text:
    A97A1342.
    CORNWELL et al. v. CHAMBERS OF GEORGIA, INC. et al.
    (491 SE2d 132)
   Judge Harold R. Banke.

Kenneth Cornwell and Kim Cornwell sued Chambers of Georgia, Inc. and Patrick McGhee to recover for damages stemming from a workplace injury. The Cornwells appeal summary judgment awarded to Chambers of Georgia, Inc. and McGhee.

Construing the evidence, as we must, in the light most favorable to the nonmovant, the Cornwells, the record shows that the underlying action arose from an incident where McGhee, an operator of a boom truck, was attempting to position a portable light tower inside a container. Prior to McGhee’s arrival at the landfill, James Bailey, Cornwell’s supervisor at Chambers Atlanta Landfill, Inc., contacted Chambers of Georgia, Inc. to request that a boom truck and operator be sent over to load a portable light tower. Chambers of Georgia sent McGhee to do that job. It is undisputed that at the time of the incident at issue, Cornwell was an employee of Chambers Atlanta Landfill, Inc. and McGhee was an employee of Chambers of Georgia, Inc.

McGhee had been hired eight days before the incident at issue and had no prior experience in operating a boom truck. Nor had McGhee ever used a boom to load a light tower. The boom truck bore a “Danger” warning label cautioning, “An untrained operator subjects himself and others to death or serious injury. You must not operate this crane unless you have been trained in the safe operation of this crane.”

Bailey instructed Cornwell to supervise the loading of the tower and container onto a flatbed truck and told him to make certain that the equipment was properly loaded and secured. The light tower was to be loaded into a container already on the trailer of a transport truck. Because the light tower was too wide to fit into the container, it had to be lowered into the container from above, then angled inside the container. McGhee was unable to accomplish the loading without assistance because he was not able to see inside the dumpster which was located 11 or 12 feet above his head. Cornwell positioned himself inside the container to give hand signals to McGhee so that the tower could be properly aligned. He and McGhee maintained eye contact with each other at all times during the operation. Cornwell signaled McGhee to go up first then left, in effect directing him to take the light tower away from his position in the container. McGhee apparently pulled the wrong lever because the tower did not move in an upward direction but moved laterally striking the outside of the container then going directly at Cornwell, knocking him down.

Cornwell appeals the trial court’s determination that the defense of assumption of the risk precluded his action against Chambers of Georgia and McGhee as a matter of law. Held:

In their sole enumeration of error, the Cornwells contend that the trial court misapplied the principle of assumption of risk, because Cornwell did not knowingly and voluntarily assume the risk of injury. We agree. The defense of assumption of the risk of danger applies when the plaintiff, “with a full appreciation of the danger involved and without restriction of his freedom of choice either by the circumstances or by coercion, deliberately chooses an obviously perilous course of conduct.” Adams & Adams, Ga. Law of Torts (1996 ed.), § 19-1. “[A] defendant asserting an assumption of the risk defense must establish that the plaintiff (1) had knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed himself to those risks.” (Footnote omitted.) Vaughn v. Pleasent, 266 Ga. 862, 864 (1) (471 SE2d 866) (1996). The knowledge requirement does not refer to a comprehension of general, non-specific risks. Id. Rather, the knowledge that a plaintiff who assumes the risk must subjectively possess is “that of the specific, particular risk of harm associated with the activity or condition that proximately causes injury.” (Footnote omitted.) Id. For the record to support the trial court’s conclusion that Cornwell assumed the risk of his injury from the boom, the evidence must conclusively show that Cornwell knew of the specific danger, comprehended the risk to his person, and that despite this knowledge, he voluntarily chose to accept the risk. Turner v. Sumter Self Storage Co., 215 Ga. App. 92, 95 (3) (449 SE2d 618) (1994). Compare Daves v. Shepherd Spinal Center, 219 Ga. App. 835, 836 (1) (466 SE2d 692) (1996).

The evidence shows that the parties dispute the danger inherent in the manner in which Cornwell positioned himself while acting as a spotter for McGhee. Although the appellees claim that Bailey and Cornwell discussed the safety issue in advance, the record shows that Bailey did not anticipate any problems. Although the tower’s placement inside the container would be a tight fit from side to side, there would be several feet of clearance from end to end. Bailey admitted that he assumed that a competent and experienced boom operator had been assigned. Bailey also acknowledged that “we relied totally on the operator’s proficiency.”

Cornwell testified that he had stationed himself at what he believed to be a safe distance from where the light tower would be placed — five to eight feet away from him. According to Cornwell, he did not know that McGhee lacked experience and training as a boom operator and, in fact, expected that a properly trained and experienced operator had been supplied for the job. Cornwell also indicated that he had no idea that McGhee would disregard his hand signals. David Richter, Cornwell’s former supervisor and a former manager of Chambers Atlanta Landfill, Inc., testified that “based on my experience over the years in loading numerous pieces of equipment in such 20-yard containers, it was neither inherently dangerous nor improper for Mr. Cornwell to be in such a container in an effort to guide the light tower while it was being loaded into the 20-yard container.” According to Richter, two portable light towers could have been safely loaded in a 20-yard container like the one here. Based on this testimony, we cannot say that the defendants satisfied their three-prong burden under Vaughn, supra, and proved that Cornwell assumed the risk of his injury. Vaughn, 266 Ga. at 864 (1).

Decided August 8, 1997

Hollberg, Weaver & Kytle, James W. Kytle, Johnson & Kane, Stephen R. Kane, for appellants.

Moore, Ingram, Johnson & Steele, William R. Johnson, Jeffrey A. Watkins, Scott G. Wagner, for appellees.

Whether a party assumed the risk of his injury is a jury question that should not be decided by summary adjudication unless the defense is “conclusively established by plain, palpable and undisputed evidence. [Cit.]” Turner, 215 Ga. App. at 94 (3). This is not such a case. A jury must decide whether Cornwell assumed the risk of injury or was contributorily negligent in the manner in which he positioned himself inside the container. Holbrook v. Prescott, 166 Ga. App. 588, 589 (305 SE2d 156) (1983). See McDonald v. Coca-Cola Enterprises, 220 Ga. App. 567 (469 SE2d 805) (1996).

Judgment reversed.

Ruffin and Eldridge, JJ, concur.

       At the time of the incident, Chambers Atlanta Landfill, Inc. and Chambers of Georgia, Inc. were two separate Georgia corporations, having separate offices, directors, employees, and business purposes. Cornwell received workers’ compensation benefits from Chambers Development Company. Appellee Chambers of Georgia, Inc. claims that because it is a wholly owned subsidiary of Chambers Development Company, Cornwell’s claims were barred by the exclusive remedy provision of the Georgia Workers’ Compensation Act. The trial court did not resolve this issue.


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    A97A1349.
    ROWLAND v. THE STATE.
    (491 SE2d 119)
   Beasley, Judge.

Claiming ineffective assistance of counsel, failure of the court to give self-defense and affray jury charges, and insufficient evidence, Thomas Rowland appeals his conviction of aggravated assault (OCGA § 16-5-21). This follows an unsuccessful motion for new trial on these grounds.

Construed in favor of the verdict, the evidence shows that on October 28, 1994, Rowland completed his last day of work for Southern Ambulance Builders. He and Michael Lego, with whom he had a history of confrontations, had worked there for over nine years. Within a half-hour, Rowland returned to the workplace to confront Lego about Lego’s two-cent contribution to a fund for Rowland’s going-away cake. As Lego emerged from the workplace, Rowland threw the two pennies at him and approached screaming. Lego retreated to his truck. Because Southern Ambulance prohibited fighting on the premises, Lego told Rowland that if he wanted to fight, they would have to go elsewhere.

Before Lego could leave, Rowland blocked his truck with Rowland’s car. As Lego was trying to start his truck, Rowland approached with a utility knife (also known as a box cutter) with its razor blade exposed and threatened to cut off Lego’s head. Lego backed away from Rowland, asked him to stop, and went from the driver’s door around the front of the truck to the passenger’s side. Rowland followed with the knife, and Lego picked up a tire iron from the back of his truck. Despite Lego’s threats with it, Rowland approached. Lego dropped the tire iron, lunged at Rowland, and grabbed his wrists to overpower him. The men struggled, and Rowland bit Lego twice on the neck and cut him with the knife. Nearby witnesses pulled the two men apart after they fell to the ground.

