text:
    A98A0716.
    DOWIS v. THE STATE.
    (501 SE2d 275)
   Johnson, Judge.

The procedural history of this misdemeanor case is as follows: Cary E. Dowis was charged by accusation with two counts of hunting without a license and one count each of driving with a suspended license, no proof of insurance, driving a vehicle without a valid license plate, hunting with a prohibited weapon, hunting without a big game license, and hunting without fluorescent orange clothing. Acting pro se, Dowis subsequently filed a notice and demand by special appearance to abatement and motion to dismiss for lack of jurisdiction. Following a hearing, the relief sought by this pleading was denied. Approximately one month later, Dowis filed a Writ of Prohibition against the Chief Judge of the superior court. The writ was denied. Dowis was convicted of the above eight counts in a bench trial.

Dowis appealed his judgment of conviction to the Supreme Court of Georgia, raising several constitutional claims. The Supreme Court transferred the case to this Court, holding that the constitutional issues raised were not ruled upon by the trial court. The Supreme Court further held that any viable constitutional claims remaining involve an application of unquestioned and unambiguous constitutional provision.

The salient facts of this case are as follows: A ranger with the Georgia Department of Natural Resources responded to a complaint of shots being fired. Upon his arrival, the ranger observed a man emerging from the woods. This man produced a license to hunt big game and was not detained. Dowis emerged from the woods a short time later. He was riding a four-wheeler ATV and had a crossbow on his back; it was the only weapon the ranger saw. Dowis admitted that he was hunting. When asked to produce his hunting license, Dowis stated that “he was a sovereign citizen and did not have a license to hunt or drive.” He also stated that he was not required to have a driver’s license “because he was using the highway in the extraordinary use.” Dowis did not have any type of license in his possession. A GCIC check revealed that Dowis’ driver’s license had been suspended. Dowis was cited for hunting without a license and hunting with a prohibited weapon; the crossbow was held as evidence. The ranger informed Dowis that he would later check with his superior to verify whether Dowis’ possession of the crossbow was illegal. Dowis was not cited for driving without a license at this time, although the ranger informed him of its suspended status. The ranger subsequently performed a records check and determined that Dowis had not, in fact, been issued a special permit to hunt with the crossbow.

Two days later, during deer season, the ranger and his partner observed Dowis in a tree stand holding a loaded rifle. The tree stand was on private property belonging to others. Dowis was not wearing the fluorescent clothing required by OCGA § 27-3-40, although he had a fluorescent vest in his pocket. Dowis admitted that he did not have a hunting license and asserted that he “wasn’t required to have one.” Dowis was arrested for the hunting violations and his rifle seized. Dowis’ vehicle was present and a re-check revealed that his driver’s license was still suspended. Approximately two months later, Dowis drove a pickup truck to and from the county courthouse for a hearing. The ranger who had initially stopped Dowis in the woods saw appellant driving the untagged vehicle on a public roadway and notified a deputy sheriff of these facts. Based on this information, the deputy sheriff stopped Dowis’ truck. Dowis’ truck did not have a valid license tag or decal. The only tag which it had displayed was a paper tag which either read, “C. E. Dowis, Sovereign Citizen” or “Citizen of Georgia.” Dowis failed to produce a driver’s license or proof of insurance. Dowis asserted that he was exempt from the insurance requirement. A police check confirmed that Dowis’ driver’s license was suspended. The deputy then arrested Dowis. Dowis has consistently asserted that he is not required to have a driver’s license, car tag, car insurance, or a hunting license because he is a sovereign citizen of this state.

1. Dowis’ contention that the trial court erred in deciding that he has no right to use the highways and streets of Georgia is without merit. Although Dowis claims that he does not have to have a license when using highways for the ordinary and usual purposes of life, the right to operate a motor vehicle upon the public highways of this state is a qualified right which can be exercised only by obtaining a state driver’s license. Ward v. State, 188 Ga. App. 372, 373 (1) (373 SE2d 65) (1988).

2. Dowis’ contention he was illegally arrested without a warrant and his property taken from him without due process of law also is without merit. Essentially, Dowis contends that he was illegally arrested on two separate occasions by the rangers and the deputy sheriff, respectively, and that his crossbow, rifle and truck were illegally taken from him without due process of law.

(a) Seizure of the truck. The record does not contain any affirmative evidence that Dowis’ truck was illegally seized, towed and held. Facts asserted in briefs but unsupported by evidence of record cannot be considered on appeal. Behar v. Aero Med Intl., 185 Ga. App. 845, 846 (1) (366 SE2d 223) (1988). Moreover, even if this evidence had been admitted erroneously in a bench trial, there exists no reasonable probability that it would contribute to the verdict; the error would be harmless. See Ragan v. State, 264 Ga. 190, 192 (3) (442 SE2d 750) (1994). To obtain case reversal on appeal, an appellant must prove both error and harm affirmatively by the record. Robinson v. State, 212 Ga. App. 613, 616 (2) (442 SE2d 901) (1994).

(b) Seizure of the crossbow. Hunting with a crossbow is prohibited except under such circumstances and conditions as prescribed by rule or regulation of the Board of Natural Resources. OCGA §§ 27-1-2 (7); 27-3-4 (6). The ranger testified that Dowis did not have any type of license in his possession when the crossbow was seized and that a records check subsequently verified that Dowis was not issued a special permit for the crossbow. At no time during trial did Dowis assert that he met any of the circumstances or conditions for carrying a crossbow, as prescribed by rule or regulation of the Board of Natural Resources. Rather, he objected because the crossbow was seized without a warrant. He also asserted that hunting with a crossbow on private property is not illegal. As Dowis did not raise at trial a claim of any statutory exception authorizing him to hunt with a crossbow, this issue was not before the trial court and preserved for appeal. Flynn v. State, 88 Ga. App. 52, 53 (3) (76 SE2d 38) (1953); compare Greenhill v. State, 199 Ga. App. 218, 219 (2) (404 SE2d 577) (1991). We consider on appeal only issues properly raised before the trial court. See Long v. Marion, 257 Ga. 431, 432 (1) (360 SE2d 255) (1987).

Moreover, OCGA § 27-1-20 (8) provides that conservation rangers shall have the power “[t]o seize as evidence, without warrant, any device other than a boat, vehicle, or aircraft when they have cause to believe that its possession or use is in violation of any of the provisions of the laws or regulations dealing with wildlife.” (Emphasis supplied.) Construing the evidence in a light most favorable to support the verdict, we find that the ranger lawfully seized Dowis’ crossbow.

(c) Seizure of the rifle. OCGA § 27-1-20 (4) provides that conservation rangers shall have the power “[t]o arrest without warrant any person found violating any of the laws, rules, and regulations pertaining to wildlife or to hunting, fishing, or boating.” (Emphasis supplied.) See also OCGA § 27-1-18 (a) (2), (3). The rangers had the requisite knowledge sufficient to warrant a prudent person in believing that Dowis had committed or was committing misdemeanor offenses, by hunting without a license, by hunting big game without a license and by hunting without the required fluorescent clothing. Callaway v. State, 257 Ga. 12, 13 (2) (354 SE2d 118) (1987). The rangers had authority to seize appellant’s rifle without a warrant. OCGA § 27-1-20 (8).

(d) Arrest of Dowis. Based on the information relayed by the ranger to the sheriff’s department, the deputy sheriff had the articulable suspicion required to stop Dowis’ truck for a traffic violation. See Walton v. State, 194 Ga. App. 490, 491 (2) (390 SE2d 896) (1990). During the course of the investigative detention, the deputy obtained sufficient evidence of Dowis’ various traffic violations to give him probable cause to arrest Dowis without a warrant. See generally Callaway, supra.

(e) Constitutional claims. As the trial court did not rule on any constitutional claims asserted by appellant, none of these issues are preserved for appeal. See Whatley v. State, 196 Ga. App. 73, 75 (1) (395 SE2d 582) (1990).

3. Notice of demand by special appearance to abatement and motion to dismiss for lack of jurisdiction. The record reveals that a hearing was held on Dowis’ pleas in abatement and motion to dismiss but no transcript of this hearing is included in the record on appeal. The record before us contains no viable evidence of lack of jurisdiction. “The burden is on the complaining party, including pro se appellants, to compile a complete record of what happened at the trial level, and when this is not done, there is nothing for the appellate court to review.” (Citation and punctuation omitted.) Kegler v. State, 267 Ga. 147, 148 (3) (475 SE2d 593) (1996). Without the hearing transcript to review, this Court must assume as a matter of law that the evidence presented supported the trial court’s findings. Johnson v. State, 261 Ga. 678, 679 (2) (409 SE2d 500) (1991).

Judgment affirmed.

Birdsong, P. J, and Smith, J., concur.

Decided April 7, 1998.

Cary E. Dowis, pro se.

Timothy G. Madison, District Attorney, for appellee.


source: Caselaw Access Project

author: Blackburn, Judge.

license: Public Domain

text:
    A98A0772, A98A0773.
    BROOKS v. THE STATE (two cases).
    (501 SE2d 286)
   Blackburn, Judge.

On October 1, 1993, James Brooks was convicted for committing the crimes of child molestation and incest against his minor daughter, C. B., and he was sentenced to 20 years of imprisonment. Brooks appeals, contending numerous errors. For the reasons set forth below, we affirm the convictions.

1. In his first and twenty-second enumerations of error, Brooks contends that it was improper for the trial judge to instruct the jury that “[y]ou should consider with great care and caution the evidence of any statements made by the defendant. The jury may believe any statement in whole or in part, believing that which you find to be true and rejecting that which you find to be untrue.” This charge is virtually identical to the one set out in the Suggested Pattern Jury Instructions for Criminal Trials. As such, we find no error.

