, we address the Browns’ claim that the City was liable pursuant to OCGA § 32-4-93 for negligently failing to properly maintain a City street or sidewalk.

Ms. Brown testified that she stepped in a hole, fell, and was injured when she and her children were walking from house to house in a residential subdivision of Vidalia while trick-or-treating on Halloween night. The houses faced Clyde Boulevard, a paved street running down the middle of a 50-foot wide right-of-way owned by the City. The paved street was nineteen feet, four inches wide, leaving a distance of fifteen feet, four inches on both sides of the street from the edge of the pavement to the boundary line between the City right-of-way and the front yards of the houses. In addition to maintaining the paved street, the City maintained an unpaved street shoulder five feet, four inches wide immediately adjacent to the pavement on both sides of the street. The remaining ten-foot strip on both sides of the street from the outer edge of the street shoulder to the boundary line of the City right-of-way contained a drainage system for the residential subdivision and various public utility lines.

The hole at issue, which was about three feet long and one and a half feet wide, was in a grassy area about nine feet from the edge of the paved street, placing it within the above-described ten-foot wide strip constituting the outer portion of the City right-of-way. The hole was between a residential mailbox located about eight feet from the edge of the paved street and a telephone pole and a television cable box located about 15 feet from the edge of the paved street. Ms. Brown testified that she stood in front of a house watching her children obtain Halloween treats at the house. The house had a driveway which provided a safe means of access from the house to the street. When her children left the house, Ms. Brown walked parallel to the street across the driveway of the house into the grassy drainage area between the mailbox and the telephone pole and cable box and stepped into the hole. She said the area was generally illuminated by porch lights from the houses, but she did not see the hole before she stepped into it. The grass in the area had been mowed by the occupant of the house, so the hole was not obscured.

City officials denied having any actual knowledge of the hole, but the occupant of the house located in front of the hole said she notified the City about the hole 11 months prior to the date of the accident. Excluding nonprobative hearsay, there was no evidence as to who dug the hole. The public works director for the City deposed that the area in which the hole was located was not part of the City street “nor has said area ever been maintained, accepted, dedicated, or intended by the City of Vidalia for use as a municipal street or sidewalk.”

Section 32-4-93 (a) provides that:

A municipality is relieved of any and all liability resulting from or occasioned by defects in the public roads of its municipal street system when it has not been negligent in constructing or maintaining the same or when it has no actual notice thereof or when such defect has not existed for a sufficient length of time for notice thereof to be inferred.

This Code section is an exception to the general rule that a city enjoys sovereign immunity from liability for negligent acts done in the exercise of a governmental function. OCGA § 32-4-93 (a) imposes liability on a municipality, not only for the negligent failure to keep city streets free from defects, but also city sidewalks, which are deemed part of the streets. City of Atlanta v. Hampton, 139 Ga. 389, 391 (77 SE 393) (1913); Hammock v. City Council of Augusta, 83 Ga. App. 217 (63 SE2d 290) (1951). A city has the duty to use ordinary care to keep city streets and sidewalks in a reasonably safe condition for use by persons in the ordinary methods of travel. City of Marietta v. Godwin, 106 Ga. App. 113, 117 (126 SE2d 302) (1962); City of Barnesville v. Sappington, 58 Ga. App. 27, 28 (197 SE 342) (1938). Thus, a city is liable for defects in streets and sidewalks negligently caused by its own agents or employees. Id. Likewise, a city is liable for such defects caused by strangers or forces of nature, where the city had notice of the defect and failed to exercise ordinary care to remove it, or where the defect had existed for such a length of time that it would be reasonable to conclude the city should have learned of the defect and exercised ordinary care to remove it. Id.

Nevertheless, where a plaintiff alleges that the defective condition which caused injury was located on a part of the city’s street and sidewalk system, there must be some evidence that the defect was located in an area accepted by the city, either expressly or by implication, for use as a street or sidewalk, before the city can be charged with liability for negligently failing to maintain the area in a reasonably safe condition. Kesot v. City of Dalton, 94 Ga. App. 194, 198 (94 SE2d 90) (1956). Even where a sidewalk is established, a city is only required to keep in reasonably safe condition all parts thereof intended to be used by the public. City of Atlanta v. Milam, 95 Ga. 135, 137 (22 SE 43) (1894); City Council of Augusta v. Tharpe, 113 Ga. 152 (38 SE 389) (1901); Hammock, 83 Ga. App. 217. For example, the public is not generally expected to use areas on the margins of a sidewalk occupied by obstructions such as telephone poles, water-plugs, and trees. Milam, 95 Ga. at 136-137; compare Haygood v. City of Marietta, 108 Ga. App. 99, 102-103 (131 SE2d 856) (1963) (grass plot between the sidewalk and the street curb may be considered a part of the sidewalk where use of the grass plot is not forbidden or restricted).

Although there was no paved sidewalk adjacent to the street, evidence showed that pedestrians ordinarily walked along the edge of the paved street or on the unpaved street shoulder. However, the hole at issue was not located on the paved street, nor was it located on the adjacent unpaved five-foot, four-inch wide strip maintained by the City as the shoulder of the paved street. Rather, the hole was located an additional four feet outside the street shoulder (a total distance of approximately nine feet from the edge of the paved street) in the grassy drainage area which also contained public utility lines and a residential mailbox. Moreover, the hole was situated between the residential mailbox located about eight feet from the paved street and a telephone pole and cable television box located about 15 feet from the street. There was no evidence that the area where the hole was located was expressly or by implication accepted by the City as a sidewalk. Kesot, 94 Ga. App. at 196-198. In fact, the nature of the area, along with the obstructions adjacent to the hole, showed the area was not intended for use by the public as a sidewalk, and there was no evidence that the public commonly used the area for walking. Evidence that Ms. Brown and other trick-or-treaters cut across this area while canvassing houses on Halloween night did not transform the area into a sidewalk which the City was required to keep in a reasonably safe condition for pedestrians.

The record plainly and indisputably shows that the hole was not located on a City street or sidewalk. Accordingly, the trial court correctly granted summary judgment in favor of the City on the Browns’ claim that the hole was a defective condition which the City negligently allowed to exist on a street or sidewalk. Id.

2. The City also moved for summary judgment on the Browns’ claim that the hole constituted a nuisance for which the City was liable.

The Browns claimed that the existence of the hole within the boundary of the 50-foot wide City right-of-way constituted a nuisance. As discussed in Division 1, supra, the hole was not located in an area intended or accepted by the City as a street or sidewalk, and there was no evidence that the area was commonly used by pedestrians. Other than Ms. Brown’s testimony that some people walked in the area while trick-or-treating on the Halloween night at issue, there is no evidence that the area had been used for walking. Accordingly, as we concluded in Division 1, supra, the City had no duty to keep the area in which the hole was located reasonably safe as a street or sidewalk. To the contrary, the evidence showed that the hole was located about nine feet from the edge of the paved street near the middle of the ten-foot wide strip used as a drainage area which also contained public utility lines and a residential mailbox. The record further showed that the hole was dug to allow water to drain into a pipe, and that the hole and pipe were part of a City drainage system running through the area. Although there was no evidence as to who dug the hole, it was undisputed that the hole formed part of a drainage system maintained by the City. There was also evidence that the City had been informed of the existence of the hole 11 months prior to Ms. Brown’s accident. There was evidence that one other trick-ortreater stepped in the hole shortly after Ms. Brown’s accident, but there was no evidence that anyone had stepped into or otherwise been harmed by the hole prior to Ms. Brown’s accident. Thus, the issue is whether on these facts the trial court was correct in concluding that a jury issue was presented on the nuisance claim.

Regardless of whether a city is exercising a governmental function under the shield of sovereign immunity or a ministerial function, it may be held liable for damages it causes by the creation or maintenance of a nuisance. Town of Fort Oglethorpe v. Phillips, 224 Ga. 834, 837-838 (165 SE2d 141) (1968); City of Thomasville v. Shank, 263 Ga. 624 (437 SE2d 306) (1993). In order to establish the existence of a nuisance, the guidelines set forth by the Supreme Court in City of Bowman v. Gunnells, 243 Ga. 809, 811 (256 SE2d 782) (1979) require proof that: (1) the defect or degree of misfeasance rose to a level exceeding the concept of mere negligence; (2) the act was of some duration and the maintenance of the act or defect was continuous or regularly repetitious, and (3) the City failed to act within a reasonable time after knowledge of the defect or dangerous condition.

The defect or misfeasance alleged by the Browns in this case was that the City allowed the drainage hole to remain within the City right-of-way and thus failed to keep the area where the hole was located reasonably safe for Ms. Brown to walk. There was evidence to support the second and third guidelines set forth in City of Bowman in that the Browns produced evidence that the hole had been continuously in the City right-of-way as part of the City-maintained drainage system for as long as 11 months and that the City had knowledge of the hole. As to the first City of Bowman guideline, however, the evidence was insufficient as a matter of law to support the conclusion that the alleged defect or degree of misfeasance rose to a level exceeding the concept of mere negligence.

Because the evidence showed the hole was not located in the area of a City street or sidewalk, there was no basis to claim the City had a duty to remove the hole to keep the area in which it was located safe for Ms. Brown to walk across as a street or sidewalk. It follows the City was not negligent and therefore did not maintain a nuisance by failing to keep safe its streets or sidewalks. See Division 1, supra.

The only other evidence produced by the Browns in opposition to summary judgment on the nuisance claim was that the hole was located on the City right-of-way as part of a drainage system maintained by the City. Accordingly, the Browns argue that, even if the hole was not located on a City street or sidewalk, it was located on a portion of a City right-of-way which the City had a duty to keep safe for Ms. Brown to walk.

