text:
    A99A1908.
    In the Interest of J. S. G. et al., children.
    (529 SE2d 141)
   Smith, Judge.

The mother of J. S. G., H. L. G., and T. L. R. appeals from the order of the Juvenile Court of Bartow County terminating her parental rights in the children. As we understand her three enumerations of error, they challenge the findings of the trial court on the basis that insufficient evidence was presented to support them. We conclude that although the mother appears to have made some progress, sufficient evidence was presented to support the trial court’s findings that the children’s deprivation was likely to continue, that the continued deprivation would be likely to cause serious physical, mental, emotional, or moral harm to the children, and that termination of the mother’s rights was in the best interests of the children. We therefore affirm the judgment terminating the mother’s rights.

The decision to terminate parental rights is a two-step process. The court first determines whether clear and convincing evidence exists of parental misconduct or inability. If such evidence exists, the court then considers whether termination is in the best interests of the children, considering their physical, mental, emotional, and moral conditions and needs, including the need for a secure and stable home. OCGA § 15-11-81 (a); In the Interest of A. M. V., 222 Ga. App. 528, 529 (474 SE2d 723) (1996). Parental misconduct or inability exists when: (1) the children are deprived; (2) lack of proper parental care or control is the cause of the deprivation; (3) the deprivation is likely to continue or will not be remedied; and (4) continued deprivation is likely to cause the children serious physical, mental, emotional, or moral harm. OCGA § 15-11-81 (b) (4) (A); A. M. V., supra.

In reviewing a decision to terminate parental rights, this court must view the evidence in a light most favorable to the appellee. A. M. V., supra. The standard of review on appeal is whether, after reviewing the evidence in this light, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s right to custody should be terminated. We must defer to the trial court’s factfinding and affirm unless this standard is not met. In the Interest of J. O. L., 235 Ga. App. 856 (510 SE2d 613) (1998). In this case, the appellate standard was met.

1. We find no merit in the mother’s contention that the juvenile court erred in concluding that the children were deprived because of the mother’s lack of proper parental care or control and that the deprivation was likely to continue. No question exists about the determination that the children were deprived within the meaning of OCGA § 15-11-2, because the deprivation order entered in 1997 and the order extending it in 1998 were not appealed. Indeed, the extension order was still in effect when the termination petition was filed.

Moreover, evidence was presented at the termination hearings that the mother had not complied with certain essential elements of the case plan developed by the Department of Family & Children Services (DFACS) for reunifying her with her children. The children first came to the attention of DFACS in April 1997, after T. L .R., who was three and a half years old at the time, wandered off while unattended and was attacked by a dog. T. L. R.’s injuries were severe, and she has endured many hospitalizations and surgeries and faces more in the future. It was reported to DFACS that law enforcement officers and other adults had previously returned the children to their home when they were found wandering outside, unattended. The two older children also had a number of unexcused school absences.

A case plan was developed for the mother, and we recognize that she did accomplish several of the goals in the case plan: she completed a series of parenting classes, obtained her GED, remained free of illegal drugs, visited her children fairly regularly, and permitted DFACS access to her home. But the case plan also required her to provide a safe, stable home for the children, obtain and maintain stable employment, follow the recommendations made in a psychological evaluation, resolve certain legal issues, and pay child support.

In addition, the juvenile court had warned the mother in an order entered after involvement by a citizens review panel that the children could not be returned to her if she was living with and dependent upon an illegal alien subject to deportation at any time. But when the termination petition was filed, the mother had not yet established her own stable home or stable employment. She was unemployed and still living with an illegal alien upon whom she was financially dependent, against the recommendations in the psychological evaluation and despite the warning of the court. She also had not yet resolved criminal charges pending against her resulting from the incident in which her youngest child, T. L. R., was attacked by the dog. The mother also had not paid child support as ordered and was in arrears.

Although she made some progress on her goals after the termination petition was filed, including moving into her own apartment, paying some additional child support, and obtaining weekend night employment at a bar, she still did not have stable employment and remained in arrears on child support. Most of her previously unfulfilled goals remained unfulfilled, and the evidence supported a finding that the children remained deprived.

The psychological evaluations make clear that the cause of the children’s deprivation is the mother’s inability to parent them properly. Both the initial evaluation and one performed about a year later agreed that the mother displayed a personality disorder that creates an unhealthy dependence on men and causes her to avoid problems instead of dealing with them. This personality disorder is difficult to change and renders her unable to care properly for her children. In the opinion of one psychologist, the steps the mother had taken were positive; the other expert, however, viewed these same steps as negligible because the mother took them at the last possible moment. This indicated to the expert that the mother was still dealing with problems by avoiding them, even though in this case her problems had stakes so high that she would lose her children.

In deciding whether the children’s deprivation was likely to continue, the juvenile court was authorized to consider not only the experts’ testimony but also the mother’s past conduct. In the Interest of J. M. C., 201 Ga. App. 173, 174 (410 SE2d 368) (1991). The evidence presented amply supported the juvenile court’s finding that the children’s deprivation was likely to continue.

2. The experts also disagreed about the mother’s prognosis. Their estimates regarding the time frame in which the children might be able to return to their mother’s custody, assuming she faithfully attended therapy sessions and complied with all therapeutic suggestions for change, ranged from nine to twelve months to between two and three years. But the children’s treating therapist testified that, in her opinion, the children were at a critical stage in their development, particularly the boy, J. S. G. She testified that the children needed permanence as soon as possible, preferably within three months, but within six months at the outside limit. It was her opinion that 12 months was definitely too long to wait.

In addition, the younger daughter, T. L. R., still has severe medical problems resulting from the dog attack and faces more hospitalizations and surgeries. In the opinion of her therapist, she requires far more attention than most children, both physically and emotionally. In the past, the mother was unreliable about visiting T. L. R. in the hospital or accompanying her to medical appointments. The mother also has had difficulty nurturing the children, and T. L. R. needs a great deal of support, hand-holding, affection, and attention. The child’s therapist was “just real concerned about [the mother’s] ability to attend to the very critical needs” of this child.

The evidence presented amply supports the juvenile court’s finding that the .mother’s personality disorder causes her to be “unable or unwilling to place [the children’s] needs above her own,” as well as its conclusion that the children’s continued deprivation would be likely to cause serious physical, mental, emotional, or moral harm to them.

3. In deciding that termination of the mother’s parental rights was in the children’s best interests, the court necessarily concerned itself with their crucial need for stability emphasized by their therapist and the DFACS caseworkers. These children have known little stability in their short lives. The three children have three different fathers, and indeed the father of the boy is unknown. They have bonded well with their foster parents. They are still adoptable, but they are fast approaching an age when they would not be considered adoptable.

Evidence was presented that the mother is currently unable to parent the children, and her prognosis is at best questionable. In determining the future of these children, a juvenile court cannot rely heavily on promises for the future that appear to be contrary to negative past fact. In the Interest of R. N., 224 Ga. App. 202, 205 (2) (480 SE2d 243) (1997). The juvenile court concluded that termination of the mother’s parental rights was in the best interests of these children. Id. That conclusion was supported by the evidence in this case, including the same factors that show the mother’s inability.

Judgment affirmed.

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

Decided January 25, 2000 —

Reconsideration denied February 16,2000

White & Choate, Harold J. Choate III, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Velma C. Tilley, Assistant Attorneys General, for appellee.

       The apartment is government-subsidized. The mother pays no rent and receives a supplement for utilities.


source: Caselaw Access Project

author: Andrews, Presiding Judge.

license: Public Domain

text:
    A99A2069.
    CERAMIC & METAL COATINGS CORPORATION v. HIZER et al.
    (529 SE2d 160)
   Andrews, Presiding Judge.

Ceramic & Metal Coatings Corporation (CMC) appeals from the trial court’s order denying its request for injunctive relief and granting defendant James Hizer’s motion for partial summary judgment. The issue on appeal is whether the trial court correctly determined that the restrictive covenant not to compete contained in Hizer’s employment agreement with CMC was overbroad and therefore unenforceable. Because we agree that the noncompete clause was overbroad as to territory and scope of activities, we affirm.

This case arose when Hizer quit his job as a sales representative at CMC. Hizer had worked for the company, which makes centrifugal pumps, for 26 years. When efforts to renegotiate the terms of his employment failed, Hizer quit the company and set up a competing business. CMC filed suit for injunctive relief and damages. The trial court denied CMC’s motion for a temporary restraining order and granted Hizer’s motion for summary judgment, finding the restrictive covenant was overbroad and, therefore, unenforceable.

The restrictive covenant at issue provided as follows:

Employee expressly agrees that he will not, during the term of this Agreement, and for a period of two years immediately following termination of this Agreement for any reason whatsoever, directly or indirectly, for himself or on behalf of, or in conjunction with, any other person, persons, company, partnership or corporation:
A. Call upon any customer, former customer, or entity solicited as a customer, for the purpose of soliciting or selling any products or services which are produced and sold by Company within the territory specified in this Agreement (or any territory added during the course of the Agreement);
B. Attempt to divert, solicit, or otherwise affect the relationship of the Company with any customer, former customer, or person identified as a prospective customer within the territory which is the subject of this Agreement (or any territory • added during the course of the Agreement);
C. Divulge, publish or otherwise misuse any list of present, former or prospective customers, trade secrets or other confidential or specialized information or data learned, acquired or coming into his knowledge pursuant to his employment hereunder;
D. Own, manage, operate, control, be employed by, participate in, or be connected in any manner with any business similar to the type of business conducted by Company at the time of termination of this Agreement, anywhere within the territory identified herein (or any territory added during the course of the Agreement);
E. Induce or attempt to induce any person affiliated with the Company in any way to terminate such relationship for any reason or purpose whatsoever, specifically including hiring or attempting to hire such individual as an employee or a representative for any competing concern.

Georgia courts have traditionally applied close scrutiny to employment contracts containing restrictive covenants and have upheld them only when the covenant is strictly limited in time, territorial effect, and activities prohibited. Beckman v. Cox Broadcasting Corp., 250 Ga. 127, 129 (296 SE2d 566) (1982).