Rowland was indicted for aggravated assault “by cutting [Lego] with [a] box cutter.” His primary defense was that he never cut Lego with the knife and that Lego’s injuries resulted from the two men falling to the ground. Rowland also testified that Lego invited him to fight, that he did not pull out the box cutter until he mistakenly thought he saw Lego reach into his truck for a gun, and that he held the knife down at his side and did not expose the blade until Lego threatened him with the tire iron. He conceded that he simply could have walked away at any point prior to Lego grabbing his wrists and that at least one bystander pleaded with him to cease pursuing Lego. No party submitted written jury charges. The court charged the jury with all instructions orally requested by Rowland’s counsel. Nonetheless, he reserved exceptions.

At the hearing on the motion for new trial, the witnesses were Rowland, his trial counsel, and five witnesses who did not testify at trial. Finding the trial counsel’s performance reasonable and any alleged errors harmless, the court denied the motion.

1. Failure to charge as to self-defense and affray is enumerated as error. Rowland argues that self-defense was his only defense and that affray should have been charged as a lesser-included offense of aggravated assault.

“ A trial judge never errs in failing to instruct the jury on a lesser-included offense where there is no written request to so charge.’ [Cit.]” Gadson v. State, 264 Ga. 280, 281 (2) (444 SE2d 305 (1994). See Cavender v. State, 208 Ga. App. 61, 64 (3) (429 SE2d 711 (1993) (absent written request to charge, no error in failing to charge on battery as lesser-included offense of aggravated assault). The same holds true for a charge on self-defense. Benefield v. State, 204 Ga. App. 87 (418 SE2d 447) (1992). The exception is where self-defense is the defendant’s sole defense. Id. But where the record ir an aggravated assault case reveals that the defendant denies stabbing the victim, as here, self-defense is not the sole defense, and thf exception does not apply. Id.

2. Rowland claims the verdict was contrary to the weight of the evidence and to the principles of justice and equity. Such matters are left to the “sound discretion” of the trial court. OCGA § 5-5-21. See OCGA § 5-5-20; Lisle v. Willis, 265 Ga. 861, 864 (3) (463 SE2d 108; (1995) (“The trial court’s decision on a motion for a new trial will be upheld on appeal unless it was an abuse of discretion”); Witt v. State 157 Ga. App. 564, 565 (2) (278 SE2d 145) (1981) (“The denial of a nev trial on the ground that the verdict is contrary to the evidence addresses itself only to the discretion of the trial judge”).

Lego’s testimony and the photographs of his injuries supported s finding that Rowland cut him with the box cutter. The testimony o: nearby witnesses as well as Rowland’s own testimony established that he aggressively pursued Lego with the box cutter despite entreaties and opportunities to stop. A new trial was not required.

3. The remaining enumerations all arise out of the claim of ineffective assistance of counsel. “To be successful with [such] a claim . . ., a defendant must demonstrate that his attorney’s performance was deficient and that the deficiency prejudiced the defense. Tc accomplish this, the defendant must overcome the strong presumption that his attorney’s performance fell within a wide range of reasonable professional conduct and that the attorney’s decisions were made in the exercise of reasonable professional judgment. The reasonableness of the conduct is viewed at the time of trial and undei the circumstances of the case. [Cits.]” Berry v. State, 267 Ga. 476, 479 (4) (480 SE2d 32) (1997). See Smith v. Francis, 253 Ga. 782 (1), 783-784 (325 SE2d 362) (1985). “The burden is on the defendant to establish his claim of ineffective assistance of counsel. [Cits.]” Garrett v. State, 196 Ga. App. 872, 874 (1) (397 SE2d 205) (1990). “ A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erronedus. (Cit.)’ [Cit.]” Blackwood, v. State, 224 Ga. App. 486, 488 (2) (480 SE2d 914) (1997).

(a) The first question is whether trial counsel was ineffective in failing to request a jury charge on self-defense. Counsel explained that because the primary defense was that Rowland did not cut Lego, arguing self-defense would have been inconsistent, for self-defense seeks to justify or excuse the wrongful act, and here the wrongful act was denied. Rowland testified that he also understood this was his primary defense.

Nevertheless, he argues that trial testimony showed that in fact he acted in self-defense (e.g., Lego was bigger, Rowland did not pull out the box cutter until he thought Lego was reaching for a gun, Rowland did not expose the blade of the box cutter until Lego threatened him with the tire iron, etc.). Rowland maintains that a defense that he did not cut Lego was doomed, for the aggravated assault statute does not require that actual cutting or physical contact occurred, but only that Rowland used the knife to place Lego in reasonable apprehension of immediately receiving a violent injury. See OCGA § 16-5-21 (a) (2).

Trial counsel explained that the indictment, which specifically alleged that Rowland committed the aggravated assault when he cut Lego with the box cutter, did not allege a threat to use the knife and thus required proof of actual cutting, else the proof would vary fatally from the indictment. The trial court in fact charged the jury that to convict Rowland the State was required to prove every material allegation in the indictment beyond a reasonable doubt.

Counsel was correct. “The proof at trial must correspond with the allegations [of the indictment] so that defendants are notified of the charges brought against them. This notice enables them to present their defense without surprise and to protect them against a second prosecution for the same offense.” (Footnote omitted.) Dukes v. State, 265 Ga. 422 (457 SE2d 556) (1995). Thus, “ ‘(i)f an indictment alleges particular facts as constituting an element of the charged crime, there is a variance if the trial judge admits evidence that makes out the element in a different manner.’ [Cit.]” Walker v. State, 146 Ga. App. 237, 242 (1) (b) (246 SE2d 206) (1978).

In aggravated assault cases, the jury can convict based only on “the specific act charged in the indictment (i.e., aggravated assault by shooting [the victim] with a handgun).” Griffin v. State, 214 Ga. App. 813, 816 (2) (449 SE2d 341) (1994). In Griffin there was a fatal variance because the evidence was that defendant attacked the victim with shoe-clad feet and fists. The conviction in Blige v. State, 208 Ga. App. 851 (2), 852-853 (432 SE2d 574) (1993), was reversed because the indictment charged assault with a wall clock whereas the jury charge was assault with intent to rob or assault with a wall clock. A mere showing that Rowland threatened Lego with the box cutter would have fallen short of the indictment’s charge of cutting Lego with the box cutter. Trial counsel could reasonably defend this charge with the argument that no cutting occurred. Thus, the court did not err in finding no deficiency in counsel’s professional judgment and conduct.

(b) Arguing next that counsel was ineffective in failing to request a jury charge as to the misdemeanor of affray, Rowland asserts that affray is a lesser-included offense of aggravated assault. “Affray, as statutorily defined, is not a lesser included offense of aggravated assault or even simple battery.” Haun v. State, 189 Ga. App. 884, 885 (3) (377 SE2d 878) (1989).

(c) Rowland complains that counsel failed to instruct him regarding his right not to testify and to prepare him properly for his testimony and cross-examination. Trial counsel testified that he told Rowland of his right and that he met with Rowland before trial and told him to tell the truth, to dress appropriately, to keep his answers short and simple, to avoid testifying on tangential subjects, to expect tough questions on cross-examination, and to explain his answers if necessary. This, and other aspects of trial preparation shown by the evidence, does not constitute ineffective assistance.

(d) Ineffective assistance is claimed in the failure to subpoena witnesses and to interview them in sufficient time for proper preparation and presentation of the defense. Counsel testified he subpoenaed all witnesses identified to him by Rowland. Further, Rowland told counsel that subpoenas were unnecessary, for Rowland would have the witnesses come in any case. Three of the five “missing” witnesses in fact came to trial and were interviewed by counsel beforehand. Rowland never identified to counsel another alleged “missing” witness. No ineffective assistance appears.

(e) Rowland states that trial counsel was ineffective in failing to call these five witnesses to testify on his behalf, but only three came to trial. One told counsel he had seen Rowland expose the blade from the outset, which would have contradicted the defense testimony that the blade was not exposed until the tire iron was raised. Another told counsel he could not see what was in Rowland’s hand. The remaining three witnesses could give only cumulative testimony and might have undermined Rowland’s defense. In view of their limited value, counsel decided not to call these witnesses so that he could argue to the jury last, which he considered a “very coveted advantage.” The trial court’s finding that trial counsel acted within the range of professional conduct and judgment was not clearly erroneous.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.

Decided August 8, 1997.

Wesley T. Leonard, for appellant.

Peter J. Skandalakis, District Attorney, Lynda S. Engel, Assistant District Attorney, for appellee.