The maintenance of the drainage system was a governmental function of the City. City of East Point v. Terhune, 144 Ga. App. 865, 866 (242 SE2d 728) (1978); Foster v. Crowder, 117 Ga. App. 568 (161 SE2d 364) (1968). Accordingly, if the City had negligently constructed or undertaken to maintain the drainage system in a manner which caused repeated flooding of property, a continuing, abatable nuisance would be established. City of Rome v. Turk, 235 Ga. 223 (219 SE2d 97) (1975); Hibbs v. City of Riverdale, 267 Ga. 337, 338 (478 SE2d 121) (1996); Keller v. City of Toccoa, 137 Ga. App. 15 (223 SE2d 1) (1975). However, the Browns’ entirely different claim is that a nuisance was established because the City failed to maintain the drainage area at issue in a safe condition for her to walk across. The evidence clearly shows that the drainage area where the hole was located was not intended as an area for common use by pedestrians. The hole was located about nine feet outside of the paved street between a residential mailbox and a telephone pole and cable television box. There was no evidence that the drainage area was commonly used as a walkway, and there was no evidence that anyone else had stepped into or been harmed by the hole prior to Ms. Brown’s accident.

Decided April 29,1999

Ellis, Easterlin, Peagler, Gatewood & Skipper, George M. Peagler, Jr., Andrew & Threlkeld, Reid A. Threlkeld, for appellants.

Although the City might have anticipated that someone could walk across the drainage area, and could have made the area safer by removing or otherwise covering the hole, we cannot say under the circumstances that the failure to do so could be reasonably construed as a defect or degree of misfeasance in excess of mere negligence. Denson v. City of Atlanta, 202 Ga. App. 325, 327-328 (414 SE2d 312) (1991); Shuman v. Mayor &c. of Savannah, 180 Ga. App. 427 (349 SE2d 239) (1986); see Brooks v. Logan, 134 Ga. App. 226, 229 (213 SE2d 916) (1975) (party not liable for hole not so close to the traveled way as to constitute a peril to those lawfully using the roadway); compare Horton v. City of Macon, 144 Ga. App. 380 (241 SE2d 311) (1977). “[T]he issue of whether a condition creates a public nuisance is generally a fact question for a jury. [Cit.] However, some factual settings turn the issue into one of law.” City of Atlanta v. MARTA, 262 Ga. 743, 745 (425 SE2d 862) (1993). Without addressing whether the City was negligent, we conclude there was no evidence of a defect or degree of misfeasance in excess of mere negligence sufficient to establish a nuisance. City of Bowman, 243 Ga. at 811. Accordingly, the trial court erred by denying the City’s motion for summary judgment on the nuisance claim.

Judgment affirmed in Case No. A99A0519. Judgment reversed in Case No. A99A0518.

McMurray, P. J., and Ruffin, J., concur in the judgment only.

Callaway, Neville & Brinson, William E. Callaway, Jr., Barbara J. Nelson, for appellees.


source: Caselaw Access Project

author: Judge Harold R. Banke.

license: Public Domain

text:
    A99A0592.
    COOPER v. THE STATE.
    (517 SE2d 85)
   Judge Harold R. Banke.

Found in a house fall of illegal drugs and related paraphernalia, Keith Cooper was convicted of cocaine trafficking and possessing marijuana with intent to distribute. He claims his convictions cannot stand for three reasons: (i) the suspected cocaine found in the kitchen was not tested; (ii) no evidence linked Cooper to the cocaine found in the pocket of a jacket hanging in co-indictee Hurt’s closet or to the marijuana found in the bedroom of co-indictee Braswell; and (iii) constructive possession of contraband cannot rest upon mere proximity to the contraband.

After observing activities consistent with illegal drug sales at a house, an undercover officer on November 12, 1997 approached and witnessed a sale of apparent marijuana to the two persons in line ahead of him. He observed various men in the kitchen cutting up and packaging suspected cocaine from a pile on a table. He purchased some of the suspected cocaine from the men and it field tested positive for cocaine. He later identified the man who handed him the cocaine as Cooper.

Police obtained a search warrant and on November 14 found cocaine, marijuana, scales, razor blades, plastic baggies, packing tape; currency, walkie-talkies, and an arsenal of guns and ammunition in plain view throughout the residence. The primary stash of marijuana was found in the bedroom of Braswell and large amounts of suspected cocaine were found on the kitchen table and in the pocket of a coat hanging in Hurt’s bedroom closet. The crime lab tested and confirmed the substances found in the coat pocket and in the bedroom as cocaine and marijuana respectively, but did not test the suspected cocaine found in the kitchen.

During the search, police found Cooper, Braswell, Hurt, and five others in the residence. Cooper and another were hiding in the closet of the hallway bathroom, where police found numerous small bags of cocaine in a larger bag also containing a prescription bottle with Cooper’s name on it. All eight were arrested and charged with cocaine trafficking and marijuana selling. Held'.

1. Citing Johnson v. State, 205 Ga. App. 760 (423 SE2d 702) (1992), Cooper contends his conviction for cocaine trafficking cannot stand due to the State’s failure to test the suspected cocaine found in the kitchen. He points to the crime lab technician’s testimony that the untested substances looked a little different and thus she could not confirm they were cocaine.

The crime lab did confirm the substance found in the coat pocket as weighing 149 grams and as containing 73 percent cocaine. The bags of cocaine found in the bathroom also tested positive and cumulatively weighed one gram. Braswell testified that Hurt headed the cocaine trafficking operation and that Cooper actively participated by cutting, packaging, and selling cocaine. The undercover officer purchased cocaine from Cooper at the residence only two days earlier. Regardless of whether the substances found in the kitchen on the search warrant date were confirmed as cocaine, Cooper’s aiding and abetting Hurt’s trafficking operation at the house linked Cooper to the cache of 149 grams of cocaine found in Hurt’s bedroom. See OCGA § 16-2-20; Green v. State, 187 Ga. App. 373, 374-375 (2) (370 SE2d 348) (1988). His pill bottle linked him to the 19 small bags of cocaine found in the bathroom. This evidence supported the cocaine trafficking conviction of Cooper.

2. Cooper claims the convictions cannot stand because mere spatial proximity alone is insufficient to prove possession of contraband. See Diggs v. State, 234 Ga. App. 335, 336 (506 SE2d 683) (1998) (“[i]t is elementary that mere spatial proximity to contraband, without more, will not support a finding of constructive possession”).

Nineteen small bags of cocaine in a container with Cooper’s pill bottle were found in the same bathroom as Cooper, and cocaine and marijuana were found throughout the house where Cooper was found. True, mere presence in the vicinity of contraband alone does not establish constructive possession. But possession may be joint or exclusive. Lowe v. State, 223 Ga. App. 172, 173 (477 SE2d 341) (1996). Proving joint constructive possession requires only a showing the defendant had the power and intent to exercise control over the contraband. Moody v. State, 232 Ga. App. 499, 501-502 (1) (502 SE2d 323) (1998). At least four items of evidence establish this: (a) the presence of large amounts of drugs, guns, and drug selling paraphernalia in plain view; (b) Cooper’s pill bottle in the same bag as 19 packages of cocaine; (c) testimony that no one was allowed in the house who was not part of the drug selling operation; and (d) Cooper’s attempt to hide from police. See id.

Moreover, while mere presence in a house full of drugs is alone insufficient to convict an accused of being a party to trafficking, “the testimony of an accomplice tending to connect the accused to the crime will support a jury’s verdict if supported by slight evidence, which may be circumstantial. [Cits.]” Leonard v. State, 228 Ga. App. 792, 797 (3) (492 SE2d 747) (1997); see OCGA § 24-4-8 (accomplice testimony must be supported by some other evidence). Braswell’s and the undercover officer’s testimony, supported by the circumstantial evidence cited above, linked Cooper directly to the cocaine operation. The officer also testified that Cooper sold marijuana obtained from Braswell’s bedroom. The evidence supported both convictions. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided April 29,1999.

Vincent C. Crawford, Maurice G. Kenner, for appellant.

J. Tom Morgan, District Attorney, Jeanne M. Canavan, Maria Murder-Ashley, Assistant District Attorneys, for appellee.

Citing the “equal access” doctrine (Griggs v. State, 198 Ga. App. 522, 523 (402 SE2d 118) (1991)), Cooper argues that because he and the other defendants had equal access to the drugs, the jury could not convict him of having exclusive possession of the drugs. But exclusive possession was not required for a conviction; joint constructive possession sufficed. Rather than disproving the crime, equal access to the drugs proved joint constructive possession of the contraband. Lowe, supra, 223 Ga. App. at 173 (affirming trafficking conviction); Love v. State, 227 Ga. App. 772, 773 (490 SE2d 527) (1997) (affirming possession conviction).

Judgment affirmed.

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


text:
    A99A0664.
    TRUSTY v. THE STATE.
    (517 SE2d 91)
   Judge Harold R. Banke.

Convicted of rape and of enticing a child for indecent purposes, Curtis Trusty appeals on two grounds: insufficient evidence of penetration and the court’s refusal to allow him to cross-examine a witness on prior false accusations of molestation by the child victim. Held:

1. OCGA § 16-6-1 (a) provides: “A person commits the offense of rape when he has carnal knowledge of a female forcibly and against her will. Carnal knowledge in rape occurs when there is any penetration of the female sex organ by the male sex organ.” “In a rape case, penetration may be proved by indirect or circumstantial evidence.” (Citations omitted.) Payne v. State, 231 Ga. 755 (1) (204 SE2d 128) (1974); see Ortiz v. State, 222 Ga. App. 432 (1) (474 SE2d 300) (1996).

Viewed in the light most favorable to the prosecution, the evidence was sufficient for a rational trier of fact to have found penetration beyond a reasonable doubt. The victim’s thirteen-year-old brother, who was an eyewitness to the incident and who himself had had vaginal intercourse with the eight-year-old victim, testified that Trusty was “[h]aving sex” with the victim, which phrase meant penetration by his own definition. See Fields v. State, 216 Ga. App. 184, 187 (2) (453 SE2d 794) (1995) (testimony that he “ ‘forced me to have sex with him’ ” is evidence of penetration). He further testified that he and Trusty “did the same thing” to his sister, and that during the incident Trusty engaged in physical motions indicative of vaginal intercourse. See Gido v. State, 216 Ga. App. 330, 331 (1) (454 SE2d 201) (1995).

