author: POPE, Presiding Judge.

text:
    A00A1926.
    DENIS v. DELTA AIR LINES, INC. et al.
    (546 SE2d 805)
   POPE, Presiding Judge.

Under Georgia law, a person may not assign to another a right of action for personal torts. OCGA § 44-12-24. By operation of federal bankruptcy law, however, if a tort victim files bankruptcy, such a claim automatically vests in the trustee regardless of state law. Bankruptcy law also provides that under certain circumstances a trustee may “abandon” property of the estate back to the debtor. The issue in this case is whether a bankruptcy trustee violates OCGA § 44-12-24 by abandoning a tort claim back to the debtor/tort victim. We hold that federal bankruptcy law preempts OCGA § 44-12-24 under these circumstances.

In December 1996, Andrew Denis filed suit in Fulton County alleging that he was injured as a result of ingesting a foreign object contained in food prepared by Dobbs International Services, Inc. and served to him while he was a passenger on a flight operated by Delta Air Lines, Inc.

In March 1998, while the tort claim was still pending, Denis filed a Chapter 7 bankruptcy petition in the United States Bankruptcy Court for the Eastern District of New York. In December of that year, Delta and Dobbs, by and through their attorneys, reached an agreement with Denis’s counsel to settle the tort claim for $125,000. The check was to be made payable to the trustee, and the trustee applied to the bankruptcy court for approval of the settlement.

However, Denis hired a new lawyer and, on February 19, 1999, filed an objection to the settlement in the bankruptcy court. He proposed that the tort claim be abandoned to him in return for a payment from him to the trustee of $125,000. The trustee consented to Denis’s objection and recommended abandonment of the claim. After a hearing on the matter, the bankruptcy court ordered the tort claim abandoned to Denis in exchange for the payment and other considerations.

Immediately thereafter, Delta and Dobbs filed a joint motion to substitute the trustee as the real party in interest in the tort action on the grounds that when the bankruptcy action was filed, the claim vested in the trustee. The trial court never ruled on this motion.

On May 25, 1999, Delta and Dobbs jointly moved for summary judgment on the grounds that despite the abandonment, the claim still belonged to the trustee because the abandonment was precluded by the prohibition against assignment of tort claims. OCGA § 44-12-24. They argued that, therefore, summary judgment was appropriate because Denis, the named plaintiff, no longer owned the claim. The trial court granted the motion, holding that the abandonment was void under OCGA § 44-12-24. This appeal followed.

The trial court relied on United Technologies Corp. v. Gaines, 225 Ga. App. 191 (483 SE2d 357) (1997). In that case, we held that the trustee in bankruptcy is the real party in interest regarding a tort action by the debtor because a cause of action vests in the trustee when a bankruptcy petition is filed. Id. at 192. We also held that the trustee was prohibited by OCGA § 44-12-24 from assigning the claim back to the debtor. Id. at 192-193.

Denis argues that abandonment under federal bankruptcy law is not the same as assignment of a claim and, therefore, it is not prohibited by OCGA § 44-12-24 and Gaines is distinguishable. He also asserts that a review of the policy underlying OCGA § 44-12-24 shows that an abandonment from a trustee back to a debtor in bankruptcy is not the type of transfer the statute is designed to prevent.

Delta and Dobbs argue that Denis paid $125,000 in exchange for getting his claim back and that that transaction is void under OCGA § 44-12-24 and Gaines. They also contend the bankruptcy court’s action does not qualify as an abandonment under federal bankruptcy law.

Resolution of this issue requires a review of the pertinent provisions of federal bankruptcy law to determine whether the trustee’s power to abandon property preempts the Georgia law prohibiting assignment of a tort claim.