       Rowland invokes only the Sixth Amendment to the United States Constitution, and not any rights guaranteed in the Georgia Constitution. See Stephenson v. State, 206 Ga. App. 273 (424 SE2d 816) (1992) (court will not sua sponte consider state constitutional standards for assistance of counsel).


author: McMURRAY, Presiding Judge.

text:
    A97A1393.
    KINGREE v. THE STATE.
    (491 SE2d 123)
   McMURRAY, Presiding Judge.

Defendant was charged in an accusation with violating the terms of his Habitual Violator Probationary Driver’s License under OCGA § 40-5-58 (e) (4) “by operating a motor vehicle for a purpose other than business purposes.” He moved to suppress based on the absence of a reasonable articulable suspicion for the police to stop his motor vehicle. Following the denial of that motion, defendant submitted to a bench trial on stipulated facts. The Superior Court of Newton County found defendant guilty, and this appeal followed. Defendant enumerates the denial of his motion to suppress and the sufficiency of the evidence. Held-.

1. “While the trial court’s findings as to disputed facts in a ruling on a motion to suppress will be reviewed to determine whether the ruling was clearly erroneous ([cits.]), where the evidence is uncontradicted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review. [Cits.]” Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474). In the case sub judice, only the arresting officer testified at the suppression hearing, and his evidence would authorize the following facts:

Officer Chris Cain of the Covington Police Department was assigned to the Special Response Unit, which responds to calls in “high crime areas, drug areas, or burglary stakeout details.” On the day in question, Officer Cain was on “active patrol ... in Harris-town[, after the department] had been receiving information of narcotics transactions occurring during the early to mid-morning hours.” Officer Cain had personally received twenty-five or thirty reports over a nine-month period. The officer drove a marked patrol car with blue lights on the top. He observed a light blue station wagon, “which was making a turn on Hardwick Circle.” Officer Cain also observed “two . . . males standing on the corner . . . and the vehicle pulled up. . . . These two . . . males were motioning for the vehicle to turn around — or to back up. . . .” In Officer Cain’s experience, “it’s common practice for people selling narcotics to have lookouts.” These lookouts will “say five zero, 911, Dan-O,. . . things of that nature, to let the people down the street know, as well as to signal them, that there’s a police officer or law enforcement folks coming.” Officer Cain affirmed he saw “such signals exchanged . . . between the people on the corner and the people in the vehicle.” “Those two . . . males were standing there on the corner with their arms . . . in a motion which [Officer Cain] considered to be trying to tell somebody to back up.”

The driver saw the officer and then “turned and backed up on Hardwick Circle.” Officer Cain identified the driver as a white male, with “a black male in the passenger side.” Officer Cain had to wait for traffic, and as he crossed the street, he saw the station wagon “sitting in the middle of the street. . . .” When the driver saw Officer Cain, he “started back in [the opposite] direction and passed [the patrol car].” Officer Cain observed “there was a black male that was running back between . . . two houses. . . .” That is, “when [Officer Cain] pulled around the corner [he saw] one occupant of the vehicle [and] another person running off to the left.” That was “consistent with that area, as far as people [trying] to conceal activity by either running, ... or backing up in a motor vehicle to put somebody out.” The officer knew that “East Metro Narcotics has made several arrests down there, [including] some drive-up purchases of narcotics which have resulted in convictions. . . .” In Officer Cain’s experience, “when folks run from a high crime area . . ., there’s something they’re trying to conceal.”

Based on the totality of the circumstances, Officer Cain concluded he had just interrupted a possible drug sale. By the time he returned to the area, the two men on the corner were gone. Officer Cain “stopped the vehicle, asked the driver for his license and he [defendant] produced a[n] habitual violator probationary license.”

2. “Although an officer may conduct a brief investigative stop of a vehicle (see Delaware v. Prouse, 440 U. S. 648 (99 SC 1391, 59 LE2d 660) (1979)), such a stop must be justified by ‘specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.’ Terry v. Ohio, 392 U. S. 1, 21 (88 SC 1868, 20 LE2d 889) (1968).” Vansant v. State, 264 Ga. 319, 320 (2), supra. The essential concept is “to take the totality of the circumstances into account and determine whether the detaining officer has ‘a particularized and objective basis for suspecting the particular person stopped of criminal activity.’ United States v. Cortez, 449 U. S. 411, 417-418 (101 SC 690, 66 LE2d 621) (1981).” Id. “[A] founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing. During this detention, the police, for example, may attempt to determine the person’s identity[ ] and ask for a display of driver’s license and vehicle registration.” (Citations and punctuation omitted.) Nowlin v. State, 225 Ga. App. 447, 448 (2), 449 (484 SE2d 14).

Decided August 8, 1997.

Strauss & Walker, John T. Strauss, for appellant.

Alan A. Cook, District Attorney, Jennifer E. Greene, Assistant District Attorney, for appellee.

In the case sub judice, Officer Cain’s stated suspicions were that he had interrupted an attempted purchase of narcotics. In our view, based upon the articulated facts, namely, the location where drug arrests previously had been made, the odd gestures of the two men on the corner, defendant’s backing his car away upon espying the officer, the apparent flight of the passenger, when coupled with all rational inferences from those facts, authorized the trial court’s conclusion that Officer Cain’s suspicions of a possible drug sale were entirely reasonable and not arbitrary or harassing. Consequently, the trial court did not err in denying defendant’s motion to suppress.

3. Based upon the stipulated evidence, including the fact that defendant’s driving was unrelated to the limited lawful purposes of an habitual violator’s probationary driver’s license, the evidence was sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) to authorize the trial court’s judgment that defendant is guilty, beyond a reasonable doubt, of violating OCGA § 40-5-58 (e) (4) as alleged in the accusation.

Judgment affirmed.

Beasley and Smith, JJ, concur.


author: McMurray, Presiding Judge.

text:
    A97A1440.
    MOFFETT v. THE STATE.
    (491 SE2d 126)
   McMurray, Presiding Judge.

Defendant was charged with driving under the influence of drugs, in violation of OCGA § 40-6-391 (a) (2). At the hearing on defendant’s motion to suppress, Officer Mark Fenniger of the Coweta County Sheriff’s Office testified he was advised that defendant’s black pickup truck, believed to be transporting narcotics, was approaching the officer’s location from two miles down the road. When Officer Fenniger stopped the vehicle, he detected the strong odor of marijuana coming from defendant, whose eyes were “very red — bloodshot.” Defendant was issued a citation for not having his license on his person. A trained dog alerted to the “presence of some type of drugs. . . .” Marijuana was found on the passenger seat of the vehicle. Defendant was charged with driving under the influence of drugs and read his implied consent warning. Three times, defendant agreed to submit to a breath test but refused the urine test designated by Officer Fenniger.

Decided August 8, 1997.

Brian R. Moffett, pro se.

John H. Cranford, Solicitor, for appellee.

At the conclusion of the suppression hearing, defendant’s motion was denied. The parties then proceeded to treat the hearing as a bench trial. At the conclusion of the trial, defendant’s counsel entered a plea of nolo contendere in open court and in the presence of defendant. He was sentenced to 12 months, to be served on probation. Proceeding pro se, defendant brings this direct appeal. He enumerates the denial of his motion to suppress, the sufficiency of the evidence and the lack of a trial. Held:

Entering a plea of nolo contendere is a privilege rather than a right; it constitutes a plea of guilty except that it cannot work any civil disqualification upon the defendant. Fortson v. Hopper, 242 Ga. 81, 82 (247 SE2d 875). When the trial court accepts the plea of nolo contendere, it is empowered to impose whatever sentence is provided by law for the offenses, just as if the defendant had been convicted by a jury or entered a plea of guilty. Id. at 83. A valid plea of guilty or nolo contendere will waive any defenses and objections save whether such plea was voluntarily entered by defendant and accepted after proper inquiry by the trial court. Chambers v. State, 210 Ga. App. 71 (435 SE2d 291). In the case sub judice, defendant presents no enumeration of error challenging the validity of his plea of nolo contendere to driving under the influence of drugs. In fact, he made no objection on the record before the trial court acted on the nolo contendere plea his counsel entered in open court. See Paino v. State, 209 Ga. App. 87, 88 (432 SE2d 599). Rather, he ratified that plea by entering it on the back of the uniform traffic citation and signing his name. Consequently, that plea must be deemed to have waived all defenses and objections, including those alleged errors actually enumerated.

Judgment affirmed.