The victim herself testified that Trusty did the same thing to her that her brother had done, which she explained (based on her having viewed a human reproduction video) was an adult act necessary to have babies. She further indicated to the child abuse investigator that Trusty’s “penis entered her vagina.” As in Richie v. State, 183 Ga. App. 248, 250 (1) (358 SE2d 648) (1987): “Her reluctance [at trial] to actually name the aggressor’s sex organ does not disallow a finding that that is what she meant and that that is what defendant was trying to insert in her.” She even circled that portion of an anatomically-correct drawing when describing the act.

The evidence sufficed to sustain a rape conviction.

2. Trusty argues that the court erred in sustaining an objection to his questioning the victim’s mother about prior false allegations of molestation.

Evidence of prior false accusations of sexual misconduct made by the prosecutrix is admissible to attack the credibility of the prosecutrix and as substantive evidence tending to prove that the instant offense did not occur. However, before evidence of a prior false accusation can be admitted, the trial court must make a threshold determination outside the presence of the jury that a reasonable probability of falsity exists. Defendants have the burden of coming forward with evidence at the hearing to establish a reasonable probability that the victim had made a prior false accusation of sexual misconduct. Finally, a trial court’s ruling upon the admissibility of such evidence will not be overturned absent an abuse of discretion.

(Citations and punctuation omitted.) Kelley v. State, 233 Ga. App. 244, 251 (5) (503 SE2d 881) (1998); see Smith v. State, 259 Ga. 135, 137 (1) (377 SE2d 158) (1989).

As in Allen v. State, 210 Ga. App. 447, 448 (1) (436 SE2d 559) (1993), “defense counsel asked . . . the question without first requesting the trial court to determine the admissibility of the line of inquiry outside the jury’s presence.” Furthermore, Trusty made no claim below that any prior molestation allegations by the victim were false. Not only did he fail to proffer evidence of their falsity, but the evidence was undisputed that the accusations against her brother (the only other allegations she made) were true. See Hicks v. State, 222 Ga. App. 828, 830 (1) (476 SE2d 101) (1996).

Decided April 29,1999.

Turner & Willis, Christopher W. Willis, for appellant.

N. Stanley Gunter, District Attorney, Lynn Akeley-Alderman, Assistant District Attorney, for appellee.

The court did not abuse its discretion in sustaining the objection.

Judgment affirmed.

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


author: Johnson, Chief Judge.

text:
    A99A0708.
    FOWLER et al. v. SMITH et al.
    (516 SE2d 845)
   Johnson, Chief Judge.

Dexter Fowler was a truck driver for Atlanta Motor Lines, Inc. While driving on Interstate 285, Fowler stopped his tractor-trailer because the lane in which he was traveling was blocked by a car that had lost a wheel. Some time later, Frederick Smith drove his car into the back of Fowler’s stopped truck. Smith died from injuries suffered in the collision.

Smith’s parents sued Fowler, Atlanta Motor Lines and its insurer, Liberty Mutual Insurance Company, asserting numerous claims of negligence. The parties filed opposing motions for summary judgment. Both motions were granted in part and denied in part by the trial court. Fowler, Atlanta Motor Lines and Liberty appeal.

1. Fowler, Atlanta Motor Lines and Liberty assert the trial court erred in granting summary judgment to the Smiths on the issue of whether Atlanta Motor Lines failed to retain a driver qualification file on Fowler pursuant to 49 CFR § 391.51 (a) & (c), which require motor carriers to maintain such a qualification file for each of their drivers and to retain the file for three years after the driver stops working for the carrier. Based on the evidence as it existed at the time of the hearing on the summary judgment motions, we are compelled to uphold the trial court’s ruling.

A former accountant and a former officer of Atlanta Motor Lines executed affidavits asserting that: (i) they were aware of the Federal Motor Carrier Safety Regulations requiring this type of file be kept for, at most, six months, (ii) Atlanta Motor Lines had performed all the record-keeping required by the Federal Motor Carrier Safety Regulations, and (iii) any documents not tendered in response to the Smiths’ discovery requests had been destroyed in the ordinary course of business by Atlanta Motor Lines.

Previously, the same accountant had testified by deposition that he knew nothing about the federal regulations pertaining to the interstate operation of tractor-trailers and that he was not aware that certain documents must be maintained in each driver’s file. The accountant subsequently executed a second affidavit in which he claimed that, although he was not aware of the applicable federal regulations when he was deposed, he thereafter studied the regulations and was familiar with them when he made his first affidavit.

The trial court found that the accountant had not given a reasonable explanation for the inconsistencies between his deposition and his first affidavit. The court then struck portions of the accountant’s first affidavit, including the assertions that all the documents not provided during discovery had been destroyed and that Atlanta Motor Lines had complied with applicable federal record-keeping requirements. The trial court also struck the officer’s affidavit in its entirety because it was not timely filed. Fowler, Atlanta Motor Lines and Liberty have not enumerated the striking of these affidavits as error. Thus, this issue is not before us on appeal. See DeKalb County v. Lenowitz, 218 Ga. App. 884, 887 (1) (463 SE2d 539) (1995); Roberts v. Cotton States Mut. Ins. Co., 186 Ga. App. 371, 373 (2) (367 SE2d 272) (1988).

Accordingly, on the day the trial court heard both motions for summary judgment, the evidence before the court was that Atlanta Motor Lines had not produced Fowler’s driver qualification file in response to the Smiths’ timely discovery requests. After the hearing but before the trial court issued its summary judgment order, Atlanta Motor Lines apparently found Fowler’s driver qualification file, served the Smiths with a copy of it and sent a letter to the trial judge informing him that the file had been located. Nevertheless, the court subsequently granted summary judgment to the Smiths on their claim that Atlanta Motor Lines had violated 49 CFR § 391.51 by failing to produce the driver qualification file during discovery.

Contrary to the complaints of Fowler, Atlanta Motor Lines and Liberty, the trial court was not required to consider Atlanta Motor Lines’ letter or its supplemental response to the Smiths’ requests for production of documents because these documents were not tendered before the hearing on the summary judgment motions. Parties have a duty to present their case in full at a hearing on a motion for summary judgment. W. E. Heller & Co. v. Aetna Business Credit, 158 Ga. App. 249, 252 (4) (280 SE2d 144) (1981). By failing to respond timely to the motion for summary judgment, Atlanta Motor Lines waived its right to present evidence in opposition to that motion. McGivern v. First &c. Properties, 188 Ga. App. 716, 717 (1) (373 SE2d 817) (1988); see Rapps v. Cooke, 234 Ga. App. 131, 132 (1) (505 SE2d 566) (1998); Uniform Superior Court Rule 6.2. It is in the trial court’s discretion whether to consider such untimely responsive materials. See Labat v. Bank of Coweta, 218 Ga. App. 187, 188 (1) (460 SE2d 831) (1995).

The trial court did not abuse its discretion in declining to consider the untimely evidence submitted by Atlanta Motor Lines. The untimely production of Fowler’s driver qualification file provides us with no basis for reversing the trial court’s ruling, which was correct based on the evidence presented at the hearing.

2. Fowler, Atlanta Motor Lines and Liberty argue the trial court erred in failing to grant their motion for summary judgment as to the Smiths’ claim for punitive damages. The argument is without merit.

In Georgia, employers or principals may be vicariously liable for punitive damages arising from the acts or omissions of their employees or agents if such tortious conduct is committed in the course of the employer’s or principal’s business, within the scope of the servant’s or agent’s employment, and is sufficient to authorize a recovery of punitive damages under OCGA § 51-12-5.1. See generally Sightler v. Transus, Inc., 208 Ga. App. 173,174 (430 SE2d 81) (1993); Gasway v. Atlanta & W. Point R. Co., 58 Ga. 216 (2) (1877). Acts or omissions constituting mere negligence or gross negligence will not support an award of punitive damages. Roberts v. Forte Hotels, 227 Ga. App. 471, 472 (1) (489 SE2d 540) (1997). Thus, “[i]n automobile collision cases decided under OCGA § 51-12-5.1, punitive damages are not recoverable where the driver at fault simply violated a rule of the road.” Carter v. Spells, 229 Ga. App. 441, 442 (494 SE2d 279) (1997). Punitive damages may be awarded, however, where it is proven by clear and convincing evidence that the defendant’s act or omissions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care that would raise the presumption of conscious indifference to the consequences. Id.; OCGA § 51-12-5.1 (b).

In the current case there exists some evidence that Fowler may have violated federal safety law by being stopped in the interstate’s center lane for approximately 35 minutes before the collision without placing triangular warning devices on the highway. See generally 49 CFR § 392.22 (b). There is also evidence that Fowler did not turn on his tractor-trailer lights after it became dark and his main truck lights were not on at the time of the collision. Moreover, there exists evidence that prior to the collision the flow of traffic did not prevent another truck that had stopped in front of Fowler from driving away without incident, whereas Fowler stayed with the driver of the disabled car, and did not move his own truck, until after the collision.

Decided April 29,1999.

Alembik, Fine & Callner, G. Michael Banick, Todd E. Schwartz, for appellants.

James C. West III, for appellees.

The cardinal rule of summary judgment procedure is that the court can neither resolve facts nor reconcile the issues, but can only determine if there is an issue. The party opposing the motion is to be given the benefit of all reasonable doubt and all favorable inferences that may be drawn from the evidence. See Powell v. Ferreira, 198 Ga. App. 465 (402 SE2d 85) (1991). Construing the evidence in the light most favorable to the Smiths, we find that genuine issues of material fact exist as to whether Fowler’s conduct demonstrated that entire want of care which would raise the presumption of conscious indifference to the consequences. Thus, the trial court did not err in denying the motion for summary judgment on the issue of punitive damages.