While a contract in general restraint of trade or which tends to lessen competition is against public policy and is void (1983 Ga. Const., Art. Ill, Sec. VI, Par. V (c); OCGA § 13-8-2), a restrictive covenant contained in an employment contract is considered to be in partial restraint of trade and will be upheld if the restraint imposed is not unreasonable, is founded on a valuable consideration, and is reasonably necessary to protect the interest of the party in whose favor it is imposed, and does not unduly prejudice the interests of the public. Whether the restraint imposed by the employment contract is reasonable is a question of law for determination by the court, which considers the nature and extent of the trade or business, the situation of the parties, and all the other circumstances. A three-element test of duration, territorial coverage, and scope of activity has evolved as a helpful tool in examining the reasonableness of the particular factual setting to which it is applied.

(Citations and punctuation omitted.) W. R. Grace & Co. v. Mouyal, 262 Ga. 464, 465 (1) (422 SE2d 529) (1992).

Applying this three-element test to the agreement before us, we find two clauses of the contract are unreasonably overbroad.

1. The covenant is overbroad in terms of territorial coverage. CMC claims that the territory referred to in the agreement is all of Georgia and Florida. But, the undisputed evidence is that Hizer sold to customers in only five counties in Florida and no more than three counties in Georgia. Although this Court will accept as prima facie valid a covenant which restricts the employee from doing business in the territory in which he was employed, the Court “will not accept as prima facie valid a covenant related to the territory where the employer does business where the only justification is that the employer wants to avoid competition by the employee in that area.” (Punctuation omitted.) Rollins Protective Svcs. Co. v. Palermo, 249 Ga. 138, 140 (287 SE2d 546) (1982). Moreover,

the prohibition against post-employment solicitation of any customer of the employer located in a specific geographic area is an unreasonable and overbroad attempt to protect the employer’s interest in preventing the employee from exploiting the personal relationship the employee has enjoyed with the employer’s customers.

(Emphasis in original.) W. R. Grace, supra at 466-467.

Also, because of the language referring to “any territory added during the course of the Agreement,” Hizer could not determine with any certainty at the time he signed the contract the extent of the prohibition. Britt v. Davis, 239 Ga. 747, 749 (238 SE2d 881) (1977); Orkin Exterminating Co. v. Pelfrey, 237 Ga. 284, 285 (227 SE2d 251) (1976); Durham v. Stand-By Labor &c., 230 Ga. 558, 562 (198 SE2d 145) (1973). This Court has held that “a territorial limitation not determinable until the time of the employee’s termination invalidates the provision and the entire agreement.” Jarrett v. Hamilton, 179 Ga. App. 422, 424-425 (346 SE2d 875) (1986).

2. The covenant is also overbroad in the scope of activity prohibited. The covenant provides that Hizer may not

[o]wn, manage, operate, control, be employed by, participate in, or be connected in any manner with any business similar to the type of business conducted by Company at the time of termination of this Agreement, anywhere within the territory identified herein (or any territory added during the course of the Agreement).

Decided January 31, 2000 —

Reconsideration denied February 16, 2000

This imposes a greater limitation on the employee than is necessary because it is not tailored to the job Hizer performed for CMC; instead, he is prohibited from being connected in any way with a similar business. As a result, this restriction is broader than necessary to protect CMC. Puritan/Churchill Chem. Co. v. Eubank, 245 Ga. 334, 335 (265 SE2d 16) (1980); Browning v. Orr, 242 Ga. 380, 381 (249 SE2d 65) (1978); American Gen. Life &c. Ins. Co. v. Fisher, 208 Ga. App. 282 (430 SE2d 166) (1993); Jarrett, supra at 424.

3. Further, the severability clause in the contract does not save it. This Court has rejected the “blue pencil theory of severability” with regard to employment contracts, and we will not sever a broader more restrictive provision so as to leave the narrower valid one. Browning, supra at 381. This is true whether or not there is a sever-ability clause in the contract. Puritan/Churchill, supra at 335; Richard P. Rita Personnel &c. v. Kot, 229 Ga. 314 (191 SE2d 79) (1972).

4. CMC also argues that the trial court erred in treating this as an employment agreement between a company and its employee when it was an agreement between a closely held corporation and its shareholder/employee. We disagree. Although Hizer did buy stock in the closely held corporation during his employment, he did not own any stock when he signed this agreement. Therefore, the trial court correctly determined that this agreement was not one involving partnerships or their equivalents and was not ancillary to the sale of a business.

5. CMC claims that even if the restrictive covenant is too broad, the trial court erred in not upholding Section 6, the nondisclosure clause. But, CMC points to no evidence from which this Court could determine that Hizer violated the nondisclosure provision.

In its order, the trial court states that it relied on the arguments presented at the hearing; however, no hearing transcript was filed. Therefore, the only evidence before us is Hizer’s deposition testimony in which he consistently denies violating any of the nondisclosure provisions, although he freely admits that he violated the covenant not to compete. Therefore, CMC has not shown any harm caused by the trial court’s refusal to consider the nondisclosure provision as separate from the noncompete provision.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

Parks, Chesin & Miller, Allan L. Parks, Jr., Mary A. Walser, for appellant.

William G. Leonard, for appellees.


author: Smith, Judge.

text:
    A99A1649.
    SEED et al. v. SMITH & WOODS MANAGEMENT CORPORATION.
    (530 SE2d 29)
   Smith, Judge.

Vickie Ruth Seed and her husband, James S. Seed, Jr., appeal in this premises liability case from the trial court’s order granting summary judgment to Smith & Woods Management Corporation, which managed the wholesale food outlet where Mrs. Seed fell. Mrs. Seed contends the trial court erred in concluding that she failed to establish superior knowledge on the part of Smith & Woods and in excluding portions of her affidavit. Mr. Seed, whose claim for loss of consortium was dependent upon his wife’s claim, contends that because the trial court erred in concluding that Mrs. Seed’s claim was not viable, it was also error to grant summary judgment against him. We find that portions of Mrs. Seed’s affidavit were inadmissible hearsay and that the Seeds failed to establish superior knowledge on the part of Smith & Woods. We therefore affirm the trial court’s judgment.

To prevail, Mrs. Seed (hereinafter “Seed”) must prove: (1) that the store had actual or constructive knowledge of the hazard, and (2) that she lacked knowledge of the hazard despite exercising ordinary care. Robinson v. Kroger Co., 268 Ga. 735, 736 (1) (493 SE2d 403) (1997). A defendant may be granted summary judgment in a slip and fall case if it meets its burden of showing that the record demonstrates an absence of evidence to support at least one essential element of the plaintiff’s case. Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (4) (405 SE2d 474) (1991). In Robinson, the Supreme Court focused on the second prong of the cause of action, the plaintiff’s lack of knowledge. The crux of this case, however, is not the injured party’s knowledge of the foreign substance, but whether the store had constructive knowledge.

1. Seed has no personal knowledge of why she fell. Based upon the store manager’s statement to her after her fall that he found a grape on the floor, she claims she fell on a grape in front of the tomato display. She concedes that the store had no actual knowledge of the allegedly hazardous condition. Constructive knowledge may be shown in two ways: (1) by showing that a store employee was in the immediate vicinity and had an opportunity to correct the hazardous condition before the fall, or (2) by showing that the substance was on the floor for a sufficient length of time for knowledge of the hazard to be imputed to the proprietor. Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). Seed does not allege that any store employees were in the vicinity when she fell. The store’s assistant manager stated in an affidavit that he conducted an hourly inspection of the floors and saw no foreign substance. Seed contends that although she has no actual knowledge of how long the grape was there, it must have been there a long time because puddles of water were on the floor in other parts of the same aisle. Although these puddles had nothing to do with her fall, she argues that they indicate general inattention to the floor.

Even assuming this argument is valid in theory, it is inapposite here because Seed herself saw nothing on the floor, either before or after her fall. To establish the presence of this water, she relies upon the words of an unnamed and otherwise unidentified couple who allegedly told the manager there were spills of water all over the floor in the produce aisle that needed to be cleaned up. She claims this couple’s words should have been considered because they fall under the necessity exception to the hearsay rule.

This is not the law. An alleged statement by an unidentified witness is hearsay and inadmissible. “Since the alleged utterer is unknown, it cannot be shown that the statements qualify as being free from all suspicion of device or afterthought.” (Punctuation omitted.) Hardee’s Food Systems v. Green, 232 Ga. App.. 864, 866 (1) (502 SE2d 738) (1998). Moreover, the statement by this unidentified couple is not part of the res gestae, as urged by Seed. Johnston v. Grand Union Co., 189 Ga. App. 270, 271 (375 SE2d 249) (1988).

Each case concerning the application of the res gestae exception to the hearsay rule must turn on its own circumstances, and the admissibility of such testimony is left to the sound discretion of the trial judge. The trial judge in this case did not abuse its discretion. . . . [T]he putting forward of some unidentified, unspecific person . . . , who allegedly made certain remarks . . . and as to whom there is no showing the person can be brought forth at trial or even located, or in fact exists, is not enough to raise a genuine issue of material fact controverting the defendant’s positive testimony that there was no defect of which it had actual or constructive superior knowledge. The reason for this is obvious: evidence imputing superior knowledge only at the suggestion of a statement allegedly made by a mystery person is completely unreliable. It is the very essence of hearsay.

Decided February 16, 2000.

Martin M. del Mazo, for appellants.

Webb, Carlock, Copeland, Semler & Stair, Marvin D. Dikeman, Jerome B. McNally, for appellee.

(Citations and punctuation omitted.) Id. at 271-272 (1).

In some cases, when the statement of an unidentified person has been admitted as part of the res gestae, the statement was made by someone who, although unidentified, was clearly an employee or agent of the proprietor. See, e.g., Quiktrip Corp. v. Childs, 220 Ga. App. 463, 465-466 (3) (469 SE2d 763) (1996). That is not the situation here, and the trial court did not err in ruling inadmissible those portions of Seed’s affidavit relating to the hearsay statements of the unidentified couple.