Beasley and Smith, JJ, concur.


author: Birdsong, Presiding Judge.

text:
    A97A1482.
    MITCHELL v. THE STATE.
    (491 SE2d 127)
   Birdsong, Presiding Judge.

Andre Mitchell appeals his conviction of aggravated assault by shooting the averred victim, Morris, with a Colt pistol; he enumerates two errors. Held:

1. Relying upon Davis v. Alaska, 415 U. S. 308 (94 SC 1105, 39 LE2d 347), appellant contends the trial court erred in not allowing the defense to introduce in evidence the juvenile court adjudications of the witnesses Bacon and Kindley for impeachment purposes. We disagree.

The trial court’s in camera inspection revealed the following: Although the witness Bacon had several juvenile petitions filed against him, they were all dismissed without adjudication; he had no “delinquency or unruly adjudications” whatsoever. There had been four petitions filed against the witness Kindley. Two. of the petitions had been dismissed without adjudication. In 1993, a petition was filed against Kindley for loitering and obstruction of a law enforcement officer by fleeing; a second petition was filed against him for shoplifting. He was adjudicated delinquent in February 1993 on both petitions, but the adjudications were both dismissed after six months. Both of these incidents occurred before the incident giving rise to the aggravated assault charge here at issue. There is no pending adjudication or any form of probation pending against Kindley.

Davis, supra, held that a pending delinquency adjudication for burglary was admissible as a particular attack on a witness’ credibility, i.e., an attack directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand. Davis, supra, did not hold or suggest that the constitution conveys a right in every case to impeach the general credibility of a witness through cross-examination about his past delinquency adjudications or criminal convictions. Baynes v. State, 218 Ga. App. 687, 690 (4) (463 SE2d 144), citing Davis, supra, concurring opinion at 321. In this case, neither juvenile witness was under probation or had any form of delinquency or unruly juvenile proceedings pending against him at I the time he testified in the case at bar. The trial court did not err in refusing to allow appellant to cross-examine the witnesses regarding their past juvenile records. Baynes, supra; see also Farley v. State, 225 Ga. App. 687 (484 SE2d 711) (physical precedent only) (a dismissed charge or old conviction could not be the basis of a motive to shade or distort testimony); compare McBee v. State, 210 Ga. App. 182 (1) (435 SE2d 469).

2. Appellant asserts the trial court erred in not allowing appellant’s counsel to ask a witness, Jerry Rogers, the following question on cross-examination: “If Patrick [Kindley] says he fired the weapon, does that change your opinion?” Appellant contends in this enumeration of error that this question was “in reference to Patrick [Kindley’s] opinion that whoever started shooting was still firing all of the shots.” At the point in time when this question was asked Kindley had not yet testified.

This question in its effect would cause the witness, Rogers, to engage in speculation regarding the weight and credibility to be given to certain expected testimony of Patrick Kindley, who had not yet testified. Considering that the trial court allowed appellant great latitude in cross-examining this witness regarding his knowledge of the shooting incident and about his opportunity to view the defendant shooting the weapon, this is not a situation where the trial court cut off all inquiry regarding a subject that the defense was entitled to explore during a thorough and sifting cross-examination. This question did not directly seek information regarding the shooting incident from the witness, nor does appellant contend on appeal that the question was a necessary step in showing bias or prejudice against appellant by the witness; rather this question was posed presumptively to test the degree of certainty the witness had in the accuracy of his own trial testimony. Appellant was not prevented from exploring this latter avenue of inquiry by posing other effective questions directed to the witness to test his degree of confidence in his own testimony or as to the accuracy thereof. While the degree of certainty that a witness has in his own testimony is highly relevant and subject to searching inquiry during cross-examination, the weight and credibility which a witness attributes to the expected testimony of another witness generally are irrelevant as, when and if such other testimony occurs, its weight and credibility are a matter within the sole province of the factfinder. Where a trial court determines that proposed cross-examination would induce irrelevant testimony, the court does not abuse its discretion in denying such questioning. Miller v. State, 260 Ga. 191, 194 (6) (391 SE2d 642). Under the totality of the circumstances, we find that the trial court did not err in restricting appellant in asking the particular question here at issue.

Decided August 8, 1997.

Further, assuming without deciding that the trial court erred in restricting this line of inquiry on cross-examination, we find that such error is harmless in view of the overwhelming evidence of appellant’s guilt and the high probability, arising from the state of the evidence, the scope of the permissible cross-examination of the witness, and the fact that this witness’ testimony was substantially corroborative of the testimony of other eyewitnesses regarding who fired the shots at issue, that any error did not contribute to the verdict and judgment of conviction. Compare Garcia v. State, 267 Ga. 257, 259 (7) (477 SE2d 112); Byrd v. State, 262 Ga. 426, 427 (2) (420 SE2d 748); Letlow v. State, 222 Ga. App. 339, 343 (2) (474 SE2d 211).

For each of the above reasons, appellant’s second enumeration of error is without merit.

Judgment affirmed.

Ruffin and Eldridge, JJ, concur.

John E. Pirkle, for appellant.

Dupont K. Cheney, District Attorney, Daniel E. Ellis, Assistant District Attorney, for appellee.


text:
    A97A1516.
    McKINNEY v. ALEXANDER PROPERTIES GROUP, INC.
    (491 SE2d 131)
   McMurray, Presiding Judge.

Plaintiff Alexander Properties Group, Inc. d/b/a LaVista Crossing petitioned the State Court of DeKalb County for a dispossessory warrant, alleging that defendant Linda McKinney is plaintiff’s tenant in possession who “fails to pay rent now due. . . .” Defendant timely answered, contending that she “did not receive a notice that [her] rent was past due [and that she] had a great problem with [her] new bank and checking acct.” Also, she had “complained many times about [her] apartment not having enough heat. . . .” Defendant “appeared for [a bench] trial,” after which the trial court granted the writ of possession and ordered defendant to pay $1,355 in accrued rent plus $150 court costs. In a supplemental order, effective “in the event of an appeal,” the trial court ordered defendant to pay $1,875 into the registry of the court by the filing date and $625 by the fifth day of each month thereafter. This direct appeal followed. Held:

In her enumerations of error, defendant contends the trial court erred in granting monetary damages because the evidence showed that “the unit in question was not livable or up to code due to the lack of heat. . . .” Also, she urges the trial court further “erred in granting [plaintiff’s] motion to evict for lack of proper notice. . . .” But each of these enumerations is dependent upon the evidence adduced at trial. There is no transcript of the bench trial and no attempt to employ a statutory substitute for a transcript.

We are “unable to consider the merits of [each] contention for there is no transcript of the proceedings below nor any attempt to recreate the record as contemplated by OCGA § 5-6-41 (g) and (i). In order for the appellate court to determine whether the judgment appealed from was erroneous, it is the duty of the appellant to include in the record those items which will enable the appellate court to perform an objective review of the evidence and proceedings. OCGA § 5-6-41 (c). ‘Thus, where the transcript is necessary(, as in the case sub judice,) and appellant omits it from the record on appeal (or fails to submit a statutorily authorized substitute), the appellate court must assume the judgment below was correct [as supported by the evidence] and [so] affirm. [Cits.]’ Brown v. Frachiseur, 247 Ga. 463, 464 (277 SE2d 16).” Deen v. United Dominion Realty Trust, 218 Ga. App. 443 (1), 444 (462 SE2d 384). In the case sub judice, due to the absence of a transcript or a statutorily authorized substitute, we must assume the evidence supported the determination that defendant received proper and adequate notice and further assume the evidence supported the $1,355 award of accrued rent. Consequently, these enumerations present nothing for review.

Decided August 8, 1997.

Linda McKinney, pro se.

Russell D. Mays, for appellee.

Judgment affirmed.

Beasley and Smith, JJ, concur.


text:
    A97A1554, A97A1555.
    SHERRER v. CITY OF PULASKI et al.; and vice versa.
    (491 SE2d 129)
   McMurray, Presiding Judge.

Plaintiff John Sherrer brought this action for declaratory judgment against the defendant City of Pulaski, Georgia, and its mayor and city council members, alleging that on September 20, 1993, the council “voted to prohibit all sales of beer and wine in the City Limits,” allegedly without prior published notice of the meeting. The complaint further alleged that the “City of Pulaski does not meet the minimum standards for maintaining a charter as a City under OCGA § 36-30-7.1.” Specifically, plaintiff alleged that all municipal services such as law enforcement, road and street construction and maintenance, solid waste collection and disposal, and recreational services were actually performed by Candler County, as “would be provided for any unincorporated portion of Candler County. . . .” Plaintiff demanded that the City Charter be dissolved and that any ordinance adopted at the meeting of September 20, 1993, be declared “void upon its face.”