Judgment affirmed.

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

       See generally 49 CFR § 350.1 et seq.

       The appellants do not enumerate as error or argue in their brief that Liberty could not be held liable for punitive damages because Atlanta Motor Lines’ insurance contract does not provide coverage for punitive damages. Thus, this issue is not before us on appeal. We note that in Georgia an insurance contract providing coverage for punitive damages does not violate public policy. See Federal Ins. Co. v. Nat. Distributing Co., 203 Ga. App. 763, 768 (3) (417 SE2d 671) (1992).


author: Blackburn, Presiding Judge.

text:
    A99A0946.
    HORNE v. THE STATE.
    (517 SE2d 74)
   Blackburn, Presiding Judge.

Darrell Ray Horne appeals his conviction, following a jury trial, for driving under the influence of alcohol (OCGA § 40-6-391 (a) (1)) and driving with an unlawful alcohol concentration (OCGA § 40-6-391 (a) (5)), contending that the trial court erred by: (1) denying his motion for a directed verdict of acquittal; (2) denying his motion to suppress evidence of his intoxication because he was illegally stopped; (3) admitting two sequential test results from an Intoxilyzer 5000; and (4) overruling his Batson objection. For the reasons set forth below, we affirm.

1. Horne contends that the evidence was insufficient to support the verdict.

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

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

In the early morning hours of November 29, 1997, Corporal David Martin was making routine security checks of businesses in Fayette County. After inspecting a gas station, Martin began following Horne’s car, which was the only car in the area at that time of night. Soon thereafter, Horne, who was driving at that time, pulled his car off onto a side road, allowing Martin to pass by him. Martin observed Horne stopping on this side road for no apparent reason in his rear view mirror. Martin continued driving a short way and then pulled into the parking lot of a church where he waited to see if Horne passed by again. Home did pass by, and, as he did so, Martin saw that the driver was a white male wearing a baseball cap.

Martin followed Horne again and observed him weaving across the centerline into the opposite lane of traffic several times. Home then pulled into the parking lot of a closed gas station, and Martin continued driving forward. While stopped, Home changed places with his passenger, Judy Farr. Martin turned his car around and waited for Home’s car to leave the gas station. Afterwards, Martin pulled Horne’s car over, and Farr informed Martin that Home, who was wearing a baseball cap, had been driving, but she switched with him at the gas station because Horne had too much to drink earlier in the evening. Martin noticed that both Horne and Farr smelled like alcoholic beverages, that they were unsteady on their feet, and that their speech was slurred. Martin then arrested both Farr and Home. The results of an Intoxilyzer 5000 test showed Home’s blood-alcohol concentration to be .157 and .158.

This evidence was ample to support Horne’s convictions. See Jackson, supra.

2. Home contends that the trial court erred by denying his motion to suppress all evidence following the initial stop of his car, alleging that Martin made the stop without the appropriate articulable suspicion. However, “[t]his Court has specifically determined that an officer’s observation of a motorist’s ‘weaving may serve as sufficient reason to warrant an investigative stop for a possible DUI violation.” State v. Diamond, 223 Ga. App. 164, 166 (477 SE2d 320) (1996). Moreover, Home’s attempts to elude Martin support a finding that the appropriate articulable suspicion was present in this case.

3. Horne contends that the trial court erred by allowing both of the sequential test results from the Intoxilyzer 5000 breath test into evidence. OCGA § 40-6-392 (a) (1) (B) provides, in pertinent part:

In all cases where the arrest is made on or after January 1, 1995, and the state selects breath testing, two sequential breath samples shall be requested for the testing of alcohol concentration. For either or both of these sequential samples to be admissible in the state’s . . . case-in-chief, the readings shall not differ from each other by an alcohol concentration of greater than 0.020 grams and the lower of the two results shall be determinative for accusation and indictment purposes and administrative license suspension purposes.

(Emphasis supplied.) Thus, the statute, itself, clearly contemplates the admission of both sequential test results, and the trial court did not err.

Home’s secondary contention that the trial court erred by allowing the Intoxilyzer printout to go out with the jury as a continuing witness is also misplaced, as “[t]he proscription on the jury’s possession of written testimony does not extend to documents which are themselves relevant and admissible as original documentary evidence in a case.” (Punctuation omitted.) Hodson v. Mawson, 227 Ga. App. 490, 491 (2) (489 SE2d 855) (1997).

4. Horne contends that the trial court erred in overruling his objection to the State’s peremptory strike of an African American juror pursuant to Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986).

Batson involves a three-step process: the opponent of a peremptory challenge must make a prima facie showing of racial discrimination. The burden of production then shifts to the proponent of the strike to give a race-neutral reason for the strike. If a race-neutral reason is given, the trial court then decides whether the opponent of the strike has proven discriminatory intent.

Russell v. Parkford Mgmt. Co., 235 Ga. App. 81, 83 (2) (508 SE2d 454) (1998).

In this case, the State used one of its peremptory strikes against the only African American member of the jury panel, and Horne raised a Batson objection. The State explained that it struck this juror because she had a prior negative experience with police officers and she worked as a social worker. The trial court found these reasons to be sufficiently race-neutral, after which Horne provided no argument or evidence showing otherwise.

Decided April 29,1999.

Virgil L. Brown & Associates, Virgil L. Brown, Eric D. Hearn, Bentley C. Adams III, Larkin M. Lee, for appellant.

Steven L. Harris, Solicitor, for appellee.

In reviewing the trial court’s evaluation, we must be mindful that the ultimate burden of persuasion regarding racial motivation in the exercise of peremptory strikes rests with, and never shifts from, the opponent of the strike. In each of these matters, the findings of the trial court are entitled to great deference, and should not be disturbed unless clearly erroneous.

(Citation and punctuation omitted.) Russell, supra at 84.

Based on the record, the trial court appropriately overruled Home’s Batson objection. Horne’s mere speculation that the State’s use of its peremptory strike was racially motivated cannot alter this result. “[W]e are not authorized to create an inference of discrimination where none is apparent, and where none has been found by the trial court, to whose findings we must give great deference.” Lingo v. State, 263 Ga. 664, 668 (1) (c) (437 SE2d 463) (1993).

Judgment affirmed.

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


author: Eldridge, Judge.

text:
    A99A0673.
    JONES v. THE STATE.
    (515 SE2d 841)
   Eldridge, Judge.

After a bench trial, the trial court found Timothy Jones guilty of possession of cocaine. On appeal, he challenges the denial of his motion to suppress. We affirm the trial court’s ruling.

Gwinnett County Police Officer Mike Adams testified at the motion to suppress hearing. Adams testified that he routinely conducts patrols of an area of the county that includes a townhouse complex on Beaver Springs Lane. “I go there every single day[ ], it is one of our target areas.” This area is a high crime area and known for drug sales. “I’ve made several cases out of Beaver Springs Lane. I mean I personally have made dmg cases there, standing in that spot.”

On and around the incident date of July 2, 1997, Adams had received complaints about drugs being sold by several males standing out in front of an abandoned townhouse on Beaver Springs Lane. “[W]e get calls about Beaver Springs Lane from the residents daily.” In addition, Adams had received an anonymous tip that a man named Benny Hill was selling drugs in front of the townhouse. Adams was familiar with Hill from “past experiences.”

At just after midnight, Adams patrolled Beaver Springs Lane. Benny Hill was sitting on some railroad ties in front of the abandoned townhouse. Appellant Jones was sitting with him. The officer stopped his marked patrol vehicle to conduct a “field interview” with the men. As the officer approached, appellant Jones appeared to put something into his right shoe. During the field interview, Hill consented to a pat down search, during which drugs and drug paraphernalia were found on his person.

For the officer’s safety, he also conducted a weapons pat down of Jones. Officer Adams testified that such weapons search is a matter of standard operating procedure in a situation like the one confronting him on that occasion, i.e., “[a]ny time I make contact with people in the middle of the night, I’m always afraid. And the area, this is the biggest drug area in my district. We’ve had shootings and stabbings and everything down there. Just the area and the time of day. I felt scared.” During the pat down, the officer felt what he immediately knew to be a crack pipe in Jones’ pocket. He asked Jones “is this a crack pipe?” Jones replied “yeah, are you going to take me in for that?” The officer arrested Jones for violation of a county ordinance, “Loitering for drug related purposes.” During a search incident to arrest, Adams asked appellant Jones to remove his right shoe. A rock of crack cocaine fell from the shoe. Held:

When an appellate court reviews a trial court’s order concerning a motion to suppress evidence, the appellate court should be guided by three principles with regard to the interpretation of the trial court’s judgment of the facts. First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.

(Citations, punctuation, and emphasis omitted.) Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994).

1. Jones claims that Adams lacked “articulable suspicion” to conduct a Terry stop of Jones. We disagree.

Under Terry, an officer may make an investigatory stop where the officer has a reasonable articulable suspicion of criminal activity. McClain v. State, 226 Ga. App. 714, 716 (1) (487 SE2d 471) (1997). While the field interview with Jones cannot be considered a “Terry stop,” since no evidence shows that Jones was either stopped, questioned, or detained against his will, we find that a reasonable articulable suspicion of criminal activity existed so as to prompt the field interview with Jones. Officer Adams had been given information that several males were selling drugs in front of the abandoned townhouse on Beaver Springs Lane. Adams had made drug arrests at “that very spot.” Jones was one of two males standing in front of the abandoned townhouse at midnight. Drugs were found on Jones’ companion, Hill. This evidence provided reasonable, articulable suspicion of criminal activity so as to prompt an inquiry of Jones.

2. Next, Jones contends that even if the officer had grounds for conducting a field interview with him, a pat down weapons search was not authorized, because the officer had no basis upon which to reasonably believe that he was in danger from Jones. We strongly disagree.