When a debtor files a Chapter 7 petition, “all legal or equitable interests of the debtor in property” become part of the bankruptcy estate. 11 USC § 541 (a) (1). Under the express provisions of the bankruptcy code, this is true “notwithstanding any provision in . . . applicable nonbankruptcy law . . . that restricts or conditions transfer of such interest by the debtor.” 11 USC § 541 (c) (1) (A). See also Integrated Solutions v. Svc. Support Specialties, 124 F3d 487, 490-491 (III) (B) (3rd Cir. 1997). Therefore, by the express preemptive operation of federal law, a cause of action becomes part of the bankruptcy estate “even though OCGA § 44-12-24 normally prohibits the assignment of personal tort causes of action.” Gaines, 225 Ga. App. at 192.

Abandonment is governed by 11 USC § 554. That section provides that “the trustee may abandon any property of the estate that is burdensome to the estate or that is of inconsequential value and benefit to the estate.” 11 USC § 554 (a), (c). There is no express provision in § 554, as there is in § 541, stating that this portion of the federal bankruptcy code prevails notwithstanding applicable nonbankruptcy law.

The United States Supreme Court has addressed this question. It held that “Congress did not intend for § 554 (a) to pre-empt all state and local laws.” Midlantic Nat. Bank v. New Jersey Dept. of Environmental Protection, 474 U. S. 494, 506 (V) (106 SC 755, 88 LE2d 859) (1986). More specifically, the Supreme Court held that a trustee may not abandon property in contravention of local laws designed to protect the public’s health and safety. Id. at 507 (V). But it stated that the exception to the trustee’s abandonment power that it was carving out was a narrow one: “The abandonment power is not to be fettered by laws or regulations not reasonably calculated to protect the public health or safety from imminent and identifiable harm.” Id. at in. 9. For abandonment power to be fettered by other laws, there must be an “imminent and identifiable harm” as there was in that case. Id.

Other courts have followed, this lead:
In light of the rather extreme circumstances in Midlantic, most courts have allowed abandonment after determining no “imminent and identifiable harm to the public” exists. See, e.g., In re L.F. Jennings Oil Co., 4 F.3d 887 (10th Cir. 1993), cert. denied, [511 U. S. 1005 (114 SC 1372, 128 LE2d 48)] (1994) (abandonment proper where property not immediate threat to public health or safety, citing as evidence lack of listing on state’s list of contaminated sites); In re Smith-Douglass, Inc., 856 F.2d 12, 15-17 (4th Cir. 1988) (trustee only required to “take adequate precautionary measures to ensure that the public is not threatened” before abandonment); In re Anthony Ferrante & Sons, 119 B.R. 45, 49-50 (D. N.J. 1990) (trustee allowed to abandon contaminated public water system in contravention of state’s environmental regulations absent showing of imminent and identifiable harm to public from such abandonment).

In re Vel Rey Properties, 174 Bankr. 859, 867 (II) (D. D.C. 1994).

Here, the state law at issue is not one that is “calculated to protect the public health or safety from imminent and identifiable harm.” Although the precise policy underlying OCGA § 44-12-24 is not crystal clear, see Central R. & Banking Co. v. Brunswick &c. R. Co., 87 Ga. 386 (13 SE 520) (1891), we find no evidence that it falls into the narrow category identified in Midlantic.

We find further support for our decision in the U. S. Supreme Court’s description of the effect of abandonment under bankruptcy law. It is generally the case that when property is abandoned under 11 USC § 554, it reverts to the debtor and stands as if no bankruptcy petition had been filed. See Brown v. O’Keefe, 300 U. S. 598, 602 (57 SC 543, 81 LE 827) (1937). “In such case ‘the title stands as if no assignment had been made.’ [Cit.]” Id. In other words, the practical effect of abandonment is that the claim never left Denis in the first place.

Therefore, regardless of whether the abandonment of Denis’s claim by the bankruptcy court could be characterized as an assignment, the power of the trustee to abandon property preempts OCGA § 44-12-24. Gaines is distinguishable. That case did not involve an abandonment under 11 USC § 554.

Judgment reversed.

Miller and Mikell, JJ., concur.

Decided March 2, 2001

Mitchell & Shapiro, Richard C. Mitchell, for appellant.