2. We need not address Seed’s contention that the trial court erred in deciding that her affidavit was vague or contradictory, because without the statement of the unidentified couple, Seed cannot show that the store had constructive knowledge of any hazard, and an essential element of her case fails. It follows that Mr. Seed’s claim for loss of consortium fails as well. Sewell v. Dixie Region Sports Car Club &c., 215 Ga. App. 611, 613 (2) (451 SE2d 489) (1994). The trial court therefore did not err in granting summary judgment to the store. Lau’s Corp., supra.

Judgment affirmed.

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

       Although the Johnston case is physical precedent only, it has been cited several times with approval. See, e.g., Blue Cross &c. v. Kell, 227 Ga. App. 266, 271 (3) (488 SE2d 735) (1997); Hagan v. Goody’s Family Clothing, 227 Ga. App. 585, 586 (490 SE2d 107) (1997).


author: Miller, Judge.

text:
    A99A1680.
    MOTON v. THE STATE.
    (530 SE2d 31)
   Miller, Judge.

Indicted as a recidivist, Orville I. Moton was tried before a jury and found guilty of twice violating the Georgia Controlled Substances Act by selling cocaine to a confidential informant. He appeals from the judgment of conviction and sentences entered by the trial court on the jury’s verdicts. Moton enumerates as error the sufficiency of the evidence, the admission of extrinsic acts evidence, and the life sentences imposed by the trial court. We affirm his conviction but remand for resentencing.

1. Moton’s third enumeration urges the general grounds. Viewed in the light most favorable to the jury’s verdict, the evidence revealed the following:

Jimmy Ferguson, the so-called confidential informant, testified he twice made controlled buys of cocaine from Moton. On February 14, 1997, Ferguson went to Moton’s residence and told Moton what he wanted. Moton went to a back room and “then came back and laid the drugs on the table. [Ferguson] picked up the drugs and gave [Moton] the money, and . . . left.” On February 24, 1997, after first being searched by investigators, Ferguson returned to Moton’s residence and purchased $50 worth of rock cocaine from him.

“The testimony of a single witness is generally sufficient to establish a fact. . . ,” The in-court identification of Moton as the seller is sufficient under the standard of Jackson v. Virginia to authorize the jury’s verdicts that Moton is guilty, beyond a reasonable doubt, of selling cocaine as alleged in the indictment. The fact that the State’s main witness was a drug user presented an issue of credibility, a matter exclusively for the jury. That circumstance does not deprive Ferguson’s testimony of its probative value.

2. On September 24, 1998, two weeks before Moton’s first trial, Ferguson’s pet Doberman was beaten so severely the animal had to be put to sleep. Moton moved in limine to exclude all reference to any part he may have played in the death of Ferguson’s dog. This motion was denied, and Henry Lynn Searcy was allowed to testify that Moton summoned him and “asked me if I was familiar with the case Jimmy Ferguson had against him and how would I [Searcy] feel about killing a dog.” Moton “pointed out [to Searcy] where the dog was tied,” and informed Searcy the dog belonged to Ferguson and confirmed “that’s the dog he wanted [Searcy] to kill.” Searcy enlisted Fred Larkin, who took a mallet and “commenced to beating the dog until . . . there was no sound.” Searcy understood the brutal killing was intended as a warning.

Moton’s second enumeration of error argues this evidence of a separate crime is legally irrelevant and served only to prejudice the minds of the jury against him. We disagree.

The legitimate purpose which justifies Searcy’s testimony implicating Moton in a criminal attempt to intimidate a witness against him in a pending criminal trial “is that it was evidence of a criminal act by the defendant, constituting an admission by conduct, intended to obstruct justice or avoid punishment for the crime on trial.” We find no error in the trial court’s implicit determination that proof of Moton’s intimidation of a witness was more probative than prejudicial.

3. The trial court sentenced Moton to concurrent life sentences. In two related enumerations, Moton contends a life sentence is unauthorized.

(a) Moton first contends the only notice he ever received that the State intended to introduce prior acts came from the State’s Notice of Similar Acts. The record demonstrates otherwise.

If a life sentence is to be imposed under OCGA § 16-13-30 (d), the State must notify the accused of any conviction it intends to use in aggravation of punishment pursuant to OCGA § 17-10-2, and a notice of intent to present similar transaction evidence, standing alone, does not fulfill the State’s obligation to give notice of intent to use a prior conviction in aggravation of punishment.

Count 3 of the indictment is clearly captioned as a “RECIDIVIST COUNT,” and expressly mentions defendant’s 1990 conviction in Ben Hill Superior Court for the sale of cocaine. The State also notified defendant of its intent to use his prior conviction for the sale of cocaine “in aggravation of punishment” through its response to reciprocal criminal discovery. Thus, the fact that notice was given appears clear and not cloudy in this case.

(b) Although Moton was not found guilty until January 29,1999, and not sentenced until February 9,1999, the crimes were committed in February 1997. Effective July 1, 1996, OCGA § 16-13-30 (d) was amended to make a life sentence discretionary and no longer mandatory. Defendant’s final contention is that the trial court erred in concluding a life sentence was still mandatory. We agree.

Generally, “a crime must be construed and punished according to the law existing at the time of the commission thereof. . . .”

It is the settled law of this State that where a crime is committed on a certain daté, the penalty which attached to the crime on that date is the penalty extracted by our law. The . . . subsequent reduction of the penalty [applies] only to cases arising after the enactment thereof. ... It was [therefore] mandatory for the trial court to impose the sentence provided for by the law in force at the time of the commission of the crime.*

In February 1997, the penalty in force under then-existing OCGA § 16-13-30 (d) for a second or subsequent violation of OCGA § 16-13-30 (b) was imprisonment for not less than ten years nor more than 40 years, or life imprisonment. The trial court erred in imposing mandatory life sentences for crimes committed in 1997, that is, after the legislative enactment making a life sentence discretionary. We vacate these life sentences and remand the case for resentencing in the exercise of the trial court’s enlightened discretion.

Decided February 16, 2000.

C. Victor Long, for appellant.

Patrick J. McDonough, District Attorney, Kathryn O. Fallin, Assistant District Attorney, for appellee.

Judgment of conviction affirmed. Sentence vacated and case remanded.

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

       OCGA § 24-4-8.

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

        James v. State, 233 Ga. App. 516, 519 (2) (504 SE2d 533) (1998); Gantt v. State, 229 Ga. App. 207, 208-209 (2) (493 SE2d 608) (1997); Gay v. State, 221 Ga. App. 263, 265-266 (2) (471 SE2d 49) (1996).

        Moore v. State, 219 Ga. App. 818, 819 (467 SE2d 5) (1996).

       (Citation omitted.) Fugitt v. State, 256 Ga. 292, 294 (1) (a) (348 SE2d 451) (1986).

       See Sisson v. State, 232 Ga. App. 61, 66 (3) (b) (499 SE2d 422) (1998).

        Armstrong v. State, 264 Ga. 237, 238 (1), (2) (442 SE2d 759) (1994).

        Woods v. State, 224 Ga. App. 52, 57-58 (10) (479 SE2d 414) (1996); Moss v. State, 206 Ga. App. 310, 312 (5) (425 SE2d 386) (1992); compare Gates v. State, 229 Ga. 796, 797 (4) (194 SE2d 412) (1972).

        Woods v. State, supra, 224 Ga. App. at 57 (10), n. 2.

       OCGA § 16-1-9.

        Barton v. State, 81 Ga. App. 810, 814 (3) (60 SE2d 173) (1950).

       OCGA § 16-13-30 (d).


text:
    A99A2123.
    HOLY FELLOWSHIP CHURCH OF GOD IN CHRIST v. FIRST COMMUNITY BANK OF HENRY COUNTY.
    (530 SE2d 24)
   Smith, Judge.

The only issue submitted for review in this case is whether the trial court erred in dismissing the notice of appeal filed by the Holy Fellowship Church of God in Christ. Because we find that dismissal was not proper, we reverse.

On January 30, 1998, the church filed suit seeking to cancel a deed under power of sale taken by the First Community Bank of Henry County. As part of discovery, the church deposed the bank’s president, Charles Blackmon, in September 1998. The church filed the original of Blackmon’s deposition in open court on October 5, 1998, at 9:50 a.m. Meanwhile, as the bank sought to foreclose against the church’s property, the church amended its original complaint twice. The bank moved to dismiss the amended complaint and sought the imposition of sanctions.

The trial court ruled in the bank’s favor and ordered the dismissal of the church’s amended complaint unless within 45 days the church paid $32,022.85 into the registry of the court pending the resolution of the case. This order was filed October 27, 1998. Instead of paying into the court’s registry, the church elected to appeal that decision and filed a timely notice of appeal on November 20, 1998. In its notice of appeal the church sought to include: “[t]he entire record, transcripts of all pre-trial and motions hearings, and all evidence in each pre-trial and motions hearings will be included by the clerk in the record on appeal. No portion of the record is to be omitted on appeal.”

About three months later, counsel for the church advised the trial court in a letter dated March 2, 1999:

The appeals clerk in the Clerk’s Office of the Henry County Superior Court has informed me that in order to finish preparation of the appeal record, she needs an order from you to open up the sealed deposition of the bank’s president, Mr. Charles Burt Blackmon. I have enclosed a proposed order to this effect.

By letter to the trial court dated March 3, 1999, the bank objected to the proposed order and urged the trial court to dismiss the church’s notice of appeal. The bank accused the church of dilatory actions and pointed out that the church had failed to seek an extension of time for having the record transmitted within 30 days to the Court of Appeals. About a week later, on March 11, 1999, counsel for the church faxed a letter to the trial court expressing total disagreement with the bank’s contentions and conclusions. The church’s counsel questioned whether it was his responsibility to obtain an order for unsealing the deposition.