[A] law enforcement officer, for his own protection and safety, may conduct a patdown to find weapons that he reasonably believes or suspects are then in the possession of the person he has accosted. A policeman making a reasonable investigatory stop should not be denied the opportunity to protect himself from attack by a hostile suspect. The purpose of this limited search is to allow the officer to pursue his investigation without fear of violence. . . . The question is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety was in danger.

(Citations and punctuation omitted.) Thompson v. State, 230 Ga. App. 131, 132-133 (495 SE2d 607) (1998). To that end, we have repeatedly held that “[i]t is not unreasonable for officers to anticipate that those who are suspected of involvement in the drug trade might be armed.” (Citations and punctuation omitted.) State v. Jarrells, 207 Ga. App. 192, 193 (4) (427 SE2d 568) (1993). “Firearms are tools of the drug trade.” (Citations and punctuation omitted.) Hayes v. State, 202 Ga. App. 204, 205 (414 SE2d 321) (1991); Condon v. State, 203 Ga. App. 163, 164 (416 SE2d 802) (1992); McGugan v. State, 215 Ga. App. 535 (451 SE2d 460) (1994).

Here, Officer Adams had been informed that several men were selling drugs in front of the abandoned townhouse on Beaver Springs Lane. Jones was one of two men standing in front of the abandoned townhouse at midnight. Drugs had been found on Jones’ companion. It was not unreasonable for the officer to suspect that Jones, too, was selling drugs and may be armed, as are so many in the “drug trade.” Hayes v. State, supra. In addition, the officer was questioning two men who were suspected drug dealers. Adams was well aware that there are frequent “shootings and stabbings and everything” at that precise location. Under the totality of the circumstances presented in this case, we find that “a reasonably prudent man in the circumstances would be warranted in the belief that his safety . . . was in danger.” Terry, supra at 27. Accordingly, it was reasonable for the officer to perform a minimally intrusive weapons pat down of Jones.

3. Jones contends that “a crack pipe not shown to contain cocaine residue is not contraband and therefore not subject to the plain feel corollary to the plain view doctrine.” Jones cites no authority for this proposition, and we reject it. Possession of drug related objects is against the law. OCGA § 16-13-32.2. In this case, the officer testified that he knew immediately that the hollow glass tube in Jones’ pocket was a pipe for smoking crack cocaine, and Jones admitted that the tube was a “crack pipe.” Possession of a “crack pipe” is possession of a drug related object in contravention of OCGA § 16-13-32.2. Thus, the seizure of the “crack pipe” was proper.

4. Jones contends that the State had the burden of proving the county ordinance, “Loitering for drug related purposes,” in order to establish probable cause to arrest Jones, and because the State failed to introduce the ordinance, the fruits of his arrest should have been suppressed.

We agree that the State failed to prove the ordinance.

Decided April 6,1999

Reconsideration denied April 30,1999

Clark & Towne, David E. Clark, for appellant.

Daniel J. Porter, District Attorney, John S. Melvin, Assistant District Attorney, for appellee.

However, the evidence of record is legally sufficient to establish that, prior to his arrest, appellant had committed the offense of [possession of drug related objects] in the arresting officer’s presence in violation of [OCGA § 16-13-32.2]. Such [State law offense] would provide the officer with legitimate grounds lawfully to arrest appellant. OCGA § 17-4-20 (a).

Williams v. State, 228 Ga. App. 698, 700 (492 SE2d 708) (1997). Again, we reject Jones’ contention that, absent the presence of cocaine residue, “State law does not prohibit possession of a crack pipe, even late at night in a high crime area while sitting next to a known drug dealer.” Jones again cites no law for this contention, and we are aware of none. While the presence of residue in a “crack pipe” may go to prove the element of “intent to use” under OCGA § 16-13-32.2, such residue is not, in itself, an essential element of the crime.

Judgment affirmed.

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

        Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).

       Even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual [and] ask to examine the individual’s identification, ... as long as the police do not convey a message that compliance with their requests is required.
      (Citations and punctuation omitted.) Florida v. Bostick, 501 U. S. 429, 434-435 (111 SC 2382, 115 LE2d 389) (1991).

       See also Montoya v. State, 232 Ga. App. 24, 25 (499 SE2d 680) (1998); Stewart v. State, 227 Ga. App. 659, 660-661 (490 SE2d 194) (1997); Pickens v. State, 225 Ga. App. 792, 794-795 (484 SE2d 731) (1997); McGugan v. State, 215 Ga. App. 535, 536 (451 SE2d 460) (1994); Wilson v. State, 210 Ga. App. 886, 887 (437 SE2d 867) (1993).


text:
    A97A1703.
    GODINHO v. CITY OF TYBEE ISLAND, GEORGIA.
    (517 SE2d 537)
    Decided April 30,1999.

      Barrow, Sims, Morrow & Lee, Jordon D. Morrow, for appellant.
   Eldridge, Judge.

In City of Tybee Island v. Godinho, 270 Ga. 567 (511 SE2d 517) (1999) the Supreme Court reversed the judgment of this Court’s opinion in Godinho v. City of Tybee Island, 231 Ga. App. 377 (499 SE2d 389) (1998). Therefore, we vacate our earlier opinion and adopt the opinion of the Supreme Court as our own.

Judgment affirmed.

Johnson, C. J., Pope, P. J., Andrews, P. J., Blackburn, P. J., Barnes, J., and Senior Appellate Judge Harold R. Banke concur.

Oliver, Maner & Gray, Patrick T. O’Connor, David S. Gruskin, for appellee.


text:
    A99A0083.
    SMITH v. THE STATE.
    (521 SE2d 7)
   Andrews, Judge.

Lloyd R. Smith appeals from denial of his motion for new trial following his conviction of aggravated assault against his then wife.

1. Smith’s second enumeration is that the trial court erred in denying his motion for directed verdict on the aggravated assault count, thereby raising the issue of the sufficiency of the evidence under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Viewed with all inferences in favor of the jury’s verdict, it was that Angela Smith and Smith were married in December 1994, shortly before he was chaptered out of the army.

On January 26,1995, the two began arguing over money at their apartment and continued arguing as Ms. Smith drove her car on the expressway with Smith in the passenger seat. Ms. Smith refused to tell Smith what she had done with money he had given her for rent and Smith became angry. Smith then struck her in the eye with his fist, causing a blowout fracture of her eye. Ms. Smith then went to her friend’s apartment where she retrieved the money. The friend called police and Smith left in Ms. Smith’s car. Smith contended the injury was caused by Ms. Smith’s hitting her head on the rear view mirror, although he pled guilty to simple battery as a result of the incident. This incident was introduced as a similar offense and is the subject of Division 2.

Smith and Ms. Smith reunited after the January incident, although their relationship did not improve. On May 20, 1995, Smith and Ms. Smith were visiting some friends when an argument began between Smith and another man. Smith believed the man had a gun and called the police who responded. The gun turned out to be a starter pistol. Ms. Smith went to the police and asked them to ask Smith to leave the apartment. The police discussed this with him and he agreed to leave. Around 10:00 p.m., Kelly, Ms. Smith’s brother, agreed to take Smith where he wanted to go because he did not want Ms. Smith to have to take him.

Ms. Smith went to sleep in her living room around midnight after putting her son to bed. Because she was nervous about Smith’s returning, she placed a love seat in front of the locked front door. Around 5:00 a.m., Ms. Smith heard a key in the lock and the love seat was pushed aside by Smith, who said he wanted to talk. Although she asked him to leave, he did not. Smith had a cold hard look on his face and Ms. Smith was afraid. In a few minutes, Smith got up and went into the kitchen, returning with a hammer. Ms. Smith was sitting on the sofa and Smith approached her and struck her on the side of the head with the hammer. After engaging in the acts that were the subject of the remaining counts, Smith left the apartment in Ms. Smith’s car.

Although Smith argues that this incident was an accident caused by their struggle for the hammer and that inconsistencies in Ms. Smith’s testimony required a directed verdict, such inconsistencies went only to the credibility of Ms. Smith, a matter inherently for the jury’s determination. Price v. State, 228 Ga. App. 155, 157 (4) (491 SE2d 210) (1997). This court cannot substitute its judgment on the issue of credibility for that of the jury. Luke v. State, 222 Ga. App. 203, 206 (2) (474 SE2d 49) (1996).

The testimony of a single witness, even if inconsistent, is legally sufficient as long as there is some competent evidence to make out the State’s case, as there was here. Smith v. State, 222 Ga. App. 887 (1) (476 SE2d 653) (1996).

2. Smith contends that the trial court erred in admitting evidence of the January incident, which resulted in a misdemeanor guilty plea to simple battery, in the trial of the felony aggravated assault incident in March, because the two incidents were not sufficiently similar under the third prong of Williams v. State, 261 Ga. 640, 643 (2) (d) (409 SE2d 649) (1991).

Pursuant to the State’s notice of intention to introduce the prior act, the court conducted the hearing and made the findings required by Williams, supra, concluding, as do we, that the similarities were sufficient for introduction into evidence for purposes of proving Smith’s course of conduct and bent of mind. Both incidents involved physical assaults upon his wife’s head after arguments, both resulted in serious injuries to her, both were followed by his leaving the location of the incident, and his establishment of another explanation for her injuries that negated his responsibility.

“The rule allowing the admission of similar transaction evidence is usually applied more liberally with evidence of prior attempts by the accused to commit the same crime upon the victim of the offense for which he stands charged. Certain otherwise inexplicable assaults, such as occur in a series of incidents of wife or child abuse, particularly lend themselves to this exception to the ‘other offenses’ rule on questions of both identity and motive.” (Citations and punctuation omitted.) Parcell v. State, 198 Ga. App. 439 (1) (401 SE2d 628) (1991). The evidence was properly admitted.

Herring v. State, 224 Ga. App. 809, 814 (4) (481 SE2d 842) (1997). See also Smith v. State, 232 Ga. App. 290, 294-295 (1) (501 SE2d 523) (1998).