Defendants denied the material allegations and, after discovery, moved for summary judgment. As to any violation of the Open Meetings Act, OCGA § 50-14-1 et seq., defendants argued that plaintiffs claim was time barred. As to plaintiffs contention that the City should be declared an inactive municipality, defendants supported their motion with the affidavit of defendant Monte Tillman, who was elected Mayor of the City of Pulaski in 1989. Mayor Tillman identified the wine and malt beverages ordinance adopted at the September 20, 1993 city council meeting and also identified a document dated June 28, 1994, in which the “City of Pulaski reduced to writing its prior oral agreement with Candler County, wherein Candler County agreed to provide the City of Pulaski with law enforcement, road construction and maintenance, solid waste collection, and recreational services in return for the city remitting its one percent sales tax revenue to the county.” Mayor Tillman deposed he “completed the municipal certification forms for the City of Pulaski and forwarded them to the Georgia Department of Community Affairs,” that the City “holds at least six regularly officially recorded public meetings each year,” and that the City “qualifies for and holds regular municipal elections as provided by law.” Defendants also submitted the affidavit of John Ellis, a consultant to the Georgia Department of Community Affairs. Ellis “reviewed the municipal certification forms submitted by the City of Pulaski.” “Based on [that] review of the City of Pulaski’s application . . ., [Ellis] determined the City of Pulaski met the requirements of O.C.G.A. § 36-30-7.1 and placed [the City] on the list to be certified as an active municipality with the Secretary of State.” In a letter dated November 15, 1994, Mayor Tillman was informed by Commissioner Jim Higdon of the Department of Community Affairs that the City of Pulaski “is a Certified Active Municipality in the State of Georgia.”

Although plaintiff rejoined that the contract for services between Candler County and the City was void for lack of consideration, the trial court concluded that the City “does meet all the requirements of an active municipality,” and granted defendants’ motion for summary judgment. In Case No. A97A1554, plaintiff appeals, and in Case No. A97A1555, the defendant City, its mayor and council members cross-appeal. Held'.

Case No. A97A1554

1. In three related enumerations, plaintiff contends the trial court erred in granting summary judgment. He argues that the trial court misplaced the burden of proof, misconstrued OCGA § 36-30-7.1, and erroneously failed to declare the City’s contract for services to be void. We disagree.

(a) “An active municipality is any incorporated municipality in this state the governing body of which meets each of the following minimum standards: (1) Provides at least three of [certain specified] services, either directly or by contract[;] ... (2) Holds at least six regular, monthly or bimonthly, officially recorded public meetings within [a] 12[-month period]; . . . and (3) Qualifies for and holds a regular municipal election as provided by law. . . .” (Emphasis supplied.) OCGA § 36-30-7.1 (b). Here, the affidavit of Mayor Tillman that the City holds regular officially recorded meetings and qualified elections is uncontradicted. Consequently, there is no genuine issue of material fact whether the City meets the criteria established in subsection (b) (2) and (3) of OCGA § 36-30-7.1.

(b) In order for the City of Pulaski to qualify as an active municipality it must provide, either directly or by contract, at least three of the following services: law enforcement; fire protection and fire safety (including volunteers); road and street construction or maintenance; solid waste management; water supply or distribution or both; waste water treatment; storm water collection and disposal; electric or gas utility services; and enforcement of building, housing, plumbing, electrical, and other similar codes. OCGA § 36-30-7.1 (b) (1) (A) through (I).

There is no evidence to contradict the affidavit of Mayor Tillman that the City of Pulaski contracts with Candler County to provide “[l]aw enforcement service from the Candler County Sheriff’s Department^] Road and street construction and maintenance by the Candler County Road Department^] Solid waste collection and disposal by the Candler County Solid Waste Department [and] Recreational services by the Metter-Candler Recreation Department.” According to the signed agreement between the City and Candler County, the County provides these services “[i]n consideration for the County’s receipt of Pulaski’s one percent sales tax program. . . .” Consequently, plaintiff’s argument that this agreement is void for lack of consideration is without merit.

Nevertheless, plaintiff argues the consideration recited is not sufficient, arguing that because “Candler County is required to provide certain minimum services for all of its citizens,” the County is only agreeing to perform services it would have performed anyway for citizens in unincorporated Candler County. We find this unpersuasive. “No county may exercise any of the powers listed in subparagraph (a) of this Paragraph or provide any service listed therein inside the boundaries of any municipality or any other county except by contract with the municipality or county affected.” (Emphasis supplied.) 1983 Ga. Const., Art. IX, Sec. II, Par. Ill (b) (1). Based upon defendants’ uncontradicted showing that the City of Pulaski meets the requirements of an active municipality under OCGA § 36-30-7.1 (b), the trial court correctly granted summary judgment.

Case No. A97A1555

2. Our affirmance in the main appeal, Case No. A97A1554, renders moot the issue raised in this cross-appeal. OCGA § 5-6-48 (b) (3); Kubler v. Goerg, 197 Ga. App. 667, 671 (5) (399 SE2d 229). Consequently, Case No. A97A1555 is dismissed. Caring Hands v. Dept. of Human Resources, 222 Ga. App. 608, 610 (3) (475 SE2d 660).

Judgment affirmed in Case No. A97A1554. Appeal dismissed in Case No. A97A1555.

Decided August 8, 1997.

Thomas M. Odom, Evelyn S. Hubbard, for appellant.

Jones &-Smith, David N. Nelson, for appellees.

Beasley and Smith, JJ., concur.


author: Johnson, Judge.

text:
    A97A1117.
    In the Interest of S. M. L. et al., children.
    (491 SE2d 186)
   Johnson, Judge.

In. a criminal trial which is not the subject of this appeal, Michael Loftus was convicted of molesting his three daughters, S. M. L., T. L. L., and W. L. L. Thereafter, the girls’ mother petitioned the juvenile court to terminate his parental rights, based on his convictions of molesting the children and on allegations that he failed to provide proper parental care, control and support. See OCGA § 15-11-81. An evidentiary hearing was held in which the father, among others, testified and was represented by counsel. The juvenile court issued an order terminating the father’s parental rights after finding clear and convincing evidence of his parental misconduct or inability. The court based its decision on evidence that the father molested his three daughters, failed to provide a stable or suitable home environment for the children, abandoned the mother and children, failed to provide the children with food or appropriate clothing, abused drugs, used his earnings to buy cocaine instead of food or clothing for the children, and threatened to kill the children’s mother. He appeals.

1. The father contends that the trial court erred in allowing a child protective services investigator, a women’s shelter manager, a school counselor, and a therapist to testify as to the contents of statements made by the children when the reliability of the statements had not been established. We disagree.

OCGA § 24-3-16 provides, in pertinent part, that a witness can testify as to a statement made to the witness by a child under the age of 14 describing an act of sexual contact or physical abuse performed on the child or in the child’s presence if the child is available to testify and the court finds the circumstances of the statement provide sufficient indicia of reliability.

The record shows that each of the four witnesses was specifically asked about the circumstances surrounding the statements, the spontaneity of the statements, the child’s age, demeanor, and physical or mental condition, the presence or absence of threats or promises, whether the child was under the influence of alcohol or drugs, the child’s credibility, the apparent presence or absence of coaching before or at the time the statements were made, and the consistency between statements made by the child. Although the father maintains that the children might have been coached, he points to no evidence indicating that they were. See generally White v. State, 213 Ga. App. 429, 432 (2) (445 SE2d 309) (1994). The juvenile court did not err in permitting the witnesses to testify as to the children’s statements. See generally In the Interest of D. R. C., 198 Ga. App. 348, 349-350 (2) (401 SE2d 754) (1991).

2. The father complains that his due process rights were violated when, before the hearing, the juvenile court judge interviewed the children in chambers with counsel for both parties present, but did not allow either parent to attend. The father argues that the interview constituted a “witness confrontation” and that therefore he should have been allowed to attend and assist his attorney in questioning the children. We disagree.

“[T]he right to confrontation is a trial right. . . . [T]he Confrontation Clause only guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” (Citations and punctuation omitted; emphasis in original.) Sosebee v. State, 190 Ga. App. 746, 749 (3) (380 SE2d 464) (1989). The interview at issue in this case did not occur at trial, but during the pre-trial discovery process. This fact distinguishes the instant case from In the Interest of M. S., 178 Ga. App. 380 (343 SE2d 152) (1986), upon which the father relies. Here, the father was not denied the opportunity to confront the witnesses or assist his attorney in doing so at trial. Compare id. at 381.