2. In his second enumeration of error, Brooks contends that the trial judge improperly allowed C. B. to use his chambers during the course of the trial and allowed his secretary to escort C. B. to lunch.. More specifically, Brooks contends that these actions violated Uniform Superior Court Rule 4.1 which states that “judges shall neither initiate nor consider ex parte communications by interested parties or their attorneys concerning a pending or impending proceeding.” Brooks offers no evidence that any such prohibited communications took place. To the contrary, he admits that he has no knowledge of ex parte communications, if any, that occurred between the victim and the judge in this matter. Accordingly, Brooks’ claim is meritless.

3. In his third enumeration of error, Brooks contends that the trial court improperly granted the State’s motion to quash his subpoena for records from the Department of Family & Children Services because such motion was not in writing. Even assuming that this was an error by the trial court, such error must be considered harmless, as Brooks has pointed to no specific document contained within the DFACS files which would have been relevant to his case. See Davis v. State, 209 Ga. App. 187, 190 (5) (433 SE2d 366) (1993). Indeed, Brooks admits that he has no real idea as to what such files contained. Accordingly, this enumeration has no merit.

4. In his fourth and twenty-first enumerations of error, Brooks contends that the trial court erroneously admitted the testimony of S. W. concerning similar transaction evidence because it did not conduct a hearing out of the presence of the jury regarding S. W.’s credibility. The record indicates that the trial court provided Brooks with the opportunity to have such a hearing; however, Brooks failed to produce any witnesses. “Moreover, given the direct identification of [Brooks by his daughter] as the assailant, it is highly probable that admission of the evidence [complained of] did not contribute to the verdict, and any error in allowing the testimony was thus harmless.” (Punctuation omitted.) Stirrat v. State, 226 Ga. App. 350, 353 (2) (b) (486 SE2d 640) (1997).

5. In his fifth enumeration of error, Brooks contends that the State knowingly entered perjured testimony. Specifically, Brooks contends that Detective M. C. Hendrix perjured himself because his testimony was contradicted by another witness during trial. The record, however, does not support Brooks’ claim, as there is no evidence that Hendrix knowingly and wilfully gave false testimony. See OCGA § 16-10-70.

6. In his sixth enumeration of error, Brooks contends that the trial court committed error by failing to grant his motion for funds to examine blood evidence showing that he fathered E. B., the child of his daughter V. B. “The rule in this state is clear. The granting or denial of a motion for appointment of expert witnesses lies within the sound discretion of the trial court. Unless there has been an abuse of discretion, the trial court’s ruling will be upheld.” (Punctuation omitted.) Jackson v. State, 249 Ga. 751, 755 (295 SE2d 53) (1982). In Thornton v. State, 255 Ga. 434 (339 SE2d 240) (1986), our Supreme Court held that the defendant therein should have been granted funds for an expert. However, the court specifically limited its holding, stating “[t]he ruling of this case cannot serve as a basis for wide-ranging demands on behalf of indigent defendants for scientific investigative funds. This case is, assuredly, far from the normal, in that, so far as has been made to appear to us, the evidence we have discussed is the only connecting link between Thornton and the homicide. Further, the record establishes that the possible scientific proof to be offered by the state is highly unusual in nature, as opposed to evidence such as blood samples, ballistic reports, and other routine scientific analyses.” (Emphasis supplied.) Id. at 435 (4). In this case, there was a great deal of evidence linking Brooks to the crimes against his daughter C. B., including C. B.’s testimony which was supported and corroborated by several other witnesses without reference to the blood evidence. Clearly, then, as Brooks sought funds to examine blood samples which did not constitute the only link between him and the crimes of which he was accused, the trial court did not abuse its discretion in denying Brooks’ request.

7. In his seventh enumeration of error, Brooks contends that he received ineffective assistance of counsel because the jury was not polled and defense counsel did not object. “[Brooks] has cited us to no authority requiring trial counsel, in order to effectively represent his client, to poll the jury. . . . [W]e do not agree with [Brooks] that [his] counsel was ineffective.” Malerba v. State, 172 Ga. App. 457, 458 (1) (323 SE2d 666) (1984). This enumeration is meritless.

8. In his eighth enumeration of error, Brooks contends that the trial court erred by not holding a presentence hearing. The record, however, indicates the trial court inquired as to whether there were other matters to be addressed prior to sentencing and the defendant responded negatively. This has been found to be sufficient. See McLelland v. State, 203 Ga. App. 93, 96-97 (13) (416 SE2d 340) (1992).

9. In his ninth enumeration of error, Brooks contends that the trial court’s revocation of his bond denied him the right to assist his counsel at trial. Brooks, however, has not provided this Court with any evidence of what assistance he could have given or whether such assistance could have changed the outcome of his trial. See generally Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984). This enumeration, therefore, must be rejected.

10. In his tenth enumeration of error, Brooks contends that it was error for the trial court not to immediately hold a hearing on his claim of ineffective assistance of counsel the moment he raised the issue during the pendency of his trial. Brooks filed an action in the United States District Court attempting to enjoin his trial from proceeding on the basis that his counsel was not prepared for trial. In essence, Brooks contends that his claim for ineffective assistance should have been heard in the middle of rather than at the end of his trial. Brooks, however, has pointed us to no authority which supports this claim. We note, however, that an ineffective assistance of counsel claim is properly brought after a trial has been concluded and a verdict has been issued. As a practical matter, it is impossible to determine, prior to the result of the representation, whether such representation was ineffective. As such, this enumeration is meritless. We also note that Brooks’ counsel testified that, contrary to Brooks’ claims, she was ready for trial at a subsequent hearing concerning revocation of Brooks’ bond.

11. In his eleventh enumeration of error, Brooks contends that his character was improperly placed into evidence by testimony that he abused his children. Specifically, Brooks argues that he was charged only with sex crimes and that the evidence of abuse was extraneous to the crimes with which he was charged. This contention is meritless. As an initial matter, we note that Brooks did not object to this evidence during trial. To the contrary, Brooks cross-examined some witnesses with regard to abuse occurring within his home. Furthermore, “[t]he state is entitled to present evidence of the entire res gestae of the crime. Even though a defendant is not charged with every crime committed during a criminal transaction, every aspect of it relevant to the crime charged may be presented at trial. This is true even if the defendant’s character is incidentally placed in issue.” (Punctuation omitted.) Burton v. State, 212 Ga. App. 100 (1) (441 SE2d 470) (1994). This contention, therefore, has no merit.

Brooks also contends that the State improperly likened him to David Koresh, the deceased leader of the cult of Branch Davidians, in closing arguments. This contention also has no merit. “The permissible scope of [closing] argument is vast: counsel may draw from the evidence properly before the factfinder any inference apparently reasonable and legitimate. Counsel should be allowed considerable latitude of speech; and so long as extraneous facts are not injected or improper language used, the trial judge should not interfere. Upon the facts in the record, and upon the deductions the attorney may choose to draw therefrom, an attorney may make almost any form of argument the attorney desires. That the deductions set forth by counsel may be illogical, unreasonable, or even absurd, is matter for reply by adverse counsel, and not for rebuke by the court.” (Citations and punctuation omitted.) Morgan v. State, 267 Ga. 203 (1) (476 SE2d 747) (1996). In this case, there was evidence that Brooks, a minister, manipulated his children by telling them that he was a prophet of the Lord. As such, the State’s closing argument was not improper.

12. In his twelfth enumeration of error, Brooks contends that his sentence of twenty years constituted cruel and unusual punishment. Brooks’ sentence, however, was within the statutory limits for the crimes of which he was convicted. See OCGA § 16-6-4. Therefore, this enumeration of error is meritless.

13. In his thirteenth, fourteenth, and fifteenth enumerations of error, Brooks contends that the trial court erroneously failed to suppress blood test results showing him to be the father of E. B., the child of his daughter V. B. Specifically, Brooks argues that the blood tests were fraudulently administered, involuntary, and improperly admitted in the absence of a showing of a chain of custody. We note that Brooks did not object to chain of custody during trial. As such, this contention must be considered to be waived. Newton v. State, 226 Ga. App. 501, 503 (3) (486 SE2d 715) (1997). Pretermitting the efficacy of Brooks’ remaining contentions, a reversal of his conviction would not be required in light of other overwhelming evidence that he committed the crimes of incest and child molestation against C. B., whose direct testimony that her father molested her and had sexual intercourse with her was corroborated by numerous other witnesses. Toledo v. State, 216 Ga. App. 480, 482-483 (5) (455 SE2d 595) (1995).

14. In his sixteenth enumeration of error, Brooks contends that the denial of his motion for new trial must be reversed because the trial judge who ruled on his motion for new trial could not certify that he had read the trial transcript. However, the record shows that Brooks, himself, had been in possession of the needed transcript, and would not relinquish control of it, even though he had been ordered by the trial court to do so. Therefore, this enumeration of error must be rejected.

15. In his seventeenth enumeration of error, Brooks contends that he received ineffective assistance of counsel. “In order to establish ineffectiveness of trial counsel under Strickland v. Washington, [supra at 687], [Brooks] must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. See also Bowley v. State, 261 Ga. 278 (4) (404 SE2d 97) (1991). Unless a defendant makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable.” (Punctuation omitted.) Stephens v. State, 265 Ga. 120, 121-122 (2) (453 SE2d 443) (1995). In addition, “[t]here is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance and that any challenged action might be considered sound trial strategy. In the absence of testimony to the contrary, counsel’s actions are presumed strategic. The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.” (Punctuation omitted; emphasis supplied.) Binion v. State, 222 Ga. App. 333, 334 (1) (474 SE2d 208) (1996). It is not necessary to address specifically and individually each and every one of Brooks’ numerous allegations of ineffective assistance of counsel. Brooks has neither satisfied his burden under Strickland, nor has he provided this Court with testimony from the attorney whom he claims to have been ineffective. As such, Brooks’ claims with regard to ineffectiveness of his trial counsel are without merit.