Without conducting a hearing on the matter, the trial court on May 21, 1999, ordered the notice of appeal dismissed. The court noted:

Plaintiff contends that in order to complete preparation of the record for appeal, the sealed deposition of Mr. Charles Burt Blackmon must be opened. Defendant, First Community Bank of Henry County, responds by objecting to the opening of the deposition and requesting that Plaintiff’s Notice of Appeal be dismissed. Defendant contends that dismissal of Plaintiff’s Notice of Appeal is proper because the record was not remitted to the Court of Appeals within the thirty (30) day time requirement. After reviewing the file and correspondence of the attorneys for both parties, the court finds that the file was not timely remitted to the Court of Appeals. WHEREFORE IT IS HEREBY ORDERED AND ADJUDICATED that Plaintiff’s Notice of Appeal be DISMISSED.

The sole issue on appeal is whether the trial court erred in ordering the appeal be dismissed.

As a general rule, this state’s appellate courts should reach the merits of appeals whenever possible. OCGA § 5-6-30; Galletta v. Hillcrest Abbey West, 185 Ga. App. 20, 21 (363 SE2d 265) (1987). The policy is to avoid the dismissal of an appeal and to reach the merits of a case whenever it is reasonable to do so. Sellers v. Nodvin, 262 Ga. 205, 207 (1) (b) (415 SE2d 908) (1992).

Without question, it is an “appellant’s obligation to complete the record. OCGA §§ 5-6-37; 5-6-42.” Blount v. Moore, 175 Ga. App. 288, 291 (333 SE2d 167) (1985) (physical precedent only). In so doing, an appellant must timely pay the costs and ensure the timely preparation of any needed transcripts or evidence. Long v. City of Midway, 251 Ga. 364 (306 SE2d 639) (1983).

[I]t is the responsibility of the clerk of court to prepare the record and transmit it to the appellate court. . . . [T]he transcript of evidence and proceedings, as opposed to the record, is the responsibility of the appellant, or if [the appellee] desires inclusion of material omitted by appellant, [of] the appellee. . . . After the appellant has filed a notice of appeal, his duty as to the record is limited to the payment of costs.

(Citations omitted.) Id. Upon filing a timely notice of appeal as to an appealable order, an appellant therefore has two responsibilities: timely payment of costs, OCGA § 5-6-48 (c), and filing the requisite transcript or portions thereof within 30 days. OCGA § 5-6-42. Id. Once the notice of appeal has been filed, “the obligation for the preparation of the record rests with the clerk.” Long, supra. The clerk is required to transmit the record to the appellate court within five days after the transcript is filed, or if no transcript is to be filed, within twenty days after the filing of the notice of appeal. OCGA § 5-6-43 (a). “If for any reason the clerk is unable to transmit the record and transcript within the time required in this subsection ... , he shall state in his certificate the cause of the delay and the appeal shall not be dismissed.” OCGA § 5-6-43 (a).

When an appellant has properly paid the costs and the failure to transmit the record is occasioned by the clerk, the trial court has no discretion to dismiss the appeal. Long, supra; compare Hooper v. Southern Bell Tel. &c. Co., 195 Ga. App. 629, 630 (2) (394 SE2d 798) (1990) (failure to pay costs until 72 days after receipt of bill for costs both unreasonable and inexcusable); City of College Park v. Ga. Power Co., 188 Ga. App. 223, 225 (372 SE2d 493) (1988) (trial court did not abuse its discretion in dismissing appeal when appellant’s conduct contributed to delay that was found inexcusable and unreasonable).

Decided February 16, 2000.

Notwithstanding the bank’s claim to the contrary, a trial court may order the dismissal of an appeal only after notice and an opportunity for a hearing, and then only if the court finds that “there has been an unreasonable delay in the filing of the transcript and it is shown that the delay was inexcusable and was caused by such party.” OCGA § 5-6-48 (c). Cook v. McNamee, 223 Ga. App. 460, 461 (477 SE2d 884) (1996). Absent a finding of both an unreasonable delay and one that was inexcusable, the dismissal of an appeal by a trial court is not authorized. Sellers, supra at 206. Here, no such findings were made.

The bank’s reliance upon Teston v. Mills, 203 Ga. App. 20 (416 SE2d 133) (1992) is misplaced. In that case, the delay was directly attributable to the appellant who designated the inclusion in the record of a nonexistent transcript. The same problem arose in Johnston v. Ga. Pub. Svc. Comm., 209 Ga. App. 224 (433 SE2d 65) (1993); again, the sole reason for the delay was the clerk’s office waiting for the filing of a nonexistent transcript.

The church filed the sealed deposition at issue more than six weeks before filing its notice of appeal, and the delay appears to have been occasioned by the clerk’s office’s refusal to transmit a deposition under seal. Although the bank now claims that the clerk notified opposing counsel of the problem four days after the church filed its notice of appeal, no indication that notice was given appears in the record. Moreover, nothing in the Appellate Practice Act obligates an appellant to obtain an order from the trial court to unseal a deposition. OCGA § 5-6-30 et seq. Sealed depositions are routinely transmitted to this court. Because the record contains no evidence to support a finding that the church was responsible for the delay in transmitting the record to this court, the trial court had no discretion to dismiss the appeal. Long, supra; compare Beavers v. Gilstrap, 210 Ga. App. 46, 47 (435 SE2d 267) (1993) (case remanded for trial court to make requisite findings).

Judgment reversed.

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

John A. Pickens, for appellant.

Thomas E. Baynham III, for appellee.

       In this letter to the trial court dated March 11, 1999, counsel for the church wrote, “[although I do not know that this was my responsibility, I was asked by an appeals clerk in the Henry County Superior Court to see if I could obtain from you an order to open Mr. Blackmon’s deposition, as that was needed to complete the appeals record.” Counsel then explained that he had been delayed in seeking the order but did not reveal the date on which the clerk notified him about a problem in transmitting the record.


author: Blackburn, Presiding Judge.

text:
    A00A0047.
    PHILLIPS v. THE STATE.
    (530 SE2d 1)
   Blackburn, Presiding Judge.

Willa M. Brown Phillips, following a jury trial, appeals her conviction for tampering with evidence, contending that the State presented insufficient evidence to support the verdict against her. For the reasons set forth below, we affirm the conviction.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Phillips] 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 . . . verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Punctuation omitted.) Kovacs v. State, 227 Ga. App. 870 (1) (490 SE2d 539) (1997). See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Viewing the evidence in this light, the record reveals that, based on a tip by a reliable confidential informant, police executed a “no-knock” search warrant on Phillips’ home. When the police entered the home, Phillips was in the kitchen by herself standing near the sink, although there were others in her house at the time. The water in the sink was running, and the garbage disposal was running. Seeing the police in her home, Phillips walked out of the kitchen, and, when presented with the search warrant she stated, “Well y’all not going to find anything here but what’s in the sink. Anything else you planted it here.” Based on this statement, the police investigated the kitchen sink and its contents. After dismantling the garbage disposal, the police found a piece of a plastic bag covered with cocaine residue. Phillips was then arrested for possession of cocaine and tampering with evidence. Although the jury could not reach a verdict on the charge of possession, Phillips was found guilty of tampering with evidence.

“A person commits the offense of tampering with evidence when, with the intent to prevent the apprehension ... of any person or to obstruct the prosecution ... of any person, [she] knowingly destroys, alters, conceals, or disguises physical evidence.” OCGA § 16-10-94 (a).

Decided February 16, 2000.

Gerald B. Williams, for appellant.

Kenneth B. Hodges III, District Attorney, Gregory W. Edwards, Assistant District Attorney, for appellee.

Based on the evidence before it, the jury in this case could infer that Phillips, the only one in the kitchen at the time the warrant was executed, attempted to destroy evidence of cocaine in her home by placing the plastic bag in which it was contained in the garbage disposal. Moreover, Phillips’ statement to the police is direct evidence of her knowledge that cocaine had been placed in the garbage disposal. Therefore, the evidence of record is sufficient to support Phillips’ conviction for tampering with evidence.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.


author: Johnson, Chief Judge.

text:
    A00A0228.
    TOMLIN v. THE STATE.
    (530 SE2d 27)
   Johnson, Chief Judge.

A police officer may stop a motor vehicle to conduct a limited investigation if she has a reasonable suspicion of criminal conduct. The smell of marijuana provides an officer with a reasonable suspicion that marijuana is present in a vehicle. Narcotics Special Agent Holmes was driving behind a truck driven by Scott Tomlin when she saw a passenger in the truck smoking and then blowing smoke that smelled like marijuana out the truck window. Having smelled marijuana, Agent Holmes called for another police unit to conduct an investigative stop of the vehicle. Another unit then stopped the truck and found marijuana in it. Was the investigatory stop of the vehicle legal? We hold that it was legal because when Agent Holmes smelled marijuana coming from the truck, she had a reasonable suspicion that the vehicle contained marijuana. We therefore affirm the trial court’s denial of Tomlin’s motion to suppress the drugs found in his truck and judgment of conviction based on that evidence.

On August 9, 1998, Clayton County Narcotics Special Agent S. Holmes was off-duty and driving in an unmarked vehicle in the city of Jonesboro. She was traveling behind a pickup truck that was being driven by a man later identified as Tomlin. There were two passengers in the truck. The passenger sitting next to the window was smoking what looked like a cigarette. Three different times Agent Holmes saw the passenger blow smoke from the cigarette out the truck window. Each time he exhaled the smoke, Agent Holmes smelled marijuana. Agent Holmes called on the radio for a marked police unit to stop the vehicle and investigate for suspected marijuana use.

Officer Tyrone Johnson responded to the call and stopped Tomlin’s vehicle. Officer Johnson spoke with the passenger sitting next to the window, and the passenger admitted that he had been smoking marijuana in the truck. Officer Johnson then talked to Tomlin, who claimed that he did not know if there was any marijuana in the vehicle. Tomlin consented to a search of the truck. Officer Johnson opened the passenger door and saw a plastic bag containing suspected marijuana lying on the floorboard. Officer Johnson questioned Tomlin and the two passengers about the apparent marijuana, and Tomlin then admitted that it belonged to him.