We emphasize that the juvenile court’s primary responsibility is to consider the welfare of the child. See Gardner v. Lenon, 154 Ga. App. 748, 749 (270 SE2d 36) (1980); In the Interest of L. L. W., 141 Ga. App. 32, 33 (232 SE2d 378) (1977). The juvenile court noted in its order regarding the pre-trial interview that it considered the best interests of the children. At the same time, the court showed due regard for the father’s interests by permitting the father’s attorney to be present during the interview. We find no error.

3. The father contends the juvenile court erred in allowing a probation officer to testify as to the contents of a pre-sentence investigation report, when such a report is confidential and not subject to subpoena. See OCGA § 42-8-40. However, the witness did not testify as to the report’s contents or read from it, but simply used the report to refresh his recollection about interviews he had with the father. The court instructed the witness not to read from the document or testify to anything he did not actually remember after reviewing the report. A witness may refresh his memory by using any written instrument or memorandum, provided he finally testifies from his recollection thus refreshed or swears positively from the paper. OCGA § 24-9-69. We have found no authority holding that a person who authored a document which is confidential and not subject to subpoena cannot voluntarily use the document to refresh his own memory. We find no error.

4. The father argues that the juvenile court erred in permitting a police detective to testify regarding the contents of a statement the father gave police during the criminal case and by allowing a transcript of the taped statement into evidence. In his statement, the father denied “touching [his] daughters in any immoral way,” but admitted being addicted to cocaine, threatening, pushing and verbally abusing his wife, playing “titty-twister” with one daughter, and touching the girls’ vaginas, though he stated he was checking for yeast infections.

(a) He complains that testimony regarding the statement was inadmissible because there had been no showing that the statement was freely and voluntarily made. The father cites no authority, nor have we found any, supporting his argument that the statement made in the earlier criminal case must be shown to have been free and voluntary to be admitted in a termination of parental rights case. Indeed, termination of parental rights cases are more civil in nature than criminal. See Ray v. Dept. of Human Resources, 155 Ga. App. 81, 84 (1) (270 SE2d 303) (1980). However, parents facing termination of their rights have been afforded some of the protections to which criminal defendants are entitled. See, e.g., Nix v. Dept. of Human Resources, 236 Ga. 794, 796 (225 SE2d 306) (1976) (indigent parent has right to appointed counsel and to a paupered transcript of the proceeding; all proceedings in juvenile court are to be reported unless waived); In the Interest of M. S., supra (parent has right to confront witnesses at trial). Even assuming without deciding that a showing of voluntariness is required in a termination case, that showing was made here. The detective who took the statement testified that the father made the statement freely and voluntarily after he was read his Miranda rights and stated that he understood those rights and the charges filed against him. The detective’s testimony is supported in the record by the transcript of the interview in which the statement was made and by a “Miranda Warning Rights and Waiver Form” signed by the father indicating that he understood and waived his rights and that his statement was being freely and voluntarily made. Additionally, the father had the opportunity when testifying at the hearing to show that the statement was not freely and voluntarily made, though he failed to do so.

(b) He also objects to the court admitting the transcript of the statement when it contained “glaring inaccuracies” and a “lack of attention to detail in its preparation.” He does not specify how it was inaccurate or how the alleged inattention to detail rendered the transcript inadmissible or harmful. He has failed therefore to show error or harm by the record.

Decided August 11, 1997.

John P. Rivers, for appellant.

Hollé Weiss-Friedman, for appellee.

5. The father’s contention that the juvenile court erred in terminating his parental rights in the absence of clear and convincing evidence of parental misconduct or inability is without merit. In addition to his having been convicted of molesting all three of his daughters, there was evidence that he failed to provide them with a stable residence, abandoned them and their mother, and used half of his paycheck to buy crack cocaine though his children had no food or appropriate clothing. In its detailed order terminating the father’s parental rights, the juvenile court noted that “[the father] expressed no remorse or culpability for his actions and is in a state of denial rarely observed by this Court.” There was clear and convincing evidence to support the juvenile court’s finding as to the father’s parental misconduct or inability. See In the Interest of L. M., 219 Ga. App. 746, 749 (2) (466 SE2d 887) (1996).

Judgment affirmed.

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


text:
    A97A1152.
    BRYSON v. THE STATE.
    (491 SE2d 184)
   McMURRAY, Presiding Judge.

This is a discretionary appeal from a revocation of probation. Defendant Bryson entered a plea of guilty to aggravated assault and was sentenced to ten years confinement, one to serve and the remaining nine years to be served on probation. The sentence was filed on September 29, 1995, while a petition for revocation of probation was filed on October 9, 1996. The petition for revocation alleged that defendant had violated his probation by making unwanted contact with his minor daughter for the purpose of harassing and intimidating her in violation of a protective order prohibiting such behavior. On October 25, 1996, the superior court entered a revocation order and on November 25, 1996, defendant applied for permission to file this discretionary appeal.

One of the issues presented in defendant’s application was whether the trial court had erred by revoking in full the remainder of defendant’s probation. In his application, defendant argued that the maximum amount of his sentence which could be revoked was either five years pursuant to OCGA § 42-8-34.1 (c) or two years pursuant to OCGA § 42-8-34.1 (b). We granted defendant’s application for appellate review in large part to address this apparent error in sentencing.

However, while defendant’s application for discretionary appeal was pending, the State sought an amendment of the order of probation revocation in the trial court in order to correct an alleged misstatement in the trial court’s findings of fact. The trial court entered an amended findings of fact and order dated December 5, 1996, which revised the findings of fact and reduced the period for which defendant’s probation was revoked to five years. Held:

1. First, we must address the jurisdiction of the trial court to enter an amended revocation order subsequent to defendant’s filing of an application for discretionary appeal. Pursuant to OCGA § 5-6-35 (h), the filing of that application acted as a supersedeas to the same extent as a notice of appeal. Thus, the trial court was divested of jurisdiction to enter an order altering or amending the original revocation order which defendant sought to appeal. Contrary to .the State’s reliance upon OCGA § 15-1-3 (6), the filing of an application for discretionary appeal or notice of appeal has the effect of depriving the trial court of jurisdiction to modify or alter its judgment. Nest Investments v. Tzavaras, 221 Ga. App. 282 (471 SE2d 223); In the Interest of A. R. B., 209 Ga. App. 324, 325 (1) (433 SE2d 411) (physical precedent only); Holt v. State, 205 Ga. App. 40 (1) (421 SE2d 131). Since the trial court lacked jurisdiction to consider the State’s motion to amend the order of revocation or to enter an order thereon, the amended revocation order must be considered void and a nullity.

2. The original revocation order, entered on October 25, 1996, states as the basis of the revocation of probation that “respondent did violate the terms and conditions of his probation in the way and manner alleged in the probation delinquency report, by his own admission, said act(s) being violations of the terms and conditions of his probation beyond a reasonable doubt.” (Emphasis supplied.) Defendant correctly asserts that the finding that he admitted violating the terms of his probation is unsupported by the evidence. Therefore, the order of revocation must be vacated and the case remanded to the trial court for the entry of a findings of fact and judgment authorized by the evidence.

3. However, the trial court did not err in determining that defendant violated the terms of his probation in the manner alleged. The conduct alleged constituted the crime of aggravated stalking, OCGA § 16-5-91 (a). (The maximum time of imprisonment authorized to be imposed for the crime constituting aggravated stalking shall be five years.)

Decided August 11, 1997.

Weems & House, Brian M. House, for appellant.

Herbert E. Franklin, District Attorney, Michael J. Moeller, Elizabeth A. Overcamp, Assistant District Attorneys, for appellee.

At the revocation hearing, defendant relied upon certain alibi evidence, but there were contradictions and credibility issues presented in the evidence concerning defendant’s whereabouts on the evening in question so that the trial court as trier of fact was authorized to conclude that defendant’s alibi evidence lacked credibility and that a preponderance of the evidence established that defendant did wilfully make unwanted contact with and harass his daughter as alleged.