The fact that the prior offense was a misdemeanor and the one on trial is a felony is not an obstacle to its use for this purpose. See Rodriguez v. State, 211 Ga. App. 256, 258 (4) (439 SE2d 510) (1993).

There was no abuse of discretion in admitting this prior act.

3. Smith’s third enumeration is that the trial court erred in not giving, without a request to charge, a charge on the defense of accident, based on Metts v. State, 210 Ga. App. 197, 198 (435 SE2d 525) (1993). As reflected therein, when the defendant’s sole defense is accident, it is error to fail to give appropriate instructions on it, even without request.

A review of the evidence here, however, reveals that Smith’s own version of the incident belies the accident defense. He told Detective McClenton that Ms. Smith assaulted him with the hammer first, they wrestled, and then “/ made the hammer go back and strike her, trying to take it.” (Emphasis supplied.) Smith testified at trial that he refused to leave the apartment because he had nowhere else to go. As he was trying to push past Ms. Smith to go to the bedroom, she started hitting him with the hammer, they wrestled, and “[s]he got popped in the head with the hammer.”

Therefore, the defense of accident was not Smith’s sole defense since he acknowledged intending to strike her and failure to give such a charge without request was not error. See Virgil v. State, 227 Ga. App. 96, 98 (2) (488 SE2d 694) (1997).

4. Finally, Smith contends that his trial counsel was ineffective and seeks a new trial on that basis.

The sole basis argued here for this claim is that trial counsel failed to request a charge on Smith’s sole defense of accident, which was not error, as held in Division 3. Further, this argument was not presented to the trial court during Smith’s motion for new trial hearing, only that a request for instruction on lesser included charge to aggravated assault should have been made. Therefore, there is nothing for us to review in this regard.

Judgment affirmed.

McMurray, R J., and Ruffin, J., concur.

Decided April 30,1999

Joseph Wiley, Jr., LaRae A. Dixon, for appellant.

J. Gray Conger, District Attorney, Melvin E. Hyde, Jr., Assistant District Attorney, for appellee.

       Smith was also charged with aggravated sodomy, rape, and false imprisonment arising from the same incident of May 20, 1995, but was acquitted of those charges.

       Defined by OCGA § 16-2-2 as a defense when it is shown that “there was no criminal scheme or undertaking, intention, or criminal negligence.”


author: Andrews, Judge. McMurray, Presiding Judge,

text:
    A99A0289.
    LEACH v. MONROY.
    (517 SE2d 95)
   Andrews, Judge.

Kelly Leach sued Cirilo Monroy in DeKalb County Superior Court alleging she was injured in an automobile accident in DeKalb County caused by Monroy. After Leach was unable to locate Monroy for personal service, Leach served Monroy by publication pursuant to a court order, then served the complaint on her uninsured motorist carrier pursuant to OCGA § 33-7-11. Leach appeals from the trial court’s subsequent order dismissing the action on the basis that Leach failed to act diligently in obtaining personal service on Monroy.

Leach filed the complaint against Monroy on February 12, 1998, seeking damages for personal injuries arising out of the automobile accident which occurred on February 26,1996. On February 23,1998, the sheriff filed a return of service showing that Monroy could not be found within the jurisdiction of the court. On February 25, 1998, Leach filed a motion seeking service by publication along with an affidavit in support of the motion stating that Monroy could not be found. On February 25, 1998, one day before the expiration of the two-year personal injury statute of limitation (OCGA § 9-3-33), the trial court granted the motion, ordered that Monroy be served by publication, and Monroy was subsequently served by publication. On March 12, 1998, the sheriff filed a return of service showing that on February 17, 1998, Leach’s uninsured motorist carrier was timely served pursuant to OCGA § 33-7-11 (d). On April 21, 1998, Monroy filed an answer through his attorney raising the defenses of lack of personal jurisdiction, insufficient service of process, laches, and expiration of the statute of limitation.

Monroy subsequently moved for summary judgment on Leach’s action against him on the basis that the two-year statute of limitation in OCGA § 9-3-33 expired on February 26,1998, that he had not been personally served with the action, and that Leach was guilty of laches in failing to act with due diligence to locate and personally serve him. The trial court treated the motion as a motion to dismiss and dismissed Leach’s action on the basis that Monroy had not been personally served, and that Leach had not acted with due diligence.

Although service by publication was not sufficient to confer in personam jurisdiction over Monroy, the order granting service by publication was, in effect, an ex parte finding that Leach had exercised due diligence in attempting to locate and personally serve Monroy. Douglas v. Woon, 205 Ga. App. 355, 356 (422 SE2d 61) (1992). It thus served as an ex parte finding that Leach had carried her burden of proving she had exercised diligence sufficient to justify service by publication under OCGA § 33-7-11 (e) as a basis for a nominal judgment against Monroy and recovery from the uninsured motorist carrier. Id.; Bailey v. Lawrence, 235 Ga. App. 73, 76 (508 SE2d 450) (1998); Wentworth v. Fireman’s Fund &c. Ins. Cos., 147 Ga. App. 854, 855 (250 SE2d 543) (1978); Boles v. Hamrick, 194 Ga. App. 595 (391 SE2d 418) (1990).

Monroy’s motion contested the trial court’s prior ex parte finding of diligence. In granting the motion and dismissing the case on the basis that Leach failed to exercise diligence in locating and serving Monroy, the trial court, in effect, voided its prior order allowing service by publication, and concluded that the record failed to show Leach had carried the burden of establishing diligence. Norman v. Daniels, 142 Ga. App. 456, 460 (236 SE2d 121) (1977). Due diligence “is a question of fact which addresses itself in the first instance to the discretion of the trial court.” Id. at 460. We find no abuse of discretion in the trial court’s conclusions. Based on the trial court’s finding, there was no basis for service by publication pursuant to OCGA § 33-7-11 (e), and no basis for personal service on Monroy after the statute of limitation had expired. Accordingly, the trial court did not err in dismissing the entire action.

Judgment affirmed.

McMurray, P. J., and Ruffin, J., concur specially.

McMurray, Presiding Judge,

concurring specially.

I agree with the judgment of affirmance because the evidence authorizes the trial court’s finding that plaintiff Leach did not exercise all due diligence to serve defendant Monroy personally after the limitation period expired within two weeks of filing this tort action. I do not join in that portion of the opinion intimating that an ex parte finding of one of the several grounds authorizing service of the defendant by publication, in order to pursue one’s own uninsured motorist carrier, is tantamount to a finding that plaintiff in fact exercised due diligence in order to serve the defendant personally, because the statute permitting service by publication does not necessarily require a showing that personal service has even been attempted. Bailey v. Lawrence, 235 Ga. App. 73, 76 (2) (508 SE2d 450). Since the record here clearly shows that the trial court did not rely on any prior ex parte finding, I concur in the judgment.

Decided April 30,1999.

Scott Walters, Jr., for appellant.

Shur, McDuffie, Brockman & Leveille, Michael L. Morgan, Chambers, Mabry, McClelland & Brooks, James S. Anderson, for appellee.

I am authorized to state that Judge Ruffin joins in this opinion.


text:
    A99A0439.
    ARNOLD v. THE STATE.
    (517 SE2d 97)
   Eldridge, Judge.

Charles Nathaniel Arnold appeals from a Bartow County jury’s verdict finding him guilty of the armed robbery of the Golden Gallon convenience store at the corner of Felton Road and Highway 41 in Cartersville, Georgia. In this appeal, Arnold contends that the trial court erred in denying his motion to suppress evidence obtained as a result of an allegedly illegal search of his temporary residence. We affirm Arnold’s conviction.

In a light most favorable to the verdict, a man entered the Golden Gallon at approximately 11:30 p.m. on New Year’s eve, December 31, 1996. He got a quart bottle of beer from the cooler and approached the counter. When the female clerk asked for I.D., the man pulled out a gun and demanded money from the cash register. The man then jumped the counter and put the gun into the clerk’s back. The clerk was ordered to open the safe because the perpetrator “want[ed the] deposit.” A video camera caught the interaction, including the point at which the clerk looked directly at the gunman as he threatened to “blow [her] brains out,” while the clerk begged “please don’t kill me.” Thereafter, the perpetrator left the Golden Gallon with the quart of beer and approximately $6,300. The clerk activated the silent alarm. The Cartersville Police initiated an investigation.

Two days after the incident, an employee of the Guest House apartments, which are located next to the Golden Gallon, discovered on the Guest House property two twenty-dollar bills bound together with identification markings and a notation stating “safe.” A quart bottle of beer was nearby. The employee called the Cartersville police. The Golden Gallon clerk identified the money as coming from the Golden Gallon safe and identified the markings as her identification numbers. As a consequence, the police investigator showed the Golden Gallon videotape to employees of the Guest House apartments. On January 7, 1997, the investigator received information from a housekeeper that the perpetrator in the video resembled a visitor to the Guest House, who frequently stayed with the resident of apartment 415.

That same day, the police investigator learned that Daryll Rush rented apartment 415. The investigator enlisted the aid of the Guest House manager and knocked on the door of apartment 415. No one answered, and the manager let the investigator in to look for the suspect. In looking for the suspect, the investigator opened a closed bathroom door and saw suspected marijuana in plain view. She left immediately, obtained a search warrant and back-up, re-entered the apartment, and searched apartment 415 pursuant to the warrant.

During this search for marijuana, a black Daisy Powerline BB pistol, which fit the description of the handgun used in the Golden Gallon armed robbery, was discovered in the top of a closet under some clothing. Leaving the apartment secured, the investigator left and obtained a second search warrant in order to search apartment 415 for additional items possibly involved in the armed robbery. Subsequently seized were the black BB pistol, a pair of black denim pants, a green and blue baseball cap, a pair of Nike tennis shoes, a light yellow jacket, and a jewelry sales receipt for $94.49 made out on January 2, 1997, to appellant Charles Arnold. Pursuant to the investigation, the investigator also learned that Charles Arnold, who is Daryll Rush’s cousin, was temporarily residing in apartment 415.