Tomlin was charged with possessing marijuana. He moved the trial court to suppress the marijuana found in his truck, arguing that the police had no reasonable basis for stopping his vehicle. The court held an evidentiary hearing at which Special Agent Holmes and Officer Johnson were the only witnesses. After hearing all the evidence and arguments of counsel, the court denied the motion. The case was later tried before the judge sitting without a jury. The trial court convicted Tomlin of possessing marijuana and sentenced him to 12 months probation. Tomlin appeals, challenging the denial of his motion to suppress and his subsequent conviction based on the marijuana seized from his truck.

When reviewing a trial court’s decision on a motion to suppress, we construe the evidence most favorably to uphold the court’s judgment. It is the trial court’s duty to resolve conflicts of evidence, so we must adopt its findings of fact and credibility unless they are clearly erroneous. In the instant case, the trial court found that Special Agent Holmes smelled marijuana coming from the truck. Because that finding of fact and credibility is not clearly erroneous, we must adopt it.

A police officer who has specific, articulable facts that give rise to a reasonable suspicion of criminal conduct may stop an automobile to investigate — a founded suspicion is all that is necessary, some basis from which the court can determine that the stop was not arbitrary or harassing. The odor of marijuana emanating from a car provides a reasonable suspicion that marijuana is present in the car.

Decided February 16, 2000.

Teresa O. Weiner, for appellant.

Keith C. Martin, Solicitor, Aaron B. Mason, Assistant Solicitor, for appellee.

Here, Agent Holmes’ smelling marijuana smoke being blown from Tomlin’s truck was a specific, articulable fact that gave rise to a reasonable suspicion that there was marijuana in the truck. Because she had a founded suspicion of a crime, her request that Tomlin’s truck be stopped for a brief investigation was justified, and not arbitrary or harassing. The trial court therefore did not err in denying Tomlin’s motion to suppress the marijuana found in his truck or in convicting him based on that properly discovered evidence.

Judgment affirmed.

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

        Fritzius v. State, 225 Ga. App. 642, 643-644 (484 SE2d 743) (1997).

        Taylor v. State, 230 Ga. App. 749, 751 (1) (c) (498 SE2d 113) (1998).

        Stewart v. State, 236 Ga. App. 888 (513 SE2d 778) (1999).

         Id.; Peeples v. State, 234 Ga. App. 454 (1) (507 SE2d 197) (1998).

        Fritzius, supra.

        Taylor, supra; see also State v. Long, 239 Ga. App. 463, 465 (521 SE2d 401) (1999) (the odor of marijuana coming from a car is a factor that may provide not merely reasonable suspicion, but probable cause for a search).


text:
    A97A0645.
    HEAD v. CSX TRANSPORTATION, INC.
    (529 SE2d 892)
    Decided February 17, 2000.

      Taylor, Harp & Callier, John A. Harp, Jefferson C. Collier, for appellant.
   Smith, Judge.

In Head v. CSX Transp., 271 Ga. 670 (524 SE2d 215) (1999), the Supreme Court reversed the judgment of this Court in Head v. CSX Transp., 235 Ga. App. 469 (508 SE2d 760) (1998). Therefore, our prior judgment in this appeal is vacated, and the judgment of the Supreme Court is made the judgment of this court. Accordingly, the judgment of the trial court is reversed, and Head is entitled to a new trial as to all issues.

Judgment reversed.

McMurray, P. J., Andrews, P. J., Ruffin, Eldridge, Barnes and Ellington, JJ, concur.

Casey, Gilson & Williams, Robert E. Casey, Jr., James E. Gilson, Matthew P. Stone, Sandra Gray, for appellee.


author: Eldridge, Judge.

text:
    A00A0340.
    JORDAN v. THE STATE.
    (530 SE2d 42)
   Eldridge, Judge.

James Jordan filed this direct appeal from Cobb County Superior Court’s denial of his motions to correct an illegal sentence and to appoint appellate counsel. These motions were filed in October 1998, 14 years after his convictions were affirmed on appeal by this Court. See Graham v. State, 171 Ga. App. 242 (319 SE2d 484) (1984). This Court finds that Jordan’s asserted errors are without merit, except his assertion regarding improper venue for one kidnapping charge. Therefore, we reverse one of his kidnapping convictions but affirm the trial court’s order as to his remaining convictions.

The record shows that, in February 1982, a jury convicted Jordan and two co-defendants of kidnapping (two counts), aggravated assault, attempted armed robbery, and aggravated assault on a police officer (two counts). The charges arose from incidents following Jordan’s September 1981 escape from Cherokee County Jail in Center, Alabama. The facts of this case are set out in Jordan’s direct appeal of his conviction, Graham v. State, supra. The record on appeal does not contain a transcript of the evidence presented at trial.

1. In his first enumeration of error, Jordan asserts that his conviction for kidnapping George Horsley is invalid because the venue was improper. In its responsive brief, the State concedes that Horsley was seized in Polk County, not Cobb County. Therefore, Cobb County was not the proper venue for prosecuting this charge. See OCGA § 17-2-2 (a); Lee v. State, 270 Ga. 798 (514 SE2d 1) (1999); Potts v. State, 261 Ga. 716, 720 (2) (410 SE2d 89) (1991); Boxer X v. State, 237 Ga. App. 526 (515 SE2d 668) (1999); see also Miller v. State, 174 Ga. App. 42, 44 (3) (329 SE2d 252) (1985) (“Kidnapping is not a continuing offense, and the crime is consummated when the victim is seized.”). We reverse Jordan’s conviction for kidnapping Horsley.

2. In his second enumeration, Jordan claims that his convictions for aggravated assaults on two Cobb County police officers should have been merged for sentencing purposes, as the convictions were “identical” and based upon the same evidence. This enumeration has no merit.

Jordan was convicted of repeatedly firing a shotgun at police officers as they pursued Jordan and his co-defendants through Cobb County. Two officers were wounded as a result; one of the officers received multiple wounds. “[Jordan’s] act of firing his weapon into the group made each individual in the group a separate victim. The [two] aggravated assault convictions of which [Jordan] was found guilty do not merge because the offenses were committed upon different victims.” (Citations omitted.) Pace v. State, 239 Ga. App. 506, 509 (6) (521 SE2d 444) (1999).

Further, even if Jordan’s claim that it is possible that both police officers were wounded by the same shot were true, the resulting charges do not merge. “[T]he legislature did not intend one crime to be included within another if each crime affected a different person.” (Citation and punctuation omitted.) Hall v. State, 235 Ga. App. 44, 47 (5) (508 SE2d 703) (1998) (wherein one shot was fired, killing one person and wounding another). See also Rogers v. State, 163 Ga. App. 641, 644 (4) (295 SE2d 140) (1982).

3. In his third enumeration of error, Jordan claims that the trial court erred in failing to merge one of his kidnapping convictions into the attempted armed robbery conviction for the purpose of sentencing. This enumeration lacks merit.

Under OCGA § 16-5-40 (a), “[a] person commits the offense of kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such person against his will.” In contrast, a person commits the crime of attempted armed robbery when, with the intent to commit theft, he attempts to take another person’s property through the use of an offensive weapon. OCGA § 16-8-41 (a). As such, the offenses have different elements and do not merge as a matter of law. See OCGA §§ 16-1-6 (1); 16-1-7 (a); Emmett v. State, 199 Ga. App. 650, 651 (3) (405 SE2d 707) (1991); Chambley v. State, 163 Ga. App. 502, 504 (2) (295 SE2d 166) (1982).

Further, this Court previously found that the evidence was sufficient to convict Jordan of both the kidnapping and attempted armed robbery of Randall Mclnnis, as the offenses were two separate, distinct, and sequential crimes against the victim. Graham v. State, supra at 243. The evidence showed that Jordan and his co-defendants were traveling along Highway 41 in Cobb County when the driver stopped the car long enough to pick up Mclnnis, a hitchhiker. Id. at 242. After Mclnnis was in the automobile, Jordan slapped him, pointed a shotgun at him, and demanded his money. Id. However, when the car stopped at a stoplight, Mclnnis attempted to escape the vehicle. Id. Jordan and his co-defendants grabbed Mclnnis’ hair and beat him to keep him from leaving the car. Id. Although Mclnnis managed to escape, the scuffle caught the attention of police officers, who pursued the vehicle. Id.; see also Division 2, supra.

Decided February 17, 2000

Under these circumstances, the offenses of kidnapping and attempted armed robbery did not merge as a matter of law or fact. See Chambley v. State, supra at 504 (2). Accordingly, it was not error for the trial court to sentence Jordan separately for the crimes.

4. In his final enumeration, Jordan claims that the trial court erred in refusing to appoint counsel to assist him in pursuing his motion to correct an illegal sentence. However,

[u]nder the United States Constitution, the [S]tate is required to provide counsel to indigent defendants for their trial, Gideon v. Wainwright, 372 U. S. 335 (83 SC 792, 9 LE2d 799) (1963), and for their first appeal as a matter of right, Douglas v. California, 372 U. S. 353 (83 SC 814, 9 LE2d 811) (1963), but no further. The Constitution does not even require states with multi-tiered appellate systems to appoint appellate counsel through the exhaustion of an indigent defendant’s discretionary direct appeals. Ross v. Moffitt, 417 U. S. 600 (94 SC 2437, 41 LE2d 341) (1974).

Gibson v. Turpin, 270 Ga. 855, 857 (1) (513 SE2d 186) (1999). See also Fullwood v. Sivley, 271 Ga. 248, 253 (517 SE2d 511) (1999); Burroughs v. State, 239 Ga. App. 600, 601-602 (2) (521 SE2d 652) (1999).

Jordan’s convictions were affirmed on direct appeal in 1984. Graham v. State, supra. The direct appeal did not raise any of the sentencing errors alleged herein. The fact that Jordan filed this action 14 years later does not make this a “fragmented appeal” that can breathe new life into the exhausted direct appeal of his conviction. See Null v. State, 216 Ga. App. 641 (455 SE2d 359) (1995); see also generally Gibson v. Turpin, supra at 857. Therefore, the trial court did not err in refusing to appoint counsel to represent Jordan in this action.

Judgment affirmed in part and reversed in part.

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

James Jordan, pro se.