16. In his eighteenth enumeration of error, Brooks contends that he was denied a hearing on his claims for ineffective assistance of counsel at his motion for new trial. The record shows that, in accordance with an order issued by the United States District Court which Brooks himself sought and obtained, Brooks was given a motion for new trial hearing at which he had the opportunity to present evidence regarding his claims for ineffective assistance of counsel. Brooks, however, failed to subpoena any witnesses to appear at this hearing, including his trial and appellate counsel. As a result, “only those matters which relate to alleged errors made during the course of the trial as shown by the transcript can be reviewed.” Harkness v. State, 225 Ga. App. 864, 866 (2) (485 SE2d 810) (1997).

17. In his nineteenth enumeration of error, Brooks contends that his convictions should be reversed because there was undue delay in the hearing of his motion for new trial. The record reveals, however, that this delay was largely due to Brooks’ own actions and delay tactics. Accordingly, Brooks’ claim in this regard has no merit. See generally Barker v. Wingo, 407 U. S. 514 (92 SC 2187, 33 LE2d 101) (1972).

18. In his twentieth enumeration of error, Brooks contends that the trial court abused its discretion by allowing the State to bolster the credibility of its witnesses. See OCGA § 24-9-84. Pretermitting the efficacy of Brooks’ claim, “even if we were to construe the witness’ testimony as improper bolstering, we hold that in the context of the evidence as a whole, it is highly probable that the testimony in question did not contribute to the verdict.” (Punctuation omitted.) Knight v. State, 207 Ga. App. 846, 847 (1) (429 SE2d 326) (1993).

19. Finally, Brooks argues that the trial court erred in denying his motion for supersedeas bond, contending, among other things, that the court applied an improper standard of law in reaching its decision and that he received ineffective assistance of standby counsel. All arguments advanced by Brooks are meritless.

“The burden of seeking a stay of execution and a release on bond is upon the applicant. Thus under Birge [v. State, 238 Ga. 88 (230 SE2d 895) (1976)], the trial court should not grant bond pending appeal unless the applicant presents sufficient information, evidence, or argument to convince the trial court that an affirmative response is not appropriate as to any of the Birge criteria. Also, the trial court may consider the evidence adduced at trial that is pertinent to this determination.” Jarrett v. State, 222 Ga. App. 521, 522 (474 SE2d 702) (1996). An appellate court will not question the trial court’s discretion unless it has been flagrantly abused. Wade v. State, 218 Ga. App. 377, 378 (2) (461 SE2d 314) (1995).

Brooks argues that the trial court improperly based its decision to deny supersedeas bond on OCGA § 17-6-1 (g). Based on this Code section, the decision whether to grant Brooks an appeal bond is placed within the discretion of the trial judge. Here, based on the nature of Brooks’ crimes against his own children, we find no abuse of discretion in the denial of his bond.

Decided April 7, 1998

David D. Bishop, for appellant.

James Brooks, pro se.

Paul L. Howard, Jr., District Attorney, Peggy R. Katz, Assistant District Attorney, for appellee.

Brooks’ argument that he was denied effective assistance of standby counsel is also meritless. “[T]he complaints [Brooks] raises about [standby] counsel’s performance . . . occurred [while Brooks] was representing himself. He is therefore barred from raising those complaints on appeal.” Wakily v. State, 225 Ga. App. 56, 58 (3) (483 SE2d 313) (1997). Furthermore, we note that Brooks himself testified that his standby counsel had been extremely helpful at his motion for new trial.

20. As the State’s reply briefs were filed untimely in this matter, we grant Brooks’ motion to strike such briefs, and they have not been considered for purposes of this appeal. Accordingly, we also do not consider Brooks’ responses to the State’s reply briefs.

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.

       Because the order from the Federal Court obtained by Brooks required that his hearing be held in 30 days, the trial court could not have given Brooks a continuance to subpoena witnesses.


author: Johnson, Judge.

text:
    A98A0774.
    BISH v. THE STATE.
    (501 SE2d 283)
   Johnson, Judge.

Dale E. Bish has filed an appeal. His sole enumeration of error is that the trial court erred in denying his motion for judgment of acquittal. However, since it is the duty of an appellate court to inquire sua sponte into its jurisdiction where there is doubt, we must examine the sufficiency of the notice of appeal to determine if this Court has jurisdiction over this appeal. Pruitt v. State, 227 Ga. 188, 189-190 (179 SE2d 339) (1971). We conclude that jurisdiction is lacking and this appeal must be dismissed.

Bish’s notice of appeal merely recites: “Comes now defendant and files notice of appeal in the above-referenced matter.” (Punctuation and emphasis omitted.) This notice on its face fails to identify' any judgment or other directly appealable ruling or order from which this appeal is taken. Further, the notice does not contain a brief statement of the offense and the punishment prescribed, the court appealed to, a designation of those portions of the record to be omitted from the record on appeal, and a concise statement as to why the appellate court appealed to has jurisdiction. See generally OCGA § 5-6-37. OCGA § 5-6-37 sets forth the information which should be court. In view of the substantial deficiencies in this notice of appeal, the appeal is dismissed for lack of jurisdiction. Ballew v. State, 225 Ga. 547 (170 SE2d 242) (1969); Fredericks v. State, 168 Ga. App. 278 (308 SE2d 693) (1983); compare Brumby v. State, 264 Ga. 215 (443 SE2d 613) (1994), where the notice of appeal specified it was from “the judgment entered herein on 1992 February 28.”

Decided April 7, 1998.

Willie L. Fields, for appellant.

Spencer Lawton, Jr., District Attorney, Clare A. McGuire, Assistant District Attorney, for appellee.

Appeal dismissed.

Birdsong, P. J., and Smith, J., concur.


author: Pope, Presiding Judge.

text:
    A98A0361.
    BLEDSOE v. MORNINGSIDE BAPTIST CHURCH OF ATLANTA.
    (501 SE2d 292)
   Pope, Presiding Judge.

John Bledsoe, the former pastor of Morningside Baptist Church, sued Morningside Baptist, alleging that it wrongfully terminated his employment in violation of the church’s constitution and bylaws. The superior court granted Morningside Baptist’s motion for summary judgment, finding that it had no jurisdiction pursuant to the First Amendment of the United States Constitution since Bledsoe was asking that the court interpret ecclesiastical rules of the church. The court also concluded that Bledsoe was an employee at will and that he had no cause of action against the church for wrongful termination. Here Bledsoe appeals, arguing that factual issues remain and that the court’s findings were erroneous. Because we agree with the superior court that it lacked jurisdiction to consider this matter, we affirm.

The case arose from the following undisputed facts. Morningside Baptist is a Southern Baptist Church, which is governed by a constitution and bylaws. Those bylaws provided that the “Pastor shall be called for as long a period of time as mutual satisfaction shall prevail.”

John Bledsoe became the pastor of Morningside Baptist in 1987. On January 16, 1994, 46 of the 59 Morningside Baptist church members who were present at the January church conference voted to terminate Bledsoe’s employment as pastor. Following this meeting, Bledsoe’s attorney wrote the church claiming that the termination was improper because it did not conform to the rules set forth in the church constitution and bylaws. Bledsoe’s attorney claimed that those rules mandated that the personnel committee or the Board of Deacons recommend the pastor’s discharge to the congregation; the letter stated that the church membership’s authority to discharge Bledsoe was limited by the constitution and bylaws. In response to this letter, the Board of Deacons met on February 7 and approved the actions of the church conference and recommended that the conference vote to reaffirm its previous decision. Accordingly, at its February meeting, pursuant to the Board’s recommendations, the church conference voted to reaffirm its previous termination of Bledsoe.

Bledsoe filed suit claiming that he was improperly terminated. The church filed an answer, claiming that Bledsoe’s termination was proper. The church claimed that “just cause” for Bledsoe’s termination could be found in part from his failure to attend to “the individual spiritual and emotional needs of the congregation” and his failure “to minister in a manner consistent with the church’s view of the best method for preaching the Christian Gospel.”

The threshold question in this case is whether the superior court had jurisdiction. Citing First Born Church of the Living God v. Bank South, 221 Ga. App. 739 (472 SE2d 469) (1996), Bledsoe argues that resolution of this dispute does not constitute an impermissible intrusion by the court into ecclesiastical matters. Bledsoe argues that this dispute involves property rights — a permissible category of court inquiry. See generally Kidist Mariam &c. Church v. Kidist Mariam &c. Church, 219 Ga. App. 470, 473 (1) (465 SE2d 491) (1995); Anderson v. Dowd, 268 Ga. 146 (1) (485 SE2d 764) (1997).

We affirm the superior court’s conclusion that it lacked jurisdiction. “The case of Serbian Eastern Orthodox Diocese v. Milivojevich, [426 U. S. 696, 710 (96 SC 2372, 49 LE2d 151) (1976)], involved the church’s removal of the bishop, as well as his ultimate defrocking, and the reorganization of the diocese into three dioceses. The Supreme Court held that the Illinois state courts contravened the First and Fourteenth Amendments by engaging in improper inquiries into ecclesiastical matters, a prohibited zone even though some property questions were involved. That decision, and those upon which it is built, constitute the firm foundation upon which the unavoidable conclusion must be reached in this case, which is that it involves a religious dispute the resolution of which does not belong in the civil tribunal. . . . The Supreme Court in Serbian Orthodox Diocese crystallized the constitutional mandate ‘that civil courts are bound to accept the decisions of the highest judicatories of a religious organization of hierarchical polity on matters of discipline, faith, internal organization, or ecclesiastical rule, custom, or law.’ 426 U. S. 713. What is involved here falls within that territory, which must remain foreign to civil tribunals.” (Emphasis supplied.) McDonnell v. Episcopal Diocese, 191 Ga. App. 174, 177 (381 SE2d 126) (1989) (physical precedent only).