Arnold was arrested on January 10, 1997. After Miranda warnings, he gave a statement to the police in which he denied involvement in the incident, although he gave several conflicting stories as to his whereabouts at the time of the armed robbery. A photographic line-up was immediately put together and was shown to the Golden Gallon clerk. She unhesitatingly picked out Arnold as the perpetrator of the December 31 armed robbery.

At the hearing on the motion to suppress, Arnold argued that the investigator’s initial entry into apartment 415 to look for a suspect was an illegal search conducted without a warrant and without justifying, exigent circumstances. The State countered that the rental agreement between Daryll Rush and the management of the Guest House apartments specifically created an “Innkeeper/guest” relationship — not a landlord/tenant relationship — and, additionally, such agreement reserved to the Innkeeper a right of entry for “purposes of cleaning, performing repairs and/or service work, and preventative maintenance.” The trial court concluded that, while the question was “close,” the specifics of the rental agreement permitted the initial entry into Rush’s apartment in which Arnold temporarily resided. Consequently, the trial court denied Arnold’s motion. Held:

1. Contrary to the State’s assertions, an “Innkeeper/guest” relationship does not negate the guest’s right to privacy in the accommodations. Minnesota v. Olson, 495 U. S. 91, 96, fn. 5 (110 SC 1684, 109 LE2d 85) (1990). Nor are we prepared to find that a lease agreement that contains a “right of entry” for specific, normally scheduled purposes, such as maid service or repairs, is sufficient to demonstrate an affirmative “waiver” by the lessee of any expectation of privacy as to all entries into the leased premises.

[T]he Supreme Court [has] said that a place need not be respondent’s “home,” temporary or otherwise, in order for him to enjoy a reasonable expectation of privacy there. The Fourth Amendment protects people, not places, and provides sanctuary for citizens wherever they have a legitimate expectation of privacy.

(Citations, punctuation, and emphasis omitted.) State v. Brown, 212 Ga. App. 800, 802 (442 SE2d 818) (1994).

Thus, we find incorrect as a matter of law the basis upon which Arnold’s motion to suppress was denied. In this case, the initial, improper entry led to the finding of the marijuana, which led to the finding of the BB pistol, which led to the finding of the remaining items seized. Arnold’s motion to suppress this “fruit” of the initial, improper entry should have been granted.

2. Having said that, “[t]he question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.” (Citation and punctuation omitted.) LaRue v. State, 137 Ga. App. 762, 764 (224 SE2d 837) (1976). See also Johnson v. State, 238 Ga. 59, 60 (230 SE2d 869) (1976); Baker v. State, 202 Ga. App. 892 (416 SE2d 295) (1992). Under the specific facts of this case, we find that none of the evidence seized as a “fruit” of the initial, improper entry could reasonably be construed as contributing to the verdict in this case.

(a) When shown the BB pistol seized during the search of apartment 415, the Golden Gallon clerk testified that she got a good look at the gun, but also testified that “[i]t was so fast. He jumped the counter and he put the gun in my back.” The clerk testified that the BB gun looked similar to the gun used in the robbery and, only later, testified that “I cannot tell you that’s the exact gun. That looks exactly like the gun.” Nothing about the weapon itself would serve to inculpate Arnold in the armed robbery. There was no ballistics evidence and no fingerprint evidence. Nor was the weapon found in Arnold’s possession, having been located in the top of a closet belonging to Daryll Rush. Further, the Golden Gallon videotape in which the weapon could be seen did not show that the weapon seized was the weapon used in the armed robbery.

(b) The black denim pants seized in the search of apartment 415 were not the pants worn by the perpetrator. The Golden Gallon clerk testified that the pants worn by the perpetrator “were loose. They weren’t jeans.”

(c) The blue and green baseball cap seized in the apartment was not the hat worn by the perpetrator. The clerk testified that the armed robber wore a black hat with a black toboggan underneath.

(d) The Nike tennis shoes seized during the search of the apartment were not the shoes worn by the armed robber. “They weren’t tennis shoes. . . . They were just a pair of black shoes. It wasn’t boots.”

(e) As for the light yellow jacket seized in the search of the apartment, the clerk testified that she did not know if the perpetrator was wearing a light yellow jacket: “[Q:] Do you know if it was yellow or was it — [A:] No, I can’t honestly tell you if it was yellow now.”

(f) The jewelry store receipt seized during the search was dated January 2, 1997, two days after the Golden Gallon incident, and did not connect Arnold to the armed robbery. To the extent that the receipt demonstrated that Arnold was in possession of $94.49 in order to buy jewelry, the State’s evidence also showed that Arnold’s wife had given him money for Christmas and that Arnold had held down a paying job for the six months preceding the January 2 purchase and had been paid a few days before the purchase.

Far from inculpating Arnold, the defense attorney made good use of the evidence seized in the search of apartment 415 in order to demonstrate the flaws in the police investigation. The fact that nothing seized in the apartment could be identified as either used in the armed robbery or worn by the perpetrator served only to illustrate defense counsel’s point that the investigator’s arrest of Arnold was as mistaken as the investigator’s seizure of the items.

Accordingly, under the facts of this case, the admission of such evidence, while error, was harmless. LaRue v. State, supra.

3. The clerk’s positive identification of Arnold as the perpetrator of the armed robbery, along with Arnold’s conflicting statements as to his whereabouts on New Year’s eve and his resemblance to the perpetrator in the Golden Gallon videotape shown to the jury during trial, provided sufficient evidence for a rational trier of fact to have found Arnold guilty of armed robbery beyond a reasonable doubt. Jackson v. Virginia, supra.

Decided April 30,1999.

Levinson & Paul, Christopher G. Paul, for appellant.

T. Joseph Campbell, District Attorney, Kelly F. Herron, Assistant District Attorney, for appellee.

Judgment affirmed.

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

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

        Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

       Based upon the evidence, the trial court correctly found that Arnold had sufficient standing to challenge the search of the apartment.


author: Ruffin, Judge.

text:
    A99A0723.
    COLLINS v. NEWMAN.
    (517 SE2d 100)
   Ruffin, Judge.

Mechelle Collins sued Spencer Newman, a licensed veterinarian, for damages resulting from an operation Newman performed upon Collins’ dog, alleging that Newman left certain medical instruments inside the dog during a spaying procedure. The complaint also alleged that Newman failed to provide Collins with certain veterinary records that might have supported a claim for malpractice. Contemporaneously with his answer, Newman filed a motion to dismiss the complaint on the grounds that it was barred by the statute of limitation and that Collins had failed to provide the expert affidavit required by OCGA § 9-11-9.1. The trial court granted the motion upon both grounds, and Collins appeals. For reasons discussed below, we affirm.

1. Plaintiff’s brief violates Court of Appeals Rule 27 in at least two particulars. First, the brief does not contain a single citation to the record as required by Rules 27 (a) (1) and 27 (c) (3). Second, the brief does not contain separate statement of facts and argument sections, as required by Rules 27 (a) (1) and 27 (a) (3), but simply contains a single section entitled “Statement of Facts and of the Case/ Argument and Citation of Authority.” This violation is more than simply technical, since it makes it difficult to distinguish between those statements intended merely as factual assertions and those intended to constitute an argument for reversal.

“We are authorized to disregard or treat as abandoned enumerations of error for failure to comply with our rules of practice.” Vaughan v. Brown, 181 Ga. App. 680 (1) (353 SE2d 608) (1987). Where the record is small and the issues are clearly framed and argued in an appellant’s brief, we often elect in our discretion to address the merits of the appellant’s enumerations, as perceived by this Court. See Beman v. Kmart Corp., 232 Ga. App. 219, 220 (1) (501 SE2d 580) (1998); Vaughan, supra. However, where an appellant’s failure to follow the rules of this Court makes it difficult to perceive the true grounds of the appellant’s appeal, it would be inappropriate for this Court to speculate as to possible bases for reversal that might be lurking in the record but are not clearly articulated in the brief and supported by argument and citation to authority. As we have often said, “it is not the function of an appellate court to cull the record in search of error on behalf of a party.” Sparti v. Joslin, 230 Ga. App. 346, 347 (2) (496 SE2d 490) (1998). Moreover, the failure of an appellant to clearly articulate the basis for seeking reversal prejudices the appellee by making it difficult to present arguments in rebuttal.

In this case, we elect to consider Collins’ contention that an expert affidavit was not required for her professional negligence claim, since that contention is minimally supported in her brief by argument and citation to authority. However, we do not address any other issues that might be lurking in the record but are not specifically supported in the brief by argument and citation to authority.

2. OCGA § 9-11-9.1 (a) states that

[i]n any action for damages alleging professional malpractice against a professional licensed by the State of Georgia and listed in subsection (f) of this Code section . . . the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.

Veterinarians are included among the professionals identified in the statute. OCGA § 9-11-9.1 (f) (24). If an expert affidavit is not filed when required, and the defendant files a motion to dismiss on such grounds contemporaneously with his initial responsive pleading, the complaint is subject to dismissal for failure to state a claim. OCGA § 9-11-9.1 (b).

Collins does not contest the fact that her action constituted an action for professional negligence. However, she contends that an expert affidavit was not required because it would be apparent to a layman that leaving an instrument inside a patient constitutes professional negligence. This argument is without merit.

Notwithstanding the fact that there is a “judicially-created rule” dispensing with the expert-evidence requirement in cases of “clear and palpable” professional negligence, . . . OCGA § 9-11-9.1 supersedes this rule, so that even in cases of “clear and palpable” professional negligence it is still necessary that the plaintiff file an expert affidavit contemporaneously with the filing of the complaint.

Decided April 30,1999.

John Matteson, for appellant.

Weissman, Nowack, Curry & Wilco, Leigh Wilco, Joan C. Green, for appellee.