Carter & Ansley, Burke B. Johnson, Chambers, Aholt & Rickard, Ian R. Rapaport, Deeann B. Waller, for appellees.

       Overruled on separate grounds, Guhl v. Davis, 242 Ga. 356, 358 (249 SE2d 43) (1978).


source: Caselaw Access Project

author: Ellington, Judge.

license: Public Domain

text:
    A00A1942.
    SHASTA BEVERAGES, INC. v. TETLEY USA, INC.
    (546 SE2d 800)
   Ellington, Judge.

After its newly developed, ready-to-drink tea product line spoiled on the grocery shelves, Shasta Beverages, Inc. filed a product liability suit against tea supplier Tetley USA, Inc., alleging breach of contract, breach of express and implied warranties, negligence, negligent misrepresentation, and failure to warn. After a three-week trial, the jury found in favor of Shasta on its claims for negligent misrepresentation, negligence, and breach of express warranty, but awarded zero damages. Shasta appeals from the denial of its motion for new trial. Finding no error, we affirm.

The facts of this case, viewed in favor of the jury’s verdict, are as follows: In 1994, Shasta decided to develop and market a tea beverage called “SunTea.” SunTea was to be produced through a “cold fill” procedure, where preservatives are used instead of hot water to kill microbes. Shasta stated that it chose the “cold fill” procedure because it was significantly cheaper than the “hot fill” process and could be performed in all of their plants, saving shipping charges.

SunTea was made from tea powder, water, sweetener, flavoring, and preservatives. Shasta contacted Tetley about providing tea powder for a cold fill process, and Tetley recommended tea formulation 130 PSI-LD-C (“powder”). Shasta did not give Tetley any microbiological requirements for the powder and did not request information about the powder’s microbiological count per gram. Tetley sent a specification sheet for the powder, which stated that the powder was “Pure Instant Tea” and that it “conforms in every respect to the provisions of the Federal Food, Drug and Cosmetic Act. It is clean and palatable, contains no foreign matter, and is manufactured in the USA in accordance with Good Manufacturing Practice.” In fact, the tea was grown in Argentina and made into a powder in Chile, then shipped to Tetley’s Morris Plains, New Jersey, plant and repackaged without further processing.

Shasta purchased the powder and developed a formula for Sun-Tea, which included determining the levels of preservative necessary to prevent spoilage. Shasta determined the preservation level by reviewing textbooks and consulting with other tea suppliers. Shasta made several “test runs” of SunTea to determine microbiological counts, and the product “checked out fine.” In March 1995, Shasta began manufacturing SunTea in its Columbus, Ohio, and La Mirada, California, plants.

Shortly after the product was distributed, SunTea began to spoil on the grocery shelves, and Shasta recalled the product. After reformulating SunTea, Shasta still experienced spoilage. Shasta contacted Tetley, which said that the preservative levels were wrong and recommended changes. Tetley also recommended that SunTea have a maximum pH of 2.9 to 3.0, but Shasta was unable to reduce the pH to below 3.7. Shasta eventually stopped using Tetley’s powder in Sun-Tea. Shasta tested the powder, however, and discovered that it contained yeast, which could cause spoilage.

After substituting liquid concentrate for the powder and making “radical changes” to the amount and proportions of preservatives and other ingredients, Shasta produced SunTea that did not spoil. Shasta contends, however, that by then SunTea’s market reputation was irreparably damaged. Shasta sued Tetley to recover the costs of developing and marketing SunTea, as well as lost profits.