Decided April 8, 1998.

John F. McClellan, Jr., for appellant.

Goodman, McGuffey, Aust & Lindsey, Edward H. Lindsey, Jr., for appellee.

“As quoted by this court in Monahan [v. Sims, 163 Ga. App. 354, 359 (2) (294 SE2d 548) (1982)], from Kedroff v. St. Nicholas Cathedral, 344 U. S. 94, 116 (73 SC 143, 97 LE 120) (1952): ‘Freedom to select the clergy, where no improper methods of choice are proven, we think, must now be said to have federal constitutional protection as a part of the free exercise of religion against state interference.’ As demonstrated by Serbian Eastern Orthodox Diocese, the removal of the clergy is also an ecclesiastical matter even when property is involved.” McDonnell v. Episcopal Diocese, 191 Ga. App. at 177. Accordingly, the superior court correctly determined that it lacked jurisdiction to consider the matter. See generally First Born Church of the Living God v. Hill, 267 Ga. 633 (481 SE2d 221) (1997) (determining that a superior court’s order compelling an annual meeting of the church membership constituted unconstitutional judicial interference in the government of the Church).

This case is distinguishable from Reddick v. Jones, 251 Ga. 195 (304 SE2d 389) (1983), and Hickman v. Booker, 231 Ga. 129 (200 SE2d 279) (1973). In Reddick, the pastor had a year-to-year employment contract, whereas in this case no such contract was involved. In Hickman, the pastor of one church filed a complaint to enjoin the bishop of another church “from interfering with his performing his duties and receiving the benefits of his office as pastor. . . .” Hickman, 231 Ga. at 129. In this context, our Supreme Court concluded that “the pastor’s salary was a sufficient, disputed property interest to allow the court to assume jurisdiction.” See Gervin v. Reddick, 246 Ga. 56, 57 (268 SE2d 657) (1980). In this case, Bledsoe’s salary is only peripheral to the main issue of the case — whether Bledsoe was properly terminated. And the determination of whether Bledsoe was properly fired was not a question properly before the superior court.

Judgment affirmed.

Beasley and Ruffin, JJ, concur.


author: Ruffin, Judge.

text:
    A98A0629.
    CRUTCHFIELD v. THE STATE.
    (501 SE2d 294)
   Ruffin, Judge.

Joe Robert Crutchfield was charged with kidnapping, aggravated sodomy, possession of a firearm by a convicted felon, and two counts of armed robbery. He pleaded guilty to all the charges and was sentenced to various years on the several counts. The Superior Courts Sentence Review Panel of Georgia affirmed the sentence. Crutchfield subsequently filed a “Motion to Correct Invalid Sentence,” asserting that the trial court improperly increased his sentence. The trial court denied the motion and Crutchfield appealed pro se to this Court. We affirm.

The evidence shows that Crutchfield was apprised of his rights and voluntarily and knowingly pleaded guilty to the charges. He responded affirmatively when the trial judge asked him if his attorney had apprised him of the ramifications of pleading guilty, if he understood that the maximum sentence he could receive was 85 years or life imprisonment, and if he understood that the trial court did not have to abide by the State’s plea recommendation. During the plea hearing, the trial judge asked Crutchfield: “Do you understand that the District Attorney has made a recommendation in this case, that’s 20 to serve 15 on Counts One and Two; ten years to serve on Counts Three and Count Four and five years to serve on Count Five; and they have recommended that the sentences be consecutive to each other on Counts One and Two and Three, Four and Five to run concurrent with those sentences?” Crutchfield responded, “Yes, sir.”

At the end of the hearing, the trial judge stated “I will impose the following sentence: As to Count One and Count Two, the sentence there will be 20 years to serve 15 on each of those counts to run consecutive to each other. As to Counts Three and Four, there will be a ten-year sentence to serve on each of those. Count Three will run concurrent with Count One. Count Four will run concurrent with Count Two. As to the five-year sentence on Count Five, that will run concurrent with Count One. In other words, you actually are facing 20 to serve 15.” (Paragraph indentation omitted.) The sentence was reduced to writing.

In his “Motion to Correct Invalid Sentence” and in his appeal to this Court, Crutchfield has maintained that the trial court only sentenced him to serve 15 years. This assertion is apparently based on the trial court’s statement that “[i]n other words, you actually are facing 20 to serve 15.” Crutchfield argues that the trial court improperly increased his sentence from a 15-year sentence to two consecutive 15-year terms of confinement. We disagree.

The trial court clearly set forth the State’s plea recommendation, which Crutchfield accepted and the trial judge followed. Twice during the plea hearing, the trial court explained the terms of the proposed sentence. Crutchfield said that he understood that the State’s recommendation was twenty years to serve fifteen years on each of the two armed robbery counts, with these terms of confinement to run consecutively. The sentence that was reduced to writing and implemented was exactly the same as set forth by the trial court at the plea hearing. There is no evidence of any change in the sentence after the trial court’s imposition of the sentence in open court.

Decided April 8, 1998

Joe R. Crutchfield, pro se.

J. Tom Morgan, District Attorney, Maria Murder-Ashley, Assistant District Attorney, for appellee.

By relying on one sentence from the plea hearing taken out of context, Crutchfield ignores other evidence, including his acknowledgment that he understood that the sentence included two consecutive fifteen-year terms. Even if Crutchfield’s reliance on the trial court’s sole statement has some justification, we note that “[a]n oral declaration as to what the sentence shall be is not the sentence of the court; the sentence signed by the judge is. [Cit.]” Curry v. State, 248 Ga. 183, 185 (4) (281 SE2d 604) (1981). The sentence signed by the trial judge in this case was the same as the State’s plea recommendation that Crutchfield understood to include two consecutive fifteen-year terms of imprisonment.

Accordingly, we find no evidence that the trial court abused its discretion in sentencing Crutchfield. See Stephens v. State, 185 Ga. App. 546, 547 (3) (365 SE2d 136) (1988). Nor is there any evidence that the trial court impermissibly increased the sentence. See Curry, supra. Therefore, the trial court is affirmed.

Judgment affirmed.

Pope, P. J., and Beasley, J., concur.


author: Judge Harold R. Banke.

text:
    A98A0227.
    GILLIS et al. v. BUCHHEIT et al.
    (500 SE2d 38)
   Judge Harold R. Banke.

E. R. Gillis and Luilene N. Gillis (“Gillis”) sought a declaratory judgment and damages for trespass against adjacent property owners, Frank A. Buchheit and Barbara W. Buchheit (“Buchheit”). Gillis appeals the summary judgment awarded to Buchheit.

This case centers around a boundary line dispute between contiguous property owners. E. R. Gillis testified that in 1955, shortly before he agreed to the purchase of certain lots, he and George Clarke, Sr. agreed to establish a boundary line marked by blazing marks on a black gum and live oak tree and by setting three iron pipes and two concrete markers along the line. (Hereinafter, the “1955 line”) In 1956, Gillis bought lots 10, 10A, 11 and 11A from George S. Clarke and George S. Clarke, Jr. According to Gillis, at the time of the sale, Clarke, Sr. agreed to change the angle of the boundary line from 76 degrees to 86 degrees. The Clarkes continued to own the adjoining property. During the seven-year period after his purchase, in the current disputed area, Gillis filled in some marsh land to form a peninsula out to a point on a creek. On one occasion, Clarke, Sr. complained that Gillis had damaged a cedar tree on his property and asked Gillis to stay five feet from the 1955 line when filling the property. Gillis testified that the U. S. Army Corps of Engineers regularly inspected his filling activities but prohibited new filling after 1968. Both before and after Clarke, Sr.’s death in 1964, Gillis continued to maintain the filled area. According to Gillis’ undisputed testimony, Clarke, Jr. continued to recognize the 1955 line as the true boundary between their respective properties. Gillis testified that from 1956 to 1972, Clarke, Jr. never interfered with, objected to, or complained of his filling activities.

In 1972, when Buchheit purchased lots 12, 12A, 13, and 13A from Clarke, Jr., Buchheit did not attempt to find the boundary line between lots 11 and 11A and 12 and 12A. Nor did Buchheit hire a surveyor. Even after Buchheit bought the land, Gillis continued to maintain the filled area and from 1972 until 1995, Gillis stored heavy equipment on the filled area. During the next 23 years, Buchheit did not reside on the land but gradually constructed a boat-lift and a dock in the disputed area. E. R. Gillis testified that he and his wife permitted Buchheit to build the boat dock in the disputed area and “invited Mr. and Mrs. Buchheit to use our property at their convenience.” According to Luilene Gillis, “[w]e just felt like they knew that it was our property they were putting that [the boat dock] on.” In 1995, when intending to construct a house, Buchheit hired a surveyor to locate the boundary line. Based on this survey, Buchheit erected a chain link fence on land claimed by Gillis. Citing the 1995 survey, the deed from Clarke Jr., and a 1944 recorded plat, Buchheit asserted entitlement to an area encompassing the 1955 line and including the portion of land Gillis had filled.