There is also no merit in defendant’s argument that the temporary protective order did not restrain him from harassing his daughter who was not identified by name in the temporary protective order. That order had been obtained by defendant’s common law wife, who was the physical custodian of defendant’s 11-year-old daughter from a former marriage. Defendant’s common law wife had alleged that she and her minor children were in immediate danger for their physical safety, and this was recited in the order which restrained defendant from harassing “Petitioner and the minor child(ren) in any manner. . . .” Under the applicable preponderance of the evidence standard, there was ample evidence to support a conclusion that defendant was sufficiently informed that the terms of the temporary protective order limited his conduct in relation to his daughter.

4. Although defendant’s application for discretionary appeal was granted so that we could consider his contention that the revocation in full of the remaining period of probation as provided in the order entered October 25, 1996, was error, this enumeration of error stated in defendant’s application has not been raised on appeal. Instead, defendant has argued that revocation of his probation for a period of five years was error, a position clearly directed to the amended probation order which we have concluded to be void. Thus, this enumeration of error presents nothing for review. While it appears that the trial court has recognized the apparent error which precipitated the grant of defendant’s application, attention is directed on remand to OCGA § 42-8-34.1 (c).

Judgment vacated and case remanded with direction.

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


author: Judge Harold R. Banke.

text:
    A97A1172.
    VANACORE v. CITIZENS BANK.
    (491 SE2d 181)
   Judge Harold R. Banke.

William G. Vanacore appeals the trial court’s grant of summary judgment to Citizens Bank (“Bank”) on his counterclaim.

The Bank filed the underlying action to recover approximately $130,000 on four promissory notes which Vanacore had personally guaranteed for his business, Worthmore Manufactured Homes, Inc. (“Worthmore”). Each note was secured by one or more manufacturer’s statements of origin (“MSOs”) for specific manufactured homes as collateral. The Bank extended the last loan on February 1, about a month before Worthmore filed for Chapter 11 bankruptcy protection.

The Bank’s executive vice-president, Robert Griner, testified that at the time of the February 1 loan, Vanacore was not in good standing with the Bank and had a large overdraft. Both Bill Perry, the Bank’s chairman, and Griner attested that they personally met with Vanacore at his plant and reviewed the location and status of the collateral with him two days before finalizing the loan. According to Griner, Vanacore personally endorsed this note and gave the Bank 15 mobile homes listed by MSO number as collateral for the loan. Shortly after Worthmore filed for bankruptcy, the Bank discovered that the Bank of Lenox had a perfected security interest in the same collateral Worthmore’s president, Vanacore, had pledged to the Bank. It is undisputed that the Bank’s four promissory notes on which the underlying action is based were made after the date of the Bank of Lenox’s perfected UCC filing.

Vanacore failed to respond to the Bank’s summary judgment motion, instead merely amending his original counterclaim where he had alleged that the Bank’s failure to keep its agreement to lend him additional funds caused his business to fail. In his amended counterclaim, Vanacore asserted that the loan of February 1 for $55,139.57 was an uncollateralized “good faith” loan. He claimed that the Bank subsequently added or altered after the fact the security pledged in the note.

In support of his amended counterclaim, Vanacore offered three affidavits, his own, his wife’s and an attorney’s. All three affidavits attest that each affiant overheard the same telephone conversation over a speaker phone during which Griner, the Bank’s executive vice president, allegedly remarked that he did not remember whether the items of security for that note were written or typed at the time Vanacore signed it. In his affidavit, Vanacore avers that the Bank placed no conditions on the February 1 note and that no items or property was indicated on the note when he signed it.

During his deposition, Griner was interrogated about the speaker phone conversation from a month earlier. Griner affirmatively swore that the 15 mobile homes listed on the note had already been typed in before Vanacore signed it. Griner also specifically recalled that Vanacore had signed this note in his office.

The personal guaranty for the controverted note contains a bankruptcy clause requiring: “[I]f a petition in bankruptcy be filed by . . . the Debtor [Worthmore] . . . the undersigned [Vanacore] agrees to pay to the Bank upon demand the full amount which would be payable hereunder by the undersigned [Vanacore] if all Liabilities were then due and payable.” It is undisputed that Worthmore filed for bankruptcy and that the Bank demanded payment from Vanacore for the amount due on the note. Vanacore appeals the judgment in the Bank’s favor. Held:

Vanacore contends that judgment on his counterclaim for fraud was precluded by a material question of fact as to whether the collateral listed on the note of February 1 was listed at the time the note was executed or fraudulently added later by the Bank. Vanacore’s sole proffered evidence on the issue of fraud is the affidavits mentioned above.

Notwithstanding Vanacore’s contention, Griner’s purported comment did not comprise contradictory testimony. Compare Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (2) (343 SE2d 680) (1986) (intentional self-contradictory testimony construed against equivocator, absent reasonable explanation). Griner’s memory could have easily been jogged by a thorough review of events and the documents which he had been provided during his deposition. Moreover, this alleged remark did not constitute an admission, since Griner never admitted that the Bank did not list the MSOs. Compare Riviera Finance v. McBride, 221 Ga. App. 321, 322-323 (471 SE2d 233) (1996); OCGA § 24-3-31. Nor was it a prior inconsistent statement. See Colbert v. Doe, 164 Ga. App. 618 (1), 619 (298 SE2d 592) (1982).

At best, the affidavits rely on conjecture — that if Griner could not remember the security being listed, therefore it was not listed. Where no factual basis is provided for an averment appearing in an affidavit, it may be deemed conclusory and will not be sufficient to avoid summary judgment. Abrahamsen v. McDonald’s Corp., 193 Ga. App. 868, 870 (2) (389 SE2d 386) (1989). Moreover, it is undisputed that all of Worthmore’s completed units were subject to the perfected security interest of the Bank of Lenox, which rendered the list of MSO numbers essentially immaterial. Vanacore’s tangential averment that the Bank extended Worthmore an uncollateralized “good faith” loan cannot defeat the plain unconditional language of the personal guaranty, that in the event of Worthmore’s bankruptcy, Vanacore agreed to repay the full amount due on the note at issue upon the Bank’s demand.

Decided August 11, 1997.

Saliba, Edwards & Moore, George M. Saliba II, for appellant.

Thomas W. Thomas, Jr., for appellee.

After the Bank moved for judgment, Vanacore failed to offer evidence as to each essential element of fraud. See Delk v. Tom Peterson Realtors, 220 Ga. App. 576, 578 (469 SE2d 741) (1996) (plaintiff’s claim must fail in the absence of evidence as to triable elements of fraud). Nor did Vanacore offer evidence to rebut or controvert the Bank’s evidence of the enforceability of the guaranty at issue. See Fussell v. Jones, 198 Ga. App. 399, 400 (2) (401 SE2d 593) (1991).

To avoid judgment, Vanacore could not rest on his pleadings but had to present admissible evidence showing actual issues for trial. Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832) (1993). This he failed to do.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.

       During the pendency of the Bank’s suit, Vanacore filed for personal bankruptcy protection.

       Vanacore purportedly consented to a plea agreement requiring that he make monthly restitution payments to the Bank in response to criminal charges that he endangered the Bank’s security and sold collateral out of trust.

       Perry testified that after the Bank made the loan, Vanacore admitted to him that he had sold all of the mobile homes out of trust.


author: Eldridge, Judge.

text:
    A97A1305.
    SATTERFIELD v. THE STATE.
    (491 SE2d 189)
   Eldridge, Judge.

A Cherokee County jury found James Satterfield guilty of the offense of possession of marijuana — less than an ounce. Satterfield appeals, raising as his sole enumeration of error that the trial court erred in permitting the testimony of three witnesses whose names were not on the accusation furnished to him; defendant claims that the names of such witnesses are required to be furnished to him pursuant to OCGA § 17-16-21. Held:

OCGA § 17-16-21, enacted as part of the new Discovery Act, Ga. L. 1994, p. 1895, § 4, states in pertinent part: “Prior to arraignment, every person charged with a criminal offense shall be furnished with a copy of the indictment or accusation and, on demand, with a list of the witnesses on whose testimony the charge against such person is founded. Without the consent of the defendant, no witness shall be permitted to testify for the state whose name does not appear on the list of witnesses as furnished to the defendant.” (Emphasis supplied.) The language of this Code section is identical to the language contained in the now repealed OCGA § 17-7-110. There is no indication of any intention to attach a different meaning to the same language used in both Code sections. See, e.g., In the Interest of R. D. F., 266 Ga. 294, 295 (2) (466 SE2d 572) (1996). Accordingly, the case law construing OCGA § 17-7-110 would apply to OCGA § 17-16-21.

Decided August 11, 1997.