At trial, Tetley defended against the negligence allegations by presenting a memorandum prepared by one of Shasta’s field quality administrators regarding his unannounced inspection of Shasta’s La Mirada plant in January 1995. According to the memorandum, the inspector found the following: roof leaks throughout the plant, resulting in water puddling; forklift holes in storage boxes and “leaking product”; unprotected bottle caps and crowns; mold and “crud” on equipment; “scummy water” on equipment; ceiling damage over equipment; leaking tanks; and dirty floors. The sanitation audit score was 82.9 percent. The inspector returned to La Mirada in May 1995, after the SunTea spoilage came to Shasta’s attention. He found “mold/slime” on the floors and bottling equipment. There was still a hole in the ceiling with dust, dirt, and mold contamination and a fan blowing across the area. His report stated that the floor of the “fill and syrup areas” also had holes “where stagnant water had collected and some of the pools were fermenting. This condition could provide air-borne micro-organisms.” Shasta immediately cleaned and sanitized the plant, during which it discovered “specific areas that could contribute to contamination of the finished beverage.” Even so, in October 1995, after the sanitation and months after the last SunTea run, the inspector’s memorandum stated that plant conditions were worse. In addition to the problems documented in previous inspections, the October inspection also found evidence of insects in the plant and “spotty” record-keeping. The sanitation score dipped to 80.5 percent.

Notably, SunTea “Product Formula” sheets, listing the ingredients and production instructions for the product, did not mention sanitation requirements until June 13, 1995, when the following statement was added: “Note: This is an extremely sensitive item and requires a full 7-step sanitation the same as a 10% juice prior to running.” Although a weekly seven-step sanitation procedure is mandated for all noncarbonated products, the evidence showed that the La Mirada plant conducted the procedure only three times during a 23-week period from February to September 1995. The Columbus plant did not conduct a seven-step sanitation procedure from January through August 1995. Further, Tetley demonstrated that the water supplies for both Shasta facilities had bacterial counts that were considered “too numerous to count” during June 1995.

Finally, Tetley presented evidence to demonstrate that Shasta’s alleged lost profits were purely speculative and based upon a questionable premise: that the SunTea product line would, in fact, be successful. For example, Tetley demonstrated that the “dramatic growth” in the beverage market had leveled off by 1995 and that Shasta introduced the product too late in the year to capitalize on the summer market. There was also evidence that Shasta’s pricing strategy was not competitive.

1. In its first enumeration of error, Shasta challenges the trial court’s decision to exclude as irrelevant the testimony of Harry Chapman, the former manager of the Tetley plant in Morris Plains. Shasta sought to introduce Chapman’s deposition at trial in order (a) to demonstrate that Tetley had a duty to warn Shasta about the tea’s allegedly high microbiological count; and (b) to rebut Tetley’s assertions that spray-drying tea powder with high heat will destroy all microbes.

Generally speaking, questions of relevance are within the domain of the trial court, and, absent a manifest abuse of discretion, a court’s refusal to admit evidence on grounds of lack of relevance will not be disturbed on appeal. The rule is usually stated that the judge may exercise his discretion in excluding relevant evidence if he finds that its probative value is substantially outweighed by the risk that its admission will create substantial danger of undue prejudice or of confusing the issues or of misleading the jury.

(Citation and punctuation omitted.) Goss v. Total Chipping, 220 Ga. App. 643, 644 (2) (a) (469 SE2d 855) (1996). See also Ray v. Ford Motor Co., 237 Ga. App. 316, 317 (1) (514 SE2d 227) (1999).

Chapman did not participate in the processing of Shasta’s tea powder and did not testify at trial. Shasta proffered Chapman’s deposition, which stated that in 1996 or 1997, a batch of carbo instant tea powder spray-dried at the Morris Plains plant showed a microbiological count of 6,000 after processing. Because this count was higher than normal, Tetley started to thoroughly clean the processing equipment on a regular basis, and the count of subsequent powder batches decreased. Chapman deposed that, even though Tetley’s standard maximum microbiological count per gram was 10,000, he called the customer who purchased the 6,000 count powder, because the customer previously had specified a 1,000 count maximum for its powder and the 6,000 count might be “unacceptable.” By the time Tetley contacted the customer, however, it already had distributed some of the 6,000 count powder. Even with the higher than normal count, products made with the powder did not spoil.