The trial court rejected Gillis’ alternate theories of recovery: (1) that the boundary line had been established by acquiescence and recognition or (2) that Gillis obtained the property as a valid parol gift of land. Gillis appeals that adverse determination. Held:

1. The trial court erred in finding as a matter of law that the boundary line at issue had not been established by acquiescence under OCGA § 44-4-6 or by agreement. By law, “[acquiescence for seven years by acts or declarations of adjoining landowners shall establish a dividing line.” OCGA § 44-4-6. Where a boundary line is disputed, uncertain, or unascertained, it may be established (1) by acquiescence for seven years pursuant to OCGA § 44-4-6, or (2) by agreement if the agreement is accompanied by actual possession of the line. Cothran v. Burk, 234 Ga. 460, 461 (216 SE2d 319) (1975). However, in order to establish a boundary line under this Code section, the line must not be known or certain. Horn v. Preston, 217 Ga. 165, 167-168 (2) (121 SE2d 775) (1961). “ A line is uncertain or unascertained if its location on the ground is unknown even where the line is clearly described in the deeds [cit.], and even where the line is an original land lot line. [Cit.]’ ” Cothran, 234 Ga. at 461-462.

Here, E. R. Gillis testified without contradiction, that when he purchased the land from the Clarkes, it was mutually understood that the boundary line would be the 1955 line that he and Clarke, Sr. had marked and blazed a few months earlier. See Warwick v. Ocean Pond Fishing Club, 206 Ga. 680, 683 (58 SE2d 383) (1950). According to Gillis, both he and the Clarkes honored this line for more than seven years. Tietjen v. Dobson, 170 Ga. 123, 126-127 (3) (152 SE 222) (1930) (an oral agreement establishing a boundary line may be duly executed by acts or declarations such as by marking the line with monuments or blazes where the adjoining landowners consent).

Notwithstanding Buchheit’s contention to the contrary, whether the 1944 recorded plat established the boundary line is a disputed issue. Gillis’ expert, a registered land surveyor, testified that after reviewing the 1944 survey, it was his professional opinion that the plat did not indicate that the original survey ever set out any markers along the side lot lines or rear comers. In any event, even if the 1944 subdivision plat had specified the boundary line, such description would not be dispositive, if a subsequent line had been established by acquiescence or agreement. Warwick, 206 Ga. at 683. See Greenway v. Griffith, 225 Ga. 632, 636 (4) (170 SE2d 423) (1969). For these reasons, summary judgment must be reversed.

2. The trial court erred in finding as a matter of law that no material issue remained to be tried on whether Gillis held title based on a valid parol gift of land under OCGA § 23-2-132. To have acquired title in this manner, Gillis would have to prove: (1) an oral gift of land, (2) his possession of the land, (3) meritorious consideration, and (4) valuable improvements to the land made by him in reliance on that gift. Smith v. Lanier, 199 Ga. 255, 264 (34 SE2d 91) (1945).

Decided March 17, 1998

Reconsideration denied April 9, 1998

Donald E. Dyches, Jr., for appellants.

Ranitz, Mahoney, Coolidge & Mahoney, Thomas J. Mahoney, Jr., Mary K. Hogan, for appellees.

Here, Gillis testified that Clarke, Sr. promised him when he bought the property that it included the land up to the 1955 line. Gillis then took possession of and filled in the marshy area on his side of the 1955 line to create a peninsula out to a creek. The third element of “meritorious consideration” does not necessitate “valuable consideration” or that the donor actually receive something. Collins v. Gwinnett Bank &c. Co., 149 Ga. App. 658 (255 SE2d 122) (1979). Instead, Gillis’ asserted detrimental reliance may constitute sufficient consideration. Mankin v. Bryant, 206 Ga. 120, 143 (6) (56 SE2d 447) (1949). As to the fourth element, in reliance on the 1955 line, Gillis claimed that he expended valuable time and labor to fill the marsh and to render the point accessible and useful. See Davis v. Newton, 215 Ga. 58, 60 (4) (108 SE2d 809) (1959) (slight improvements which create permanent and substantial improvement to land may constitute valuable improvements). In these circumstances, we believe that a jury must also resolve whether Gillis’ alternative theory of ownership is applicable. Sharpton v. Givens, 209 Ga. 868 (1) (76 SE2d 806) (1953).

Judgment reversed.

Johnson and Smith, JJ, concur.

       Citing Beauchamp v. Knight, 261 Ga. 608, 610 (2) (409 SE2d 208) (1991), the Supreme Court transferred this case to this Court.

       E. R. Gillis gave his wife an undivided half-interest in the property in 1965.

       George S. Clarke, Jr. died in 1984.


text:
    A98A0063.
    HERNDON v. THE STATE.
    (499 SE2d 918)
   Pope, Presiding Judge.

Billy Joe Herndon was charged with rape, kidnapping, aggravated sodomy, aggravated assault, armed robbery, theft by taking, possession of a knife during the commission of a crime, driving under the influence, driving with a suspended or revoked license, and two counts of recidivism. In a May 1996 trial, a jury found Herndon guilty of theft by taking and driving under the influence, and the court withdrew the charges of driving with a suspended license. Because the jury was unable to reach a unanimous verdict, the judge declared a mistrial on the other counts and sentencing was delayed until all charges were fully adjudicated. In October 1996, Herndon was again tried and the jury convicted him of rape, kidnapping, aggravated sodomy, aggravated assault, and armed robbery. He was sentenced to three consecutive life sentences; two concurrent twenty-year sentences; and a twelve-month concurrent term. Here, Herndon appeals, arguing that the trial court erred in allowing evidence of the photographic array; that the court committed harmful error by allowing evidence that the victim was a virgin at the time of the attack; and that his trial counsel was ineffective in failing to object to the court’s adoption of a prior ruling regarding Herndon’s statement. For the following reasons, we reject Herndon’s arguments and affirm.

Construed most favorably to the verdict, the evidence showed that at about 8:30 p.m. on December 31, 1995, Herndon abducted the victim while she was waiting in her car in a convenience store parking lot for a friend. Herndon got into the victim’s car, threatened the victim with a knife, and told her to back up the car. Herndon forced the victim to drive to a remote area where he had her stop the car. He then held a knife to her throat; forced her to remove her clothes; forced her to perform oral sex; and raped and sodomized her. Herndon then forced the victim out of the car and threatened to cut her up. Herndon drove off and left the victim lying on the ground. The victim eventually found help and was taken to the hospital. The victim described her attacker to the doctor and later to police.

The victim’s father was called and en route to the hospital he saw Herndon driving the victim’s car. The victim’s father intentionally bumped the car, causing it to spin out of control. The victim’s father then ran to the car and held a knife to Herndon’s throat until police arrived. The victim’s father identified Herndon at trial.

When the police arrived, they noticed that Herndon appeared to be under the influence of alcohol and they arrested him. Later, after being read his rights, Herndon gave a statement, which was read at trial, in which he denied the attack. In the statement Herndon said that he had gotten the victim’s car from a friend about ten minutes before the wreck with the victim’s father.

The victim identified Herndon as her attacker in a photographic lineup and later identified Herndon’s tape recorded voice as that of her attacker. Again at trial, she identified Herndon as her attacker.

1. Herndon argues that the court erred in allowing into evidence the photographic lineup and testimony regarding it, because the lineup was impermissibly suggestive. Herndon also argues that there was a substantial likelihood of misidentification. We disagree with both contentions.

“[T]he test is whether the identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. The considerations in evaluating the likelihood of misidentification include: (a) the opportunity of the witness to view the criminal at the time of the crime, (b) the witness’ degree of attention, (c) the accuracy of the witness’ prior description of the criminal, (d) the level of certainty demonstrated by the witness at the identification, and (e) the length of time between the crime and the identification.” (Citations and punctuation omitted.) Smith v. State, 209 Ga. App. 540, 543 (4) (433 SE2d 694) (1993); Daniels v. State, 207 Ga. App. 689, 691 (4) (428 SE2d 820) (1993).

We first conclude that the identification procedure was not impermissibly suggestive. A review of the five photographs which were used in the lineup shows that the four individuals whose photographs were displayed with Herndon’s shared many of his general physical characteristics. And there is no indication that the procedures used in showing the victim the photographic display were improper. Moreover, even assuming arguendo that the photographic identification procedure was impermissibly suggestive, there was not a substantial likelihood of irreparable misidentification. The victim had an extended period during which she observed Herndon at close proximity and she remembered seeing him previously at the convenience store; she paid attention to his face and recognized him when she saw him; her description of him was unwavering and accurate; she showed no hesitation in picking him out from the lineup; and, as Herndon concedes, very little time elapsed between the incident and subsequent identification. The court did not err in allowing the evidence.

2. Herndon argues that the trial court erred in allowing argument and testimony that the victim was a virgin before this assault. In his opening statement, the prosecutor stated that the victim had been a virgin at the time of the attack. Defense counsel objected and moved for a mistrial, but the trial court denied the motion. Later, during the State’s case, a doctor who examined the victim testified that he had determined that she had been a virgin before the attack. Again defense counsel objected and the court ruled that the victim’s prior sexual history was not relevant, except as it related to the doctor’s examination. Accordingly, the court sustained the objection to the testimony generally, but overruled the objection as to evidence of the victim’s prior sexual history which was relevant to the examination.

Here, Herndon argues that the court’s overruling of his objection to these statements was erroneous. He argues that the victim’s sexual history, or lack thereof, was not relevant to the charges and should have been excluded. Citing Jenkins v. State, 156 Ga. App. 387 (5) (274 SE2d 618) (1980), and Collins v. State, 171 Ga. App. 906, 910 (3) (321 SE2d 757) (1984), the State argues that evidence of the victim’s virginity was relevant to prove the extent of the injuries caused by the rape.