Housing Auth. of Savannah v. Greene, 259 Ga. 435, 436 (1) (383 SE2d 867) (1989). See also Barr v. Johnson, 189 Ga. App. 136, 137 (375 SE2d 51) (1988); Jackson v. Dept. of Transp., 201 Ga. App. 863, 865-866 (412 SE2d 847) (1991); Richmond, Leasing Co. v. Cooper, Cooper, Maioriello & Stalnaker, 207 Ga. App. 623 (1) (428 SE2d 603) (1993). Accordingly, the trial court correctly dismissed Collins’ claim for professional negligence due to her failure to file an expert affidavit.

3. Due to our holding above, it is unnecessary to address Newman’s argument that Collins’ claims are barred by the statute of limitation.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.

       For instance, one sentence in the combined statement of facts/argument section of Collins’ brief references certain claims relating to Newman’s alleged failure to release veterinary records that Collins asserts would have supported her malpractice claim. However, this sentence is in the nature of a factual statement, and Collins does not, in this section of her brief, provide argument or citation of authority as to how the existence of these claims requires reversal of the trial court’s order. Given Collins’ failure to comply with our rules, we do not elect to consider this sentence as constituting a separate argument for reversal.


author: Barnes, Judge.

text:
    A99A0161.
    GUNTER v. THE STATE.
    (517 SE2d 105)
   Barnes, Judge.

After her indictment for armed robbery and attempted armed robbery, Constance Gunter was tried by jury and convicted only of criminal attempt to commit the armed robbery of Eddie Scott. She now appeals her conviction, contending that the evidence is insufficient, as a matter of law, to sustain her conviction and further contends the trial court erred by denying her motion for a directed verdict. We disagree and affirm.

A directed verdict of acquittal should be granted only when there is no conflict in the evidence and the evidence with all reasonable deductions and inferences demands a verdict of acquittal as a matter of law. OCGA § 17-9-1 (a); Taylor v. State, 252 Ga. 125, 127 (1) (312 SE2d 311) (1984). Further, the test established in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), is the appropriate one to use when the sufficiency of the evidence is challenged. Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436) (1984).

On appeal, a reviewing court may consider all the evidence in the case (Bethay v. State, 235 Ga. 371, 375 (1) (219 SE2d 743) (1975)) and must view the evidence in the light most favorable to the verdict. Humphrey v. State, supra, 252 Ga. at 527. Further, the presumption of innocence no longer applies (Watts v. State, 186 Ga. App. 358 (1) (366 SE2d 849) (1988)), and the appellate court determines the sufficiency of the evidence and does not weigh the evidence or judge the credibility of the witnesses. Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990).

Viewed in the light most favorable to the verdict, the evidence shows Frankie Timmons drove his father’s pickup with Eddie Scott as his passenger to visit a friend and buy marijuana or crack cocaine. Because they could not find their friend, they asked a man, later identified as Ricky Swain, for assistance, and he put them in contact with Gunter who would buy beer for them. Then, Timmons, Scott, Swain, and Gunter drove off to get the beer. After they purchased the beer and were approaching Gunter’s apartment complex, Gunter, who was seated right behind Scott, started hitting Scott in the head with a beer bottle. Timmons turned and saw that Swain had a pistol; Swain said, “give me your stuff.” At this point Scott escaped from the truck, but Timmons remained behind and Swain took his jewelry and money. After searching around in the truck, Gunter found a pistol that she took with her when she left.

Additionally, one of Gunter’s friends testified that after the robbery, Gunter showed him the pistol and other items taken and Gunter and Swain bragged to him about the robbery. They even pointed out the victims of the crime when they passed them on the street.

Gunter, however, testified and denied participating in the robbery or attempted robbery. Swain also testified, despite his guilty pleas to the contrary, that he and Gunter did not rob Timmons or attempt to rob Scott. Nevertheless, although acquitting her of the robbery of Timmons, the jury found Gunter guilty of the attempted robbery of Scott.

Notwithstanding Gunter’s denial and Swain’s testimony, we conclude the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that Gunter was guilty of the attempted armed robbery of Scott. Jackson v. Virginia, supra. Therefore, the evidence is sufficient to support the verdict, and the trial court did not err by denying Gunter’s motion for a directed verdict of acquittal.

Judgment affirmed.

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

Decided May 3,1999.

C. Nathaniel Merritt, for appellant.

Dupont K. Cheney, District Attorney, James S. Archer, Assistant District Attorney, for appellee.


text:
    A99A0715.
    In the Interest of K. D. S., a child.
    (517 SE2d 102)
   Judge Harold R. Banke.

Finding seven-month-old K. D. S. deprived, the court in 1994 ordered him placed with the Fulton County Department of Family & Children Services. Over a period of three years, the court extended the placement twice more, each time finding the child deprived and finding the mother failed to comply with court-ordered reunification plans. In 1997 DFACS petitioned to terminate the mother’s rights, which the court granted after a hearing. She appeals on sufficiency of the evidence. Held:

1. Construing the evidence most favorably to the findings of the court, the question on appeal is whether a rational trier of fact could have found clear and convincing evidence (a) of parental misconduct or inability and (b) that terminating parental rights was in the best interest of the child. OCGA § 15-11-81; In the Interest of B. C., 235 Ga. App. 152, 153 (508 SE2d 774) (1998). Parental misconduct or inability is shown by evidence (i) the child is deprived, (ii) lack of parental care caused the deprivation, (iii) such is likely to continue, and (iv) the continued deprivation is likely to cause serious harm to the child. OCGA § 15-11-81 (b); B. C., supra.

(a) Deprivation. The court three times found the child to be deprived, none of which orders the mother appealed. For purposes of the termination hearing, the mother was bound by this finding of deprivation. In the Interest of E. C., 225 Ga. App. 12, 15 (482 SE2d 522) (1997); see In the Interest of J. M. B., 231 Ga. App. 875, 878 (1) (a) (501 SE2d 259) (1998).

(b) Lack of Proper Parental Care and Control. Where the child is not in the custody of the parent who is the subject of the proceedings, the court may consider whether the parent has unjustifiably failed (i) to communicate or to make a bona fide attempt to communicate with the child, (ii) to provide for the care and support of the child as required by law or judicial decree, and (iii) to comply with a court-ordered reunification plan. OCGA § 15-11-81 (b) (4) (C). The significant period is the year prior to filing the termination petition.

All of these factors weighed against the mother. During the year preceding the filing of the petition, she was in contact with the child on only two occasions, and then only because the foster parents took him to see her. She consistently failed to appear for scheduled visits, even though they were set up at her request. This does not reflect a bona fide attempt to communicate with the child. See In the Interest of M. E. C., 228 Ga. App. 9, 12 (1) (b) (2) (491 SE2d 107) (1997).

OCGA § 19-7-2 requires all parents to support their minor children. In the Interest of C. G. A., 204 Ga. App. 174, 175 (1) (418 SE2d 779) (1992). While the child has been in foster care, the mother has not paid anything in support of him, even when she had a job. See supra, 231 Ga. App. at 878 (1) (b) (mother failed to provide child support); M. E. C., supra, 228 Ga. App. at 12-13 (1) (b) (3) (child support was only sporadic).

Until the termination petition was filed, she made no bona fide attempt to comply with the court-ordered reunification plans. She did not regularly visit the child, she did not earnestly pursue her G.E.D., she refused to cooperate in counseling efforts, and she did not establish a stable living environment. She refused to participate in parenting classes until after the petition was filed. See In the Interest of R. P., 216 Ga. App. 799, 801 (2) (456 SE2d 107) (1995). Failure to comply with a reunification plan is a significant factor justifying termination. See M. E. C., supra, 228 Ga. App. at 13 (1) (b) (4); In the Interest of A. S. M., 214 Ga. App. 668, 672-673 (2) (448 SE2d 703) (1994). New compliance efforts after the filing of the termination petition are of questionable significance. In the Interest of J. S., 232 Ga. App. 876, 880 (1) (502 SE2d 788) (1998).

(c) Cause of Deprivation Likely to Continue. Past conduct of the mother may reflect whether the conditions of deprivation are likely to continue. In the Interest of C. W. D., 232 Ga. App. 200, 204 (1) (501 SE2d 232) (1998). She lost the child because of her expressed desire to give the child up and because of an abusive, unstable, and unhealthy living environment. Over the four-year life of the child while in the custody of DFACS, she has had only sporadic visits with the child and admits he does not know her and has not bonded with her. She has moved frequently and has not established a permanent or stable living environment. She has held jobs infrequently and has not diligently pursued her education. She has provided no financial support for the child and has refused to cooperate in needed counseling. Not only is the inference of continued deprivation appropriate here, but the court heard testimony that there was no possibility she would progress in the near future toward being able to care for the child.

The mother’s recent attempts to put her life in order are unconvincing. She has employment, but at the time of the hearing she had held that employment for only one month. She has a place she calls home (with her boyfriend’s sister), but must soon vacate the premises. She completed the mandated parenting class, but only after the terminatibn petition was filed. Evidence supported the court’s discounting these efforts.

Decided May 3,1999.

Hassett, Cohen & Goldstein, Daniel S. Glickman, 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, Philip B. Campbell, for appellee.

(d) Continued Deprivation Likely to Cause Harm. The same evidence authorized the court to conclude that the continued deprivation will likely cause serious physical, mental, emotional, or moral harm to the child. In the Interest of K. L., 234 Ga. App. 719, 722 (507 SE2d 542) (1998).

2. The evidence showing the existence of parental misconduct or inability also supports a finding that termination of parental rights of the mother would be in the child’s best interest. B. C., supra, 235 Ga. App. at 155 (c). Moreover, the DFACS caseworker testified that K. D. S. was very bonded to the foster parents, who for the last two years have provided a loving and nurturing environment and have expressed interest in adopting him. See M. E. C., supra, 228 Ga. App. at 14-15 (2).

A rational trier of fact could have found by clear and convincing evidence that the statutory factors were shown. The court did not err in terminating the mother’s parental rights.

Judgment affirmed.

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