Patrick H. Head, District Attorney, Maria B. Golick, Debra H. Bernes, Assistant District Attorneys, for appellee.

       We note, however, that “[w]here venue is not established by the State, any ensuing judgment is void, although reversal of a conviction on this basis does not prevent retrial in a court where venue is proper and proven.” (Punctuation and footnote omitted.) Waller v. State, 231 Ga. App. 323, 326 (498 SE2d 362) (1998). See also Kimmel v. State, 261 Ga. 332, 334 (1) (404 SE2d 436) (1991); Sewell v. State, 229 Ga. App. 685 (494 SE2d 512) (1997).

       Jordan’s complaint that the aggravated assault offense should have been merged into the attempted armed robbery is without merit, as the two convictions were, in fact, merged for sentencing.


author: Phipps, Judge.

text:
    A00A0350.
    HAYES v. CLARK.
    (530 SE2d 38)
   Phipps, Judge.

Helen Hayes, the adoptive mother of Sheronda Hayes (now Clark), was appointed Clark’s guardian ad litem in litigation arising from an automobile collision in which both were injured. A monetary judgment in favor of Clark directed Hayes to hold the money in trust until Clark’s eighteenth birthday. Instead, Hayes deposited the money into her own account. When she failed to deliver the funds to Clark after she turned 18, Clark brought this action against Hayes for conversion of the funds.

At trial, Hayes defended on grounds that she was not financially able to support Clark without using the child’s estate. The court questioned whether the evidence showed that Hayes was not financially able to support the child. Ultimately, the court ruled that even if financial inability had been established, it would not be a defense to Hayes’s breach of her duties as trustee. After directing a verdict in Clark’s favor, the court entered judgment in the amount of $12,139.94 principal and interest. Hayes appeals. She contends that the trial court erred when it did not apply what she claims to be the controlling authority and when it found that the settlement order created an express trust. We find no error, and we affirm.

Clark was born in 1973 and adopted by Hayes in 1983. They resided in New Jersey. As a result of a 1985 automobile collision in that state, personal injury actions were brought by Hayes on behalf of herself and Clark in a New Jersey superior court. In 1989, the parties moved to Georgia. Later that year, the New Jersey court entered judgment

in favor of the plaintiff, Sheronda Hayes, an infant by her guardian ad litem, Helen Hayes, ... in the sum of $5,887.50 . . . against the defendant . . . ; said sum to be disbursed to the guardian and mother of the infant plaintiff, Helen Hayes, to be held by Helen Hayes in trust for her daughter until her daughter’s 18th birthday; and any bond of said guardian is hereby waived.

Hayes filed a pretrial motion asking the trial court to construe this order as not having established an express trust. Applying Georgia law because there was no proof of the law of the State of New Jersey,* the court ruled that the order created a valid express trust.

1. Hayes challenges the correctness of this ruling.

She argues that the New Jersey order did nothing more than recognize that she was Clark’s guardian. There is no merit in this argument. The order did recognize that the action had been prosecuted by Hayes on behalf of Clark in her capacity as guardian ad litem and that she was also Clark’s (natural) guardian and mother. But the order also directed Hayes to hold the money “in trust” on behalf of Clark until her eighteenth birthday.

An express trust shall be created or declared in writing. An express trust shall have each of the following elements, ascertainable with reasonable certainty: (1) An intention by a settlor to create a trust; (2) Trust property; (3) A beneficiary; (4) A trustee; and (5) Active duties imposed on the trustee, which duties may be specified in the writing or implied by law.

There is no merit in Hayes’s argument that the New Jersey order did not establish an express trust because it did not name or impose active duties upon a trustee. Clearly, Hayes was the trustee. And active duties imposed on the trustee “may be specified in the writing or implied by law.”

Nor is there merit in Hayes’s argument that the New Jersey court could not be the settlor of a trust. Because the court had legal capacity to transfer title to the property, it could direct the guardian to hold the money in trust for the child.

2. In reliance on Pettigrew v. Williams, Hayes contends that the trial court erred in directing a verdict in favor of Clark. There is no merit in this contention. Under Shipp v. McCowen the direction of a verdict was proper.

Pettigrew, like the present case, was an action by a child (Williams) against her mother (Pettigrew). After the child’s father died, Pettigrew was appointed guardian of the person and property of Williams and her other minor children. Pettigrew later received approximately $13,000 as property of her wards. When Williams attained majority and did not receive her share of the funds, she filed a petition against Pettigrew in the court of ordinary (now probate court) for an accounting and settlement. In her defense, Pettigrew submitted annual returns which had been filed by her as guardian and which purported to show that all money received, except about $300, was spent for the support and maintenance of the wards. Williams sought to amend her petition to attack the returns and accompanying vouchers. The court of ordinary disallowed the amendments. On appeal, the superior court did likewise and directed a verdict approving the returns of the guardian.

This court reversed, holding that the annual returns of a guardian, even when allowed by the ordinary, are only prima facie evidence of the correctness thereof and may be attacked by the ward in an application for a settlement. The court recognized, however, that where circumstances are such that the parent is not financially able to support and educate the child, an allowance for that purpose may be made from the child’s estate either as a provision for the future or as reimbursement for past expenditures.

In Shipp, Shi was appointed administrator of the estate of her husband. Shi and her four children were the distributees of the estate. Shipp, who was one of the children, brought a petition for settlement and was awarded approximately $3,000 as her distributive share. But Shi was insolvent, and Shipp sought to collect the judgment against the McCowens as surety on the administrator’s bond. The McCowens defended by alleging that Shipp had received her entire distributive share through Shi’s expenditure of estate assets for the support and maintenance of the children. The trial court accepted this defense.

The Supreme Court reversed. It held that if it had been necessary to expend the corpus of Shipp’s share for her maintenance and education, a guardian should have been appointed who should have made application to the court to encroach upon the corpus for that purpose.* The Court held that the discretion to allow the corpus of the estate to be used for the maintenance and education of the ward belonged to the ordinary alone, although it also recognized that, if the guardian had made such expenditures without prior court approval, the court could have ratified the action by approval of regular annual returns. Because Shi had expended the corpus of Shipp’s distributive share without obtaining court approval or making returns of the expenditures, the Supreme Court held that the sureties could not raise the asserted defense. The Court observed, “It may seem that this is applying a harsh and stern rule . . . , but it is the only rule that will safeguard the estate of minors.”

Decided February 17, 2000.

Straughan & Straughan, Mark W. Straughan, for appellant.

Simpson & Cross, Ralph F. Simpson, for appellee.

This case is controlled by the reasoning employed in Shipp. Because Hayes without court permission failed to comply with her duty to hold the money in trust until distributing it to Clark when she reached 18, she cannot now claim that she depleted the trust fund for a purpose which the court may have authorized. The observation made in Shipp is apt. This rule may be harsh, but it is necessary to safeguard trust estates.

Judgment affirmed.

Johnson, C. J., and McMurray, P. J., concur.

       Hayes subsequently received a $5,887.50 check made payable to her as Clark’s guardian and drawn on her lawyers’ trust account. The check was accompanied by a letter from the law firm directing Hayes to deposit the check into an interest-bearing account on behalf of Clark and to turn the proceeds over to her when she reached her eighteenth birthday.

        See Danzell v. Cannon, 224 Ga. App. 602, 603 (1) (481 SE2d 588) (1997) (absent proper introduction and proof of the law of a sister state, it is presumed that such foreign law is identical to Georgia’s). .

       OCGA § 53-12-20 (a), (b).

       OCGA § 53-12-20 (b) (5).

       See OCGA § 53-12-22.

       65 Ga. App. 576 (16 SE2d 120) (1941).

       147 Ga. 711 (95 SE 251) (1918).

       See OCGA § 29-2-44.

       65 Ga. App. at 585 (3).

       Id. at 588-589.

       147 Ga. at 714; see OGCA §§ 29-2-2; 29-4-2 (b).

       147 Ga. at 715.

       Id. at 714.

         Id.

       Accord 76 AmJur2d, Trusts, §§ 335, 347, 374 (1992).


text:
    A00A0510.
    SCOTT v. THE STATE.
    (530 SE2d 41)
   Eldridge, Judge.

In March 1998, Curtis Scott was convicted by a jury of aiding the escape of a fellow prisoner. On appeal, he challenges the trial court’s denial of his motion for a directed verdict of acquittal. We find that the State presented sufficient evidence to overcome the motion and affirm.

The standard of review of the denial of a motion for directed verdict of acquittal is that from Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). On appeal, the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine the credibility of witnesses, but only determines whether the evidence is sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt. In addition, conflicts in the witnesses’ testimony are a matter for a jury to resolve. As long as there is some competent evidence, even though contradicted, on each element necessary to prove the State’s case, the jury’s verdict will be upheld.

(Citations omitted.) Hubbard v. State, 239 Ga. App. 632, 634 (2) (521 SE2d 678) (1999).

Viewed in this light, the evidence showed the following: On October 19, 1997, Scott and Marvin Turner were incarcerated at Hays State Prison. Scott was scheduled to be released that day. At approximately 9:10 a.m., Turner approached prison officials; he had on Scott’s shirt with Scott’s name tag and presented them with Scott’s identification. Turner said his name was “Curtis Scott” and that he was supposed to go home that day. The evidence also showed that Turner had shaved his head in order to resemble Scott and that Scott was aware of this change in Turner’s appearance.

Believing that Turner was, in fact, Scott, prison officials told Turner to go back to his cell and wait until he was called. Turner went to Scott’s cell and packed up Scott’s belongings. When it was time for Scott’s release, prison officials called for him on the intercom. Turner signed the release forms as “Curtis Scott” and left the prison with Scott’s personal possessions. Scott’s girlfriend, Dorcas Washington, met Turner at the prison and drove away with him.

Around noon that day, the prisoners were supposed to return to their cells for a census count. The officials counted 61 prisoners, one less than the early morning count. Scott was in Turner’s cell at that time. Several hours after Turner’s escape, Scott complained to prison officials that he was supposed to be released that day. Prison officials locked down the prison and discovered that Turner had escaped.