We agree with Herndon that evidence that the victim was a virgin — meaning that she had not had prior sexual relations — was inadmissible. See Veal v. State, 191 Ga. App. 445, 447 (4) (382 SE2d 131) (1989); see generally Johnson v. State, 146 Ga. App. 277 (246 SE2d 363) (1978); compare Villafranco v. State, 252 Ga. 188 (313 SE2d 469) (1984). To the extent that the court’s ruling during the prosecutor’s opening statement allowed statements about the victim’s virginity, it was erroneous. Similarly, statements regarding the victim’s virginity which the doctor testified were relevant to his examination of the victim were erroneously admitted. In reaching this conclusion, we recognize that language in Jenkins and Collins initially seems to support the State’s conclusion that this evidence was admissible. Nonetheless, in Collins the jury was instructed to disregard the evidence regarding the victim’s virginity. In Jenkins, this Court concluded that the doctor’s testimony to which the appellant objected was not concerned with previous sexual behavior of the victim (though he did state that she was a virgin), but with physical injuries she received during the commission of the rape. Nevertheless, to the extent that Jenkins ruled that the victim’s prior sexual history was admissible, it was erroneous and is hereby overruled. See generally Green v. State, 221 Ga. App. 436 (472 SE2d 1) (1996); Fetterolf v. State, 223 Ga. App. 744, 747 (7) (478 SE2d 889) (1996).

We agree with the trial court that any evidence of physical injuries a victim receives during the commission of a rape, including the condition of the hymen, is admissible. But to call a victim a “virgin” is to comment on her prior sexual history needlessly. Accordingly, the fact that a victim was a virgin prior to the attack is not admissible. Our holding is consistent with the intent of the Rape Shield Law, OCGA § 24-2-3: if there is no evidence of chastity, it need not be disproved. See Johnson v. State, 146 Ga. App. 277, 281.

Despite our conclusion that this evidence was erroneously admitted, “it is axiomatic that harm as well as error must be shown to authorize a reversal” and we find no harm in this case. Veal v. State, 191 Ga. App. at 447. The evidence against Herndon was overwhelming and it is highly probable that the error did not contribute to the verdict.

Herndon also argues that testimony regarding the condition of the victim’s hymen was erroneously admitted. Herndon failed to object on this basis at trial and has waived this argument.

3. Finally, Herndon claims that trial counsel was ineffective in failing to object to the adoption of the ruling in the previous trial concerning the Jackson-Denno hearing. We conclude that Herndon waived this argument by failing to raise it at the earliest practicable opportunity.

The judgment convicting Herndon of kidnapping, rape, aggravated sodomy, aggravated assault, and armed robbery was entered on October 25, 1996. Trial counsel filed a motion for new trial on November 12, 1996, but did not raise the ineffective assistance argument. The court denied the motion for new trial on March 11, 1997. On April 11, 1997, defendant’s trial counsel filed a notice of appeal with this Court. On April 14, 1997 the court entered an order finding Herndon indigent and waiving the costs of appeal. On May 13, 1997 this Court dismissed defendant’s notice of appeal for being untimely. On July 11, 1997, defendant, proceeding pro se, filed a motion for an out-of-time appeal and moved for the appointment of new appellate counsel. On July 15, 1997, the court appointed appellate counsel and in an order filed on July 16, the superior court granted the motion for out-of-time appeal, specifically stating: “[t]he defendant is given 30 days from the date of this order to perfect the appeal.” Appellate counsel filed a new notice of appeal on August 13, 1997.

In Ponder v. State, 260 Ga. 840 (400 SE2d 922) (1991), the Supreme Court held: “the grant of an out-of-time appeal constitutes permission to pursue appropriate post-conviction remedies, including a motion for new trial. It follows from that holding and from the requirement that a claim of ineffective assistance of counsel be determined by means of an evidentiary hearing at the earliest practicable moment, that a claim of ineffective assistance of counsel may not be asserted in an out-of-time appeal unless appellate counsel pursues a motion for new trial, subsequent to the grant of the out-of-time appeal, in which the issue is raised and resolved by means of an evidentiary hearing.” Id. at 841-842. In the context of the grant of an out-of-time appeal, this Court has concluded that “appellant’s earlier filing and the trial court’s denial of a new trial motion did not preclude appellate defense counsel from filing another new trial motion timely raising the inadequacy of counsel issue before filing the notice of an out-of-time appeal. [Cit.]” Wordu v. State, 216 Ga. App. 552, 554 (2) (455 SE2d 101) (1995). See also Maxwell v. State, 262 Ga. 541, 542 (3) (422 SE2d 543) (1995). Accordingly, “[a] claim of ineffective assistance of trial counsel may not be asserted in an out-of-time appeal unless the defendant’s new appellate counsel files a motion for new trial after the grant of the out-of-time appeal and raises the ineffectiveness claim.” Wordu, 216 Ga. App. at 554.

Judgment affirmed.

Andrews, C. J., McMurray, P. J., Birdsong, P. J., Johnson, Blackburn, Smith, Ruffin, Eldridge, JJ, and Senior Appellate Judge Harold R. Banke concur.

Decided April 9, 1998.

Steven V. Bennett, for appellant.

Tambra P. Colston, District Attorney, C. Stephen Cox, Martha P. Jacobs, Assistant District Attorneys, for appellee.

       Though he was found guilty of theft by taking, that charge merged with the armed robbery for sentencing purposes.


text:
    A98A0083.
    In the Interest of C. L. R., a child.
    (501 SE2d 296)
   Ruffin, Judge.

Appellant, the mother of C. L. R., appeals from the juvenile court’s orders terminating her parental rights to C. L. R. and placing her with her foster mother for adoption. The mother argues on appeal that there was insufficient evidence to support the termination order and that the juvenile court erred in not placing C. L. R. with the child’s paternal grandmother. For reasons which follow, we affirm.

1. “The standard of review on appeal from a termination of parental rights is whether, after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s right to custody should be terminated. [Cit.] On appeal, This Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the trial court’s factfinding and affirm unless the appellate standard is not met.’ [Cit.]” In the Interest of R. D. S. P., 230 Ga. App. 205 (495 SE2d 867) (1998).

“ ‘OCGA § 15-11-81 (a) provides a two-step procedure to be followed in considering the termination of parental rights. First, the court shall determine whether there is present clear and convincing evidence of parental misconduct or inability as provided by OCGA § 15-11-81 (b). Secondly, if there is clear and convincing evidence of such parental misconduct or inability, the court shall then consider whether termination of parental rights is in the best interest of the child.’ [Cit.]” In the Interest of K. J., 226 Ga. App. 303 (486 SE2d 899) (1997). “Parental misconduct or inability is found where (1) the child is deprived, (2) the lack of proper parental care or control by the parent in question is the cause of the child’s deprivation, (3) the cause of deprivation is likely to continue or will not likely be remedied, and (4) the continued deprivation will cause or is. likely to cause serious physical, mental, emotional, or moral harm to the child. OCGA § 15-11-81 (b) (4) (A).” In the Interest of J. B. A., 230 Ga. App. 181, 182 (495 SE2d 636) (1998).

In this case, the evidence shows that C. L. R.’s mother has a long history of criminal arrests and incarceration, both prior to and after

C. L. R.’s birth on April 25, 1994. In November 1990, the mother pleaded guilty to violating the Georgia Controlled Substances Act and was sentenced to seven years, two years to serve and the remainder on probation. She was later incarcerated from October 1991 until December 1991 for violating parole. The mother was jailed again in March 1992 for another parole violation. The mother was arrested on criminal trespass charges on December 1,1992 and again on November 9, 1993. In late December 1993, she was arrested on charges of fighting words and criminal trespass. Approximately six weeks before giving birth to C. L. R., the mother was arrested for felony shoplifting.

C. L. R. was placed in foster care on July 13, 1994. In August 1994, the mother was arrested and incarcerated for a parole violation and a forgery charge. In October 1994 the mother pleaded guilty to the forgery charge, and her probation on the 1990 drug conviction was revoked. She was sentenced to five years on the forgery conviction to run concurrent with the five remaining years on the drug conviction. Her release date is set for August 1999, at which time C. L. R. will be five years old.

During the mother’s incarceration prior to the termination hearing, she became violent. She admitted at the termination hearing that she has been disciplined four times during her current incarceration for fighting with officers and using obscene words. For example, on September 27, 1994, she attempted to strike detention officers of the Baldwin County Sheriff’s Office. She was charged with obstruction of an officer. Additionally, on October 4, 1994, she began yelling and screaming in her cell. She resisted and attempted to strike officers with a glass coffee carafe as they were escorting her to another location. Because she was a “problem inmate,” she was moved to the Putnam County Sheriff’s Office for a period of time.

In addition to the criminal conduct and incarceration, there is evidence that the mother has a history of drug abuse. Prior to C. L. R.’s birth, the mother’s parental rights in two other children were terminated, in part because of her addiction to and abuse of crack cocaine and alcohol. The mother admitted that she used crack cocaine during her pregnancy with C. L. R. C. L. R. exhibited physical signs, including tense muscles and developmental delays, that indicated her mother had used drugs during pregnancy which had affected C. L. R.

Other evidence produced at the termination hearing shows that C. L. R.’s mother is incapable and/or unwilling to care for her children. The mother’s two older children, T. D. R., born November 1, 1986, and S. A. R., born February 7, 1988, were found to be deprived and removed from her care because of her history of domestic violence, fighting in the community, and drug and alcohol abuse. Despite assistance by the Department of Family & Children Services (“DFCS”), the mother could not keep food in her home for T. D. R. and S. A. R. Her rights in T. D. R. and S. A. R. were terminated in August 1990 because she failed to abide by the court-ordered reunification plans, to maintain a stable home environment, to stop using drugs, to complete drug rehabilitation treatment, and to visit her children regularly.

With respect to C. L. R., the evidence revealed that the mother did bring the child to the Baldwin County Health Department on June 6, 1994, for a physical. Due to C. L. R.’s condition, including tremors, muscle stiffness and developmental delays, C. L. R. was scheduled to return for a checkup on June 30, 1994. However, the mother did not show at the appointed time, but arrived with C. L. R. in the late afternoon as the health department was closing. The mother was insistent that she had to leave immediately. The mother promised to return with C. L. R. at a later date for C. L. R. to receive necessary immunizations. However, the mother did not abide by her promise to return.