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

G. Channing Ruskell, Solicitor, for appellee.

“Where the record does not show that any demand for a list of witnesses was filed prior to arraignment . . . , the trial court does not err in permitting an unlisted witness to testify over objection. (Cits.) [Cit.]” (Punctuation omitted.) Tyus v. State, 196 Ga. App. 857, 858 (3) (397 SE2d 194) (1990). In this case, the record contains no demand made by Satterfield pursuant to OCGA § 17-16-21. Further, Satterfield did not ask for additional time to interview the witnesses; did not claim to be unfairly surprised by the witnesses; and did not allege prejudice of any kind from the fact that the witnesses were called to testify. See Bates v. State, 202 Ga. App. 460 (414 SE2d 691) (1992). Under such circumstances, the trial court did not err in permitting the witnesses about which defendant complains to testify.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.


author: BIRDSONG, Presiding Judge.

text:
    A97A1441.
    MORRIS v. THE STATE.
    (491 SE2d 190)
   BIRDSONG, Presiding Judge.

Appellant Harold Morris appeals his conviction of two counts of aggravated assault, one count of possession of a firearm during the commission of a crime, and one count of misdemeanor theft by taking. Appellant enumerates three errors. Held:

1. Appellant contends the trial court erred in denying his new trial motion as the verdict was decidedly against the weight of the evidence. We disagree.

The record unequivocally reveals that the State called as witnesses for the prosecution certain hostile eyewitnesses. After these witnesses testified denying the happening of certain events and claiming loss of memory as to other events, the State introduced various prior inconsistent statements by these witnesses made at the crime scene. “ ‘(A) prior inconsistent statement of a witness who takes the stand and is subject to cross-examination is admissible as substantive evidence, and is not limited in value only to impeachment purposes.’ [Cit.] A party may impeach its own witness with a prior inconsistent statement without any showing of entrapment or surprise.” Rollins v. State, 262 Ga. 698, 699 (1) (425 SE2d 285). “As a general rule, a party may show anything which may, in the slightest degree, affect the credit of an opposing witness. A witness may be impeached by disproving the facts testified to by him. And, while a witness may be impeached on a collateral issue which is indirectly material to the issue in the case, a witness may not be impeached because of a discrepancy as to a wholly immaterial matter. A witness can be impeached as to matters relevant to his testimony and to the case, and by disproving facts testified to by him. And evidence tendered for purposes of impeachment need not be of the kind or quality required for proving the facts in issue.” (Citations and punctuation omitted.) Morris v. State Farm Mut. Auto. Ins. Co., 203 Ga. App. 839, 842 (9) (418 SE2d 119). “We are satisfied that [the witnesses were] not impeached as to wholly immaterial matters, but [were] attempted to be impeached as to matters at least indirectly if not directly material as to [their] testimony and to issues in this case.” Id. The record does not establish that the trial court abused its discretion in admitting the prior inconsistent statements of the State’s witnesses in evidence for purposes of impeachment and, thus, as substantive evidence.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737). Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offenses of which he was found guilty. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Appellant contends the trial court erred in allowing hearsay testimony in evidence. Specifically, appellant argues on appeal that the trial court erred in allowing Officer Jones to testify, over a timely hearsay objection, as to out-of-court statements made by William Johnson that he had hidden in a closet while appellant fired shots through the wall and closet door. The trial court overruled the objection on the basis that the testimony constituted a res gestae exception to the hearsay rule. In determining whether to admit testimony as res gestae evidence, a trial court must determine whether the declaration was undeniably free from all suspicion of device or afterthought. Wilbourne v. State, 214 Ga. App. 371, 372 (448 SE2d 37). The applicable standard of appellate review is whether the trial court’s ruling admitting this evidence was clearly erroneous. Robinson v. State, 197 Ga. App. 600, 601 (2) (399 SE2d 94). In resolving this issue an appellate court must determine whether, under the existing circumstances of the particular case, the trial court was authorized to believe the declarations were made without premeditation or artifice, and without a view to the consequences. Wilbourne, supra at 372 (1).

Officer Jones, responding to dispatch, arrived at the crime scene and found several subjects in the yard; “everybody was all upset.” Officer Jones spoke with two male subjects in the yard who stated “Mr. Willis [sic]” (this slip of the tongue was later clarified to reflect that Officer Jones was referring to appellant Morris when he was using the name Willis) had “gone crazy” and was shooting in the house. Officer Jones next spoke with Ms. Morris, appellant’s niece, who made various statements to him regarding appellant’s criminal conduct that evening. At this point, Mr. Johnson came out of the house voluntarily and met Officer Jones in the yard. Mr. Johnson was “very upset and acted very scared”; he was shaking and his “voice was quivering” as he related what had happened. While laboring under this emotional condition, Mr. Johnson “advised” Officer Jones that appellant had returned to the living room area and threatened him. Mr. Johnson “ran into the bedroom area” and hid in the corner closet. Mr. Johnson recounted that appellant then shot at the closet doors and the bedroom wall. Although he did not find any projectiles or shell casings, Officer Jones did personally observe two small holes — one in the closet door and another in the bedroom door leading from the dining room into the bedroom. He could not determine whether the holes were bullet holes or how long they had been there; but based on his prior observations of bullet holes in wood, he testified without objection that the holes in the doors appeared to look similar to those bullet holes and could possibly be bullet holes too.

OCGA § 24-3-3 provides: “Declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, shall be admissible in evidence as part of the res gestae.” Classic res gestae evidence usually is contemporaneous to the act; however, the length of time between the event and the declaration is not conclusive to the determination of admissibility. Id. Rather, res gestae is admitted based on its nature and quality as being so spontaneous, or so connected to or prompted by the startling act or event at issue, as to be inherently reliable. See OCGA § 24-3-3. From the state of the trial transcript, the trial court could reasonably find that Mr. Johnson exited the house and voluntarily and spontaneously informed Officer Jones of appellant’s threats and firing of the weapon. Even if the statements were made in answer to a question by Officer Jones, a fact not established by the record, such “fact alone will not render them inadmissible.” Thomas v. State, 242 Ga. 712, 714 (1) (251 SE2d 294).

This case is factually distinguishable from Wilbourne, supra, as there is no evidence in this record that Mr. Johnson had time to sit awaiting the police and to formulate a biased account of this startling event. The res gestae statements admitted in evidence reveal that Mr. Johnson had sought refuge in a closet to hide from danger and that appellant had fired a shot in the closet door. Officer Jones’ personal observation of the holes in the doors tended partially to corroborate a material part of Mr. Johnson’s utterances. The trial court reasonably could infer from the officer’s testimony regarding the location of the holes that they were made from a pistol shot fired by appellant, as such event was recounted in the voluntary statement of Mr. Johnson. Mr. Johnson was still laboring under the effects of the startling event at the time he made his statements. The trial court could reasonably conclude from Officer Jones’ testimony regarding Mr. Johnson’s physical characteristics and emotional state at the time the statements were made that Mr. Johnson did not deliberate and did not formulate a biased version of the incident he had witnessed. Appellant has failed under the totality of the attendant circumstances to show that the trial court’s ruling, admitting the statement of Mr. Johnson as res gestae, was clearly erroneous and a breach of its discretion. Compare Thomas, supra.

3. Appellant further enumerates that the trial court erred in not giving his requested charge of reckless conduct, as the evidence required such charge. See generally OCGA § 16-5-60. Appellant’s sole argument in support of this enumeration is that the lesser included offense of reckless conduct was raised by the State’s theory that appellant pointed and waved a firearm toward individuals. Appellant was convicted of two aggravated assaults upon Sophia Morris by pointing a firearm (handgun) at her and threatening to kill her and by pointing a firearm (handgun) at her and firing said firearm, respectively. As recognized by the trial court, the evidence of record failed to reasonably raise the lesser included offense of reckless conduct. The posture of the evidence is that appellant either was guilty of these two offenses of aggravated assault, as averred, or was not guilty of any crime under these particular indictment counts. “Accordingly, it was not error to refuse to give the requested charge on reckless conduct as a lesser included offense.” Perryman v. State, 208 Ga. App. 754, 756 (3) (431 SE2d 742); see Marion v. State, 224 Ga. App. 413, 416 (2) (480 SE2d 869); Tolbert v. State, 215 Ga. App. 113 (1) (449 SE2d 671).

Judgment affirmed.

Ruffin and Eldridge, JJ., concur.

Decided August 11, 1997.

Neel & Smith, Barry S. Haney, for appellant.

T. Joseph Campbell, District Attorney, Lance T. McCoy, Assistant District Attorney, for appellee.