At trial, Scott’s cellmate testified that he saw Scott and Turner talking on the morning of the escape. A prison official testified that, after the escape was discovered, he segregated Scott, Scott’s cellmate, and Turner’s cellmate. At that time, Scott was not wearing a complete prison uniform. When the employee asked Scott about his uniform, Scott told him that someone had stolen his uniform and identification card about three weeks before the escape. Another prison official, however, testified that an identification card is necessary “to go anywhere and do anything,” such as to go to another building, the prison store, or the gym. He also stated that it would be very difficult for an inmate to go for weeks without an identification card.

Decided February 17, 2000.

. H. Robert Hannah III, for appellant.

Herbert E. Franklin, Jr., District Attorney, for appellee.

Further, an employee of the Chattooga County Sheriffs Department, where Scott was held following the escape, testified that Scott had confided in him that Scott traded places with Turner so Turner, who was serving a life sentence without parole for murder, could be free. The employee said that Scott told him that “if he had it to do over. . . he would do it again,” referring to his assistance of Turner’s escape. Another inmate overheard Scott’s statement and also testified about it at trial.

In his sole enumeration, Scott claims that this evidence is insufficient to meet the State’s burden of proof under Jackson v. Virginia, supra. We disagree.

The evidence was sufficient for a rational juror to find beyond a reasonable doubt that Scott aided Turner’s escape in the following manner: Scott agreed to allow Turner to utilize his identity in order to escape; Scott assisted Turner by giving him the necessary identification; Scott went to Turner’s prison cell during the noon census count to postpone the discovery that Turner was missing; Scott secured the assistance of his girlfriend to carry Turner away from the prison; and Scott waited until Turner was gone for several hours before bringing the escape to the attention of prison officials. Jackson v. Virginia, supra. Therefore, we affirm Scott’s conviction.

Judgment affirmed.

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

       Prison records showed that Washington was Scott’s “significant other,” and that she had visitation privileges with Scott; it is undisputed that Scott is the father of one of her children. However, at trial, prison officials testified that, when Washington met Turner at the prison, she hugged and kissed him, then told the officials that “I sure am glad he’s coming home, the children needed their father.” Washington was indicted for aiding Turner’s escape.


text:
    A00A0617.
    PEPPERS v. THE STATE.
    (530 SE2d 34)
   Eldridge, Judge.

Linda Kay Peppers appeals from the denial of her motion for new trial, which followed her May 1998 convictions for burglary, armed robbery, aggravated assault, and aggravated battery. Peppers challenges the sufficiency of the evidence at trial and the trial court’s denial of her extraordinary motion for new trial, which was based upon a witness’ subsequent assertion that he had lied under oath at Peppers’ trial. We find that the evidence presented was sufficient to sustain the convictions and that the witness’ recantation did not require a new trial. Accordingly, we affirm.

1. In three enumerations, Peppers asserts that the trial court erred when it failed to direct a verdict of acquittal. She claims that the evidence showed that she was merely present at the scene of the crimes and that she lacked any prior knowledge that a crime was to be committed. This assertion lacks merit.

The standard of review of the denial of a motion for directed verdict of acquittal is that from Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). On appeal, the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine the credibility of witnesses, but only determines whether the evidence is sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt. In addition, conflicts in the witnesses’ testimony are a matter for a jury to resolve. As long as there is some competent evidence, even though contradicted, on each element necessary to prove the State’s case, the jury’s verdict will be upheld.

(Citations omitted.) Hubbard v. State, 239 Ga. App. 632, 634 (2) (521 SE2d 678) (1999).

In addressing Peppers’ assertions regarding her participation in the crimes, we note that,

[u]nder OCGA § 16-2-20 (a)[,] every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime. One is concerned in the commission of a crime where the person either directly commits, intentionally causes another to commit, intentionally aids or abets the commission of, or intentionally advises or otherwise encourages another to commit the crime. While mere presence at the scene of the commission of a crime is not sufficient evidence to convict one of being a party thereto, presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.

(Citations and punctuation omitted.) Bailey v. State, 203 Ga. App. 133, 135 (1) (416 SE2d 151) (1992). See also Hildebrand v. State, 209 Ga. App. 507, 511 (4) (433 SE2d 443) (1993). Further, if the State presents sufficient evidence that the actors were involved in a conspiracy, i.e., the individuals had associated themselves together in a common design to do an unlawful act, “any act done in pursuance of that association by any one of the associates would, in legal contemplation, be the act of each of them.” Ford v. State, 163 Ga. App. 745, 746-747 (296 SE2d 85) (1982). See also Culberson v. State, 236 Ga. App. 482, 484 (512 SE2d 367) (1999).

The evidence in this case showed that, on February 23, 1998, Peppers and two friends, J. R. Carter and Janan Hogan, met at a home in Atlanta. They left shortly thereafter in Hogan’s car and drove through a “dope trap” in search of heroin and crack cocaine. Peppers admitted at trial that she is a heroine addict; that she was experiencing withdrawal symptoms; and that the little money she had given Carter to buy drugs “was not near enough to supply me [with heroin] for an entire day.” After Carter, Peppers, and Hogan were unable to find a drug dealer, they drove up to Cherokee County to the home of the victim, who was an acquaintance of Carter’s. Carter told Peppers that the victim would loan him some money so that they could buy drugs. On the way, they stopped at a store, and Peppers shoplifted two bottles of wine. She drank from one of the bottles in an attempt to alleviate the chills, nausea, and pain she was experiencing from heroin withdrawal.

Once they arrived at the victim’s home, Carter approached the back door and knocked; Peppers and Hogan remained in the car. When Carter realized that no one was home, he broke the window of the back door and unlocked it from the inside. In the process, he severely cut his right hand in several places. Even though he wrapped one of the victim’s shirts around the cuts, blood dripped throughout the house. Carter began picking up items from the house, including a “boom box” compact disc player, two albums of CDs, telephones, and a watch. Peppers met him inside the living room and helped him carry the items to the car. She claimed at trial that she did not notice the broken window, the blood and glass on the floor near the door, or the bleeding wounds on Carter’s hand.

When Carter and Peppers got back to the car, the victim drove down the driveway in his truck. Carter approached the victim and asked him if he would loan them some money. When the victim refused, Carter went back to the car to get a wine bottle. Carter then hit the victim twice over the head with the full wine bottle, knocking the victim to the ground and causing severe and permanent injuries. While the victim was unconscious, Carter went through his pockets and took approximately $350 in cash. He handed the money to Peppers and told her to count it. Carter testified that Peppers did nothing to stop him from harming the victim, and there was no evidence that she called 911 or did anything else to aid the victim after the attack.

Carter, Peppers, and Hogan left the scene and went back to Atlanta, where they used $200 of the stolen cash to purchase crack cocaine for Carter and heroin for Peppers and Hogan. Peppers admitted at trial that she used the heroin shortly after it was purchased. Another individual testified that he saw Peppers and the others when they returned from buying the drugs and that they had “a bunch of dope,” boom boxes, CDs, and “stuff like that” in the cár. Peppers told him that they had “robbed the dope man.”

These facts clearly show that Peppers was actively involved in a common scheme with Carter and Hogan to secure money with which to buy illegal drugs; that she knew or should have known that the criminal acts were being committed; that she actively participated in the burglary; that she failed to prevent or to render aid after the remaining crimes; and that she enthusiastically shared in the proceeds resulting from the criminal acts. We find that there was sufficient evidence for a jury to find that Peppers was involved in the crimes beyond her “mere presence.” Therefore, the trial court did not err in denying her motion for directed verdict.

2. In her remaining enumeration, Peppers contends that the trial court erred in denying her extraordinary motion for new trial. In her motion, Peppers asserted that Carter had contacted her attorney and admitted fabricating some of his testimony at trial. This Court has held, however, that simply because

a material witness for the State, who at the trial gave direct evidence tending strongly to show the defendant’s guilt, has since the trial made statements even under oath that his former testimony was false [] is not cause for a new trial. Declarations made after the trial are entitled to much less regard than sworn testimony delivered at the trial. This difference in value must be recognized, so long as there has been no conviction of perjury. Provision is made for setting aside verdicts resting on perjury, but there must first be a conviction. The only exception to the rule against setting aside a verdict without proof of a material witness’ conviction for perjury, is where there can be no doubt of any kind that the State’s witness’ testimony in every material part is purest fabrication.

(Citations and punctuation omitted.) Johnson v. State, 236 Ga. App. 764, 765 (513 SE2d 291) (1999). See also Miller v. State, 226 Ga. App. 509, 515 (4) (486 SE2d 911) (1997).

While a witness’ recantation may impeach his prior testimony, it is not the type of evidence that proves the trial testimony was the “purest fabrication.” Miller v. State, supra; see also McKnight v. State, 211 Ga. App. 653 (1) (440 SE2d 249) (1994). As noted in Johnson v. State, supra, the type of evidence that proves, beyond any doubt, that trial testimony was false is evidence which removes the issue of the witness’ credibility, such as evidence that shows that the witness’ trial testimony was physically impossible. See, e.g., Fugitt v. State, 251 Ga. 451, 452-453 (1) (307 SE2d 471) (1983).

Decided February 17, 2000.

Abernathy & Ballinger, Eric A. Ballinger, for appellant.

Garry T. Moss, District Attorney, Cecelia Harris, Assistant District Attorney, for appellee.

No such evidence was presented in this case. During the hearing on the extraordinary motion, Carter testified that he had lied at Peppers’ trial in order to secure a more favorable sentence for himself. In fact, Carter testified that all of his testimony against Peppers was false, including testimony that corroborated Peppers’ own admissions. Notably, Carter’s trial testimony was consistent with his statements to police and his admissions accompanying his guilty plea just days before Peppers’ trial.

After hearing Carter’s testimony, the trial court denied the extraordinary motion. The trial court found that “there is no evidence that Carter fabricated anything other than his testimony at the motion [hearing] itself.” This conclusion is supported by the record. Therefore, the trial court properly denied the motion.