Between the time C. L. R. was placed in foster care on July 13, 1994 and the mother’s incarceration in August 1994, the mother was scheduled to have four visits with C. L. R. She failed to appear at two of these four visits. During her incarceration, the mother at first did not want to visit with C. L. R. because she was incarcerated. C. L. R. has had approximately seven visits with her mother in prison up to the time of the termination hearing.

The mother’s reunification plan was continued while she was incarcerated. Under the plan, she was required to complete parenting classes and maintain a bond with C. L. R. According to the mother’s DFCS caseworker, prior to the filing of the termination petition, the mother had not completed the parenting classes. The caseworker said that bonding, through C. L. R.’s visits with her mother in prison, had been difficult to establish, in part because of the mother’s poor behavior in prison which has caused her to be disciplined and the visits canceled. The caseworker noted that C. L. R.’s mother was to be released from prison after 18 months incarceration, but due to the mother’s problems with her behavior with peers as well as staff, she had to serve a full five years. Accordingly, this has delayed completion of the reunification plan.

(a) There is clear and convincing evidence that C. L. R. is deprived. OCGA § 15-11-81 (b) (4) (A) (i). A child is deprived if she “[i]s without proper parental care or control... or other care or control necessary for [her] physical, mental, or emotional health or morals.” OCGA § 15-11-2 (8) (A). Here, C. L. R. was taken from her mother’s custody in July 1994 and adjudicated deprived in a September 19, 1994 order. There is no evidence that this order was appealed. Therefore, the mother is bound by the finding of deprivation and the first factor is met. See In the Interest of E. C., 225 Ga. App. 12, 14-15 (482 SE2d 522) (1997).

Moreover, the evidence is clear and convincing that C. L. R. was deprived in 1994 due to the lack of proper parental care and control. OCGA §§ 15-11-81 (b) (4) (A) (ii); 15-11-2 (8) (A). Among the factors to be considered in determining whether the child is without “proper parental care or control” is the parent’s “[e]xcessive use of or history of chronic unrehabilitated abuse of intoxicating liquors or narcotic or dangerous drugs” that has rendered the parent incapable of adequately providing for the child. OCGA § 15-11-81 (b) (4) (B) (ii). Here, the mother’s chronic drug and alcohol use seriously impaired her ability to take care of her other two children, resulting in the termination of her rights in those children. Her drug use also harmed C. L. R., as the child’s growth and development was hindered by the mother’s admitted use of crack cocaine during her pregnancy with C. L. R.

The lack of proper parental care or control is also revealed through the mother’s convictions and incarceration which has had and will continue to have a “demonstrable negative effect on the quality of the parent-child relationship.” OCGA § 15-11-81 (b) (4) (B) (iii). The mother has been incarcerated since C. L. R. was approximately four months old and will not be released until C. L. R. is five years old. This imprisonment not only negatively impacts the mother’s relationship with her child, but has prevented the establishment of any meaningful parent-child relationship. The mother only saw C. L. R. seven times from August 1994 to May 17,1997, the date of the termination hearing. According to the DFCS caseworker, C. L. R. did not enjoy those visits with her mother. C. L. R. would not let the DFCS caseworker leave the room, and on several visits would not allow her mother to touch her. On several visits, C. L. R. would begin crying when she and the caseworker arrived at the prison. According to C. L. R.’s foster mother, C. L. R. had nightmares after her visits with her mother. In the caseworker’s opinion, C. L. R. does not recognize the mother as her mother.

The mother’s neglect and egregious conduct towards C. L. R. and the mother’s two other children is additional evidence of the lack of proper parental care or control. OCGA § 15-11-81 (b) (4) (B) (iv) and (v). The mother’s drug and alcohol abuse, her propensity towards violence and criminal conduct, her inability to provide food for her other two children, and her unwillingness to meet case reunification plan goals was so egregious and detrimental to the other children’s physical, mental and emotional health that she lost her parental rights in these children. Moreover, the mother’s use of crack cocaine up through the last week of her pregnancy with C. L. R. is clear evidence of the mother’s “alarming lack of concern for the safety and well-being of her [child].” In the Interest of T. B. R., 224 Ga. App. 470, 474 (1) (c) (480 SE2d 901) (1997). After C. L. R.’s birth, the mother showed little interest in taking care of C. L. R., given that she failed to bring the child to the health department for scheduled immunizations and checkups. All this evidence reveals the mother’s unwillingness or inability to care for her child to the child’s physical, mental and emotional detriment. See OCGA §§ 15-11-81 (b) (4) (B); 15-11-2 (8) (A).

(b) The mother’s incarceration, her drug habit, her crack cocaine use during C. L. R.’s pregnancy, and her neglectful attitude towards caring for C. L. R., without doubt, is the cause of C. L. R.’s deprivation. OCGA § 15-11-81 (b) (4) (A) (ii).

(c) C. L. R.’s deprivation is likely to continue if the mother’s rights are not terminated, given that her mother will be incarcerated at least until August 1999. See OCGA § 15-11-81 (b) (4) (A) (iii). While there is evidence that in the two to three months prior to the termination hearing the mother made progress by attending parenting classes and therapy sessions to cope with her past drug use, violent nature and stress, there is simply no evidence that after August 1999 she will be able to provide adequately for C. L. R. There is no indication that she will be able to obtain stable employment or a stable home environment. Rather, the mother’s past experiences with her other children, along with her incarceration, support the conclusion that the deprivation of C. L. R. will likely continue in the future.

(d) We also find clear and convincing evidence that the continued deprivation is likely to cause serious physical, emotional, mental or moral harm to C. L. R. OCGA § 15-11-81 (b) (4) (A) (iv). Until her release in August 1999, she will be totally unable to care for C. L. R. Accordingly, the deprivation will certainly continue until that point. Furthermore, the child’s visits with her mother in prison negatively affect the child, as evidenced by the facts that she cries when she arrives at the prison and has nightmares after the visits. It would also cause mental and emotional harm to C. L. R. to remove her from her foster mother, with whom she has bonded, and return her in 1999 to her mother, with whom she has little to no bond.

2. As there is clear and convincing evidence of parental misconduct and inability to care for C. L. R., we next determine whether it is in C. L. R.’s best interest to terminate her mother’s rights. OCGA § 15-11-81 (a). “The same evidence showing parental misconduct or inability may, and here does, establish this requirement.” (Punctuation omitted.) In the Interest of J. B. A., supra at 185. Additionally, the evidence at the termination hearing shows without doubt that C. L. R.’s foster mother, a teacher for 15 years, has provided a secure and stable home for the child, which C. L. R.’s biological mother was unable to provide. The foster mother has assisted in eradicating C. L. R.’s developmental delays. C. L. R. has bonded with the foster mother and calls her mother. There exists no similar bond between C. L. R. and her mother. Currently, C. L. R.’s physical, mental and emotional needs are being met while in the foster mother’s care. Accordingly, we conclude that it is clearly in the best interests of the child that the mother’s parental rights in C. L. R. be terminated. See In the Interest of J. B. A., supra; In re K. J., supra.

3. We reject the mother’s argument that the juvenile court erred in failing to consider placement of C. L. R. with the child’s paternal grandmother. OCGA § 15-11-90 (a) (1) provides that “[i]f, upon the entering of an order terminating the parental rights of a parent, there is no parent having parental rights, the court shall first attempt to place the child with the child’s extended family or with a person related to the child by blood or marriage. ... A placement shall be made under the terms of this paragraph only if such a placement is in the best interest of the child.” C. L. R.’s father’s rights were terminated prior to the termination of the mother’s rights. As there was no parent with parental rights, C. L. R. was to be placed with a relative, if it was in the child’s best interest.

First, we note that the juvenile court heard evidence regarding the option of placing the child with the paternal grandmother, and referenced this evidence in determining that it was in the best interest of C. L. R. to remain with the foster mother. Therefore, the mother’s claim that the juvenile court did not consider relative placement is without merit.

Furthermore, we conclude that the juvenile court did not err in finding that it was in the best interest of the child to be permanently placed with the foster mother. While the paternal grandmother received a favorable evaluation from DFCS and was willing to take custody of C. L. R., she was not even aware that she had a granddaughter until May 1996, when the termination petition was filed. The grandmother had only seen the child five times and C. L. R. had not bonded with her grandmother as she had with her foster mother. The DFCS caseworker concluded that it was in the best interest of C. L. R. that the foster mother, who had provided a stable home for C. L. R. and wished to adopt the child, be granted custody. “In light of this evidence, proof that the child would remain in a safe and stable foster home upon termination of the mother’s parental rights and evidence of the foster [mother’s] intent to adopt the child, we find no abuse of discretion in failing to place the child with a family member . . . upon termination of the mother’s parental rights. See OCGA § 15-11-90 (a) (2).” In the Interest of M. R., 213 Ga. App. 460, 467 (3) (444 SE2d 866) (1994).

Decided April 9, 1998.

Cassandra M. Ford, for appellant.

Thurbert E. Baker, Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Philip B. Spivey, Jon P. Carr, for appellee.

Judgment affirmed.

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


author: POPE, Presiding Judge. Beasley, Judge,

text:
    A98A0350.
    WHITEHEAD v. THE STATE.
    (499 SE2d 922)
   POPE, Presiding Judge.

For his invasion of a Burger King and his attack on its assistant manager, a jury convicted Rodney Ravon Whitehead of armed robbery, aggravated assault, and possession of a firearm during the commission of a crime. He appeals. We find the evidence sufficient to support the conviction. We must reverse, however, because the trial court improperly required defense counsel to tender into evidence a prior inconsistent statement, thereby depriving Whitehead of his right to final closing argument.

1. The evidence showed that Whitehead had worked with the victim, an assistant manager at the Burger King in question, for a month and knew Burger King’s procedures and schedules. During that time, the victim became familiar with Whitehead’s voice and physical attributes. The attack occurred three weeks after the assistant manager fired Whitehead for tardiness and absenteeism. As'the victim was opening the business around 5:00 a.m., she was accosted by two men whose faces were disguised by black ski masks. One of the men held a gun to the victim’s head and forced her into the restaurant’s office. The other man, later identified as Whitehead, quickly found the proper light switch, turned on the light, and demanded the victim open the safe. When she had trouble doing so, he told her, “aw, [expletive], you know you know how to open that safe.” At that point the assistant manager recognized Whitehead’s voice, as he had often used that expletive when referring to women. After the victim opened the safe and took the money inside, Whitehead forced her to the back of the store and, pointing to an unlabeled door, told his partner, “put her in the freezer.” During this time the assistant manager was able to view Whitehead and further recognized him by his physical build. Evidence in the case showed that the freezer to which Whitehead pointed was adjacent to another identical, unmarked cooler door. When the criminals left, the victim called police, told the responding officer that Whitehead was one of the assailants, and gave the officer Whitehead’s address. The officer went to that address and could not find Whitehead there. In his own defense, Whitehead testified he was at home sleeping when the robbery occurred.

This evidence was sufficient to allow a reasonable jury to find Whitehead guilty beyond a reasonable doubt of these charges. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The voice identification testimony, along with circumstantial evidence showing the invaders were familiar with the internal operations and layout of Burger Kang, allowed the jury to reach its conclusions. See Stirrat v. State, 226 Ga. App. 350, 351 (1) (486 SE2d 640) (1997).

2. The trial court erred, however, when it required Whitehead’s counsel to tender into evidence a document he used in his attempt to impeach the assistant manager’s testimony with a prior inconsistent statement. The assistant manager claimed she told the responding officer that the attackers had guns and that she recognized Whitehead’s voice. Defense counsel asked her to examine a copy of the written statement she first gave police, and she acknowledged the statement was hers. When Whitehead’s attorney pointed out that her written statement contained no mention of guns, the State objected on grounds that the document was not in evidence. The court sustained the objection, telling counsel, “If you want to go into the contents of a document, it doesn’t matter whether you’re doing it for impeachment or not, you’ve got to have it in evidence.” Whitehead’s attorney acquiesced, and the written statement was marked as an exhibit and admitted in evidence. Contrary to the dissent’s position, the fact that the trial court sustained the State’s objection was sufficient to preserve the error for appellate review, and Whitehead was not required to further object or take exception to the trial court’s ruling. “There is, of course, no longer any requirement in Georgia that counsel except to an adverse ruling by the trial court in order to preserve the issue for appeal. [Cits.]” Stone v. State, 177 Ga. App. 750, 752 (4) (341 SE2d 280) (1986). See also Ford v. State, 200 Ga. App. 376 (408 SE2d 166) (1991).

Whitehead correctly argues that he should not have been required to tender the document into evidence to elicit the impeaching prior inconsistent statement. The proper method for impeaching a witness with a prior inconsistent statement is codified in OCGA § 24-9-83. In Duckworth v. State, 268 Ga. 566, 568-569 (492 SE2d 201) (1997), the court held that statute “does not require that the prior inconsistent statement be admitted into evidence before it is used for impeachment purposes. Nor does the case law mandate the introduction of the prior written statement into evidence before questioning the witness. . . . [T]he purpose behind laying a foundation for impeachment is met by showing or reading the prior written statement to the witness before asking questions about it. . . .” (Paragraph indentions omitted.) Therefore, the trial court erred when it prohibited Whitehead from questioning the witness regarding a prior inconsistent statement contained in a document not admitted in evidence.

Although the trial court’s error could under different circumstances be considered harmless error, we find Whitehead has shown “presumptive harm” because, to pursue his attempt at impeaching the witness, he was required to introduce evidence and forfeit his right to open and conclude the closing argument. See OCGA § 17-8-71; Givens v. State, 264 Ga. 522, 523 (1) (448 SE2d 687) (1994); Hubbard v. State, 167 Ga. App. 32, 35 (7) (305 SE2d 849) (1983). The cross-examination of a witness does not constitute the introduction of evidence under OCGA § 17-8-71. Kennebrew v. State, 267 Ga. 400, 404 (4), n. 2 (480 SE2d 1) (1996). But here, the court erroneously required Whitehead to choose between effectively cross-examining the witness and giving up the final argument.

Although Whitehead did not object to the court’s declaration that the State would have the right to conclude, the question of waiver of error is not before us. If Whitehead had objected to the order of argument, as the dissent would require, that objection would have been properly overruled because Whitehead did introduce evidence, even though he did so pursuant to an erroneous ruling of the trial court. Rather, the issue is whether the court’s action in sustaining the state’s original objection harmed Whitehead because it deprived him of the “valuable” right to the final word. See Hubbard, 167 Ga. App. at 35. The evidence against Whitehead was strong, but not overwhelming. The case largely turned on the credibility of the victim, who did not see Whitehead’s face. Under the circumstances, we cannot find the presumption of harm to be overcome. See Givens, 264 Ga. at 523. Therefore, the convictions must be reversed and the case remanded for retrial.

3. As our holding in Division 2 requires reversal of the case, and we find that Whitehead raises no other errors likely to recur on retrial, we need not address the remaining enumerations.

Judgment reversed.

Blackburn, Ruffin and Eldridge, JJ, concur. Andrews, C. J., McMurray, P. J., and Beasley, J., dissent.

Beasley, Judge,

dissenting.

Although I concur in Division 1, which rules that the evidence was sufficient to support the verdict beyond a reasonable doubt, I do not agree that the loss of concluding argument constituted reversible error.

The reason is two-fold. First, defendant did not object. When defendant first sought to use the document without tendering it, he responded to the State’s objection by merely stating that it was for impeachment purposes and offered no authority for allowing such use without the document being admitted as evidence. Instead, he acquiesced in the court’s ruling (“Okay”) and tendered the document, which was admitted without objection.

Then, after defendant testified as his only witness and the State introduced no rebuttal evidence, and after the charge conference out of the jury’s presence, the court announced that “under the rules of procedure which govern a trial such as this one, the State has the opportunity to open and conclude closing arguments.” According to the Supreme Court of Georgia, “[t]he purpose in allowing an accused with no defense to have the opening and concluding argument is to allow his counsel every opportunity to persuade the jury that the State has failed to prove his guilt.” Defendant did not object to the trial court’s orchestration but instead proceeded to give his closing argument when the State waived the opening. No right to close was asserted after the State closed. Defendant did not complain of this in his motion for new trial either.

Failure to object on the ground that he was not required by law to admit the victim’s statement into evidence waived the error. The Supreme Court of Georgia ruled in Scott v. State, 243 Ga. 233, 234-235 (2) (253 SE2d 698) (1979): ‘When the court announced that the state would have opening and closing arguments, appellant made no objection, and enumerates the error for the first time on appeal. A party cannot during the trial ignore what he thinks to be an injustice, take his chances on a favorable verdict, and complain later. [Cit.] Out of this principle evolves the further premise that matters not objected to at trial cannot be raised for the first time on appeal. [Cit.]” This is precisely that situation.

Second, although the OCGA § 17-8-71 right to open and conclude, when defendant introduces no evidence other than his own testimony, is a valuable right, failure to afford this right does not require a new trial where the evidence of guilt is overwhelming. Scott, supra at 235; see Seyden v. State, 78 Ga. 105, 109 (4) (1886) (proof so strong it overcame presumption of harm); Johnson v. State, 238 Ga. 59 (230 SE2d 869) (1976) (highly probable that error did not contribute to verdict because evidence overwhelming); Matthews v. State, 268 Ga. 798, 803 (4) (493 SE2d 136) (1971) (“it is fundamental that harm as well as error must be shown for reversal”); Seavers v. State, 208 Ga. App. 711, 712 (3) (431 SE2d 717) (1993) (even if defendant should have had closing, overwhelming evidence of guilt made error harmless). That is the case here.

Decided April 9, 1998

Warren A. Sellers, for appellant.

Rodney R. Whitehead, pro se.

Robert E. Keller, District Attorney, Todd E. Naugle, Assistant District Attorney, for appellee.

The victim recognized the defendant during the robbery and named him immediately in her call to police, the police went to the apartment he shared with his mother but he was absent, the victim confirmed her identification by hearing him speak several hours later at the police station, and the sole defense was that the victim was mistaken and Whitehead was at home sleeping at the time of the robbery. The victim had worked together with defendant for about a month before she fired him three weeks before the robbery. Defendant knew the restaurant’s standard opening procedure which was begun by the victim on the morning of the robbery because he had worked that shift. During the robbery he used the same derogatory term as a substitute for “women” which the victim testified he had “always” used at work.

The fact that the defendant did not have the last word with the jury could not have affected the verdict to his detriment.

I am authorized to state that Chief Judge Andrews and Presiding Judge McMurray join in this dissent.

       Compare Scott v. State, 243 Ga. 233, 234 (2) (253 SE2d 698) (1979) (failure to object to court’s ruling on order of argument constitutes waiver).

       Compare Kennebrew v. State, 267 Ga. 400, 404 (4) (480 SE2d 1) (1996) (defendant who presents evidence under guise of cross-examination loses right to open and close); Warnock v. State, 195 Ga. App. 537, 538 (2) (394 SE2d 382) (1990) (prior statement used on cross-examination to impeach, admitted in evidence, right to open and close waived).

        Yeomans v. State, 229 Ga. 488, 492 (4) (192 SE2d 362) (1972).