Judgment affirmed.

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

       The aggravated battery conviction was merged with the aggravated assault upon sentencing.

       A few days prior to testifying at Peppers’ trial, Carter pled guilty to burglary, armed robbery, aggravated assault, and aggravated battery.


text:
    A98A0621.
    McEACHERN et al. v. MULDOVAN.
    (529 SE2d 375)
   Johnson, Chief Judge.

In this case, we reversed the trial court’s grant of summary judgment to Muldovan as to claims based upon alleged wilful and wanton misconduct. See McEachern v. Muldovan, 234 Ga. App. 152 (505 SE2d 495) (1998). Our decision having been reversed by the Supreme Court in Muldovan v. McEachern, 271 Ga. 805 (523 SE2d 566) (1999), it is hereby vacated, and the judgment of the Supreme Court is made the judgment of this court.

Judgment affirmed.

McMurray, P. J., Pope, P. J., Andrews, P. J., Blackburn, P. J., Smith, Ruffin and Eldridge, JJ, concur.

Decided February 1, 2000 —

Reconsideration denied February 18, 2000.

J. Hugh Gordon, Brian L. Causey, for appellants.

Reinhardt, Whitley & Wilmot, Glenn Whitley, for appellee.


author: Andrews, Presiding Judge. Ruffin, Judge,

text:
    A99A1765.
    CLARK et al. v. JOINER.
    (530 SE2d 45)
   Andrews, Presiding Judge.

We granted Thomas and Beverly Clark’s application for interlocutory review after the trial court denied their motion for summary judgment on John Joiner’s claim for damages from a dog bite. Because there is no evidence that the dog had ever bitten anyone before or that the Clarks knew that the dog had any propensity to bite someone, we reverse.

This case arose when Joiner went to the Clarks’ house to sell them insurance. Joiner had gotten out of his car and was walking to the house when the Clarks’ two dogs ran toward him. Joiner said the dogs did not act hostile but ran at him as if they wanted to play. When he put his hand out to keep them from jumping on him, one of the dogs, Bud, a mixed-breed 12-year-old male, grabbed his hand and bit it. After Joiner got his hand loose, the dog jumped up and bit him in the side.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). To obtain summary judgment, a defendant need not produce any evidence but must only point to an absence of evidence supporting at least one essential element of the plaintiff’s claim. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Our review of a grant of summary judgment is de novo, and we view the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmovant. Rice v. Huff, 221 Ga. App. 592, 593 (472 SE2d 140) (1996).

OCGA § 51-2-7 provides, in pertinent part:

A person who owns or keeps a vicious or dangerous animal of any kind and who, by careless management or by allowing the animal to go at liberty, causes injury to another person [,] who does not provoke the injury by his own act[,] may be liable in damages to the person so injured. In proving vicious propensity, it shall be sufficient to show that the animal was required to be at heel or on a leash by an ordinance of a city, county, or consolidated government, and the said animal was at the time of the occurrence not at heel or on a leash.

In order to support an action for damages under this statute, it must be shown that the dog was vicious or dangerous and that the owner knew it. Rowlette v. Paul, 219 Ga. App. 597 (466 SE2d 37) (1995). The dog’s nature and the owner’s knowledge are two separate issues, and proof of both is necessary for recovery. Durham v. Mooney, 234 Ga. App. 772 (507 SE2d 877) (1998).

1. The Clarks had not violated any city or county ordinance. The county ordinance at issue here provides as follows:

Animals within the County of Camden shall be adequately confined by a fence, leash or other appropriate measure, to the premises of the owner or custodian at all times. The animal shall not be permitted to leave those premises unless leashed and accompanied by the owner or custodian, and shall not be permitted to run loose on the property of others, nor on streets, alleys, beaches, parks, picnic areas, recreation areas, and/or other public sites at any time.

“Confined” is defined in the ordinance as “[Restricted by a fence or leash to the premises of the owner or custodian at all times or merely on the property of the owner or custodian whereby the animal shall not be permitted to leave those premises unless leashed and accompanied by the owner or custodian. . . .” (Emphasis supplied.) As the dog was on the property of the owner when the bites occurred, there was no violation of any city or county ordinance.

2. There is also no evidence that the Clarks knew that the dog was vicious or dangerous. Both of the Clarks testified that Bud had never bitten anyone before, and there is no evidence in the record of a previous bite. Joiner claims, however, that the Clarks were on notice because Bud acted aggressively toward an animal control officer who had previously tried to remove a hurt, stray dog in heat from underneath the Clarks’ porch. Manning, the animal control officer, testified that Bud never growled or barked at her but “just exhibited a very protective, aggressive posture.” The Clarks were not at home at the time of this incident and therefore were unaware of any problem. Clark testified at his deposition that Manning told him “that the dog didn’t act like he wanted to let her catch the old stray dog. . . .”

Georgia has traditionally adhered to the “first bite” rule in deciding whether a dog owner has knowledge that his dog has the propensity to bite someone. Hamilton v. Walker, 235 Ga. App. 635 (510 SE2d 120) (1998). There have, however, been some recent cases which look at whether the owner had “prior knowledge of his dogs’ tendency to attack humans” and “superior knowledge of his dog’s temperament.” Supan v. Griffin, 238 Ga. App. 404, 406 (519 SE2d 22) (1999).

Here, Joiner has introduced no evidence that this dog had ever bitten anyone before and also has introduced no evidence that the dog had a tendency to attack humans or that the Clarks had any knowledge aboiit the dog’s temperament that would have put them on notice that the dog would bite someone. The evidence in the record, as described above, shows nothing that would put the Clarks on notice of their dog’s vicious propensity. Therefore, the trial court erred in denying the Clarks’ motion for summary judgment on Joiner’s claim.

Judgment reversed.

Ellington, J., concurs. Ruffin, J., concurs specially.

Ruffin, Judge,

concurring specially.

I concur specially to address the continued viability of the “first bite” rule in Georgia. As the majority acknowledges, Georgia has traditionally adhered to the “first bite” rule, which holds dog owners liable for their animal’s behavior only if an owner knows that a dog has the “ ‘propensity to do the particular act (biting) which caused injury to the complaining party.’ ”

The requirement that a dog owner have prior knowledge of an animal’s vicious or dangerous nature is not a statutory one but is derived from common law. And this knowledge requirement has been strictly applied. For example, it has been held that an owner does not have prior knowledge of an animal’s vicious or dangerous nature unless the animal has “on a prior occasion, done the same act which resulted in the injury comprising the tort action.”

When applying the foregoing analysis, a “first bite” is essentially a “free bite.” Whatever may have been the wisdom at common law for exalting the rights of a dog owner over a victim of the owner’s dog, that time appears to have passed. A dog should have no greater right to a first bite than one has to a first murder. And as between the dog owner and a blameless victim, the owner is almost certainly in the better position to judge the dog’s proclivity to bite. Yet, under the “first bite” paradigm, one may be subjected, without recourse, to an animal’s first attack, and that animal’s owner has little incentive to guard against this potentially deadly event.

In Hamilton v. Walker, this court declined to adopt Senior Appellate Judge Banke’s dissent, which urged that the judicially imposed knowledge requirement be dropped in determining liability in animal bite cases. This, Judge Banke reasoned, would “[nullify] the precedential value of authority requiring that the animal previously caused the identical harm.” I believe that Judge Banke’s reasoning is sound and, if adopted, would harmonize the case law with statutory authority, which has no prior knowledge requirement. Such a move would also eliminate an archaic rule which has often been unjustly applied.

The majority in Hamilton, however, chose to retain the common law requirement that tort liability is predicated on proof of an owner’s prior knowledge of an animal’s proclivity to cause harm. Nevertheless, the authority supporting the “first bite” rule has been eroded through a recent line of cases. This court no longer requires that prior knowledge be established by “the first bite.” For example, in Supan v. Griffin, although there was no evidence of a prior bite, this court found that a question of prior knowledge of a dog’s tendency to attack humans was raised by the statement from the dog owner to a neighbor that the neighbor should “do whatever was necessary ... to keep the dogs from attacking.” We went on to find that “[w]ith proof regarding [the dog owner’s] prior knowledge of his dog’s vicious tendencies, the true test of liability ... is [the dog owner’s] superior knowledge of his dog’s temperament.”

Because of these recent developments in the law, I believe that the majority should have expressly disavowed the “first bite” rule, insofar as that rule may require that an animal have previously caused identical harm before its owner can be said to have knowledge of its vicious or dangerous tendencies. However, based upon the current state of the law, I am constrained to concur in the result here. Although there is evidence that the dog bared its teeth and exhibited an aggressive posture toward an animal control officer, the record does not indicate that the incident was described to the Clarks, who were not home at the time, by the animal control officer in such a way as to put the Clarks on notice that the dog was vicious. Joiner points to no other evidence purporting to show the Clarks had prior knowledge of the dog’s propensity to attack humans. Therefore, the trial court erred when it denied the Clarks’ motion for summary judgment.

Decided February 18, 2000.

Whelchel, Brown, Readdick & Bumgartner, J. Thomas Whelchel, for appellants.

Andrew A. Taylor, for appellee.

       The dog with Bud at the time he bit Joiner was a female that was in heat at the time.

       (Emphasis omitted.) Hamilton v. Walker, 235 Ga. App. 635 (510 SE2d 120) (1998); see also Durham v. Mooney, 234 Ga. App. 772, 773 (1) (507 SE2d 877) (1998).

        Harvey v. Buchanan, 121 Ga. 384, 385 (49 SE 281) (1904).

        Hamilton, supra at 635.

       Supra.

       Id. at 637.

       OCGA § 51-2-7.

       238 Ga. App. 404 (519 SE2d 22) (1999).

       Id. at 406.

       Id.

       See also Thurmond v. Saffo, 238 Ga. App. 687 (520 SE2d 43) (1999) (acknowledging the test is the owner’s superior knowledge of his dog’s temperament); Oertel v. Chi Psi Fraternity &c., 239 Ga. App. 147 (521 SE2d 71) (1999) (casting doubt on continued validity of “one bite rule”).