(a) Shasta claims Chapman’s deposition testimony was necessary to demonstrate that Tetley had a duty to warn Shasta about the allegedly high microbiological count of its powder. Initially we note that Shasta has not cited to any evidence to establish that the count of the powder it received from Tetley was, in fact, high. Further, unlike the customer Tetley contacted about the 6,000 count, when Shasta ordered the powder from Tetley, Shasta did not specify a maximum acceptable microbiological count. Apparently, Shasta never inquired about the count until after spoilage occurred. As such, the question becomes whether Tetley had a duty to warn a customer of a microbiological count that was lower than Tetley’s maximum standard count, in the absence of the customer’s specification of a maximum acceptable count. Since Chapman’s testimony did not address this issue, we find that the trial court did not abuse its discretion in excluding it as irrelevant.

(b) Shasta also complains that Chapman’s deposition testimony should have been admitted to show that contamination can take place within spray-drying equipment, so that Shasta’s tea powder could have been contaminated by the spray dryer in the Chilean processing plant. Shasta argued that Chapman’s deposition rebuts Tetley’s alleged assertions that the spray-drying process destroyed all microbes in tea powder.

The proffered testimony, however, concerned an incident that happened one or two years after Shasta received its tea powder from Tetley. Shasta’s powder was not spray-dried at the Morris Plains plant, but was processed at a Chilean plant and shipped to Tetley for repackaging only. Since Chapman never testified about the type of equipment used at the Morris Plains Tetley plant, there was no evidence that the spray-drying or other equipment used in that plant was the same or even similar to that used in the Chilean plant. Further, unlike inferences that could be drawn from Chapman’s testimony regarding the unsanitary condition of the Morris Plains equipment, no evidence was presented to demonstrate how often the Chilean spray-drying equipment was cleaned or that it was ever unsanitary. Finally, the carbo instant tea powder that was spray-dried by Chapman was not the same product as that sold to Shasta, and Chapman did not know if the powder even included Chilean tea.

Although evidence of other problematic incidents involving a product may be relevant and admissible in product liability actions, “[w]ithout a showing of substantial similarity, the evidence is irrelevant as a matter of law.” Ray v. Ford Motor Co., 237 Ga. App. at 317 (1). Given Shasta’s failure to demonstrate that the Morris Plains incident was substantially similar to the facts at issue in this case, we find that the trial court did not abuse its discretion in excluding Chapman’s deposition testimony as irrelevant. Id.; see also Goss v. Total Chipping, 220 Ga. App. at 644 (2) (a).

2. Shasta contends that the trial court erred in denying its motion for new trial because the verdict awarding zero dollars was inadequate, inconsistent with the evidence, and contrary to the law. Shasta argues that a finding in favor of Shasta on negligent misrepresentation requires the award of monetary damages. See Hardaway Co. v. Parsons, Brinckerhoff &c., Inc., 267 Ga. 424, 426 (1) (479 SE2d 727) (1997) (the elements of negligent misrepresentation include an economic injury that was proximately caused by reliance on the defendant’s false information). We disagree, however, because the jury’s verdict, while ambiguous, was not per se inconsistent with its finding on negligent misrepresentation and was supported by the evidence. “[I]f possible, even ambiguous verdicts should be upheld.” (Citation and emphasis omitted.) Bunch v. Mathieson Drive Apts., 220 Ga. App. 855, 858 (1) (470 SE2d 895) (1996). Further,

[t]he question of damages is ordinarily one for the jury; and the court should not interfere with the jury’s verdict unless the damages awarded by the jury are clearly so inadequate or so excessive as to be inconsistent with the preponderance of the evidence in the case.

OCGA § 51-12-12 (a). This Court must affirm a judgment entered on a jury verdict “if there is any evidence to support it because ‘the jurors are the sole and exclusive judges of the weight and credit given the evidence.’ ” Hensley v. Henry, 246 Ga. App. 417, 419 (1) (541 SE2d 398) (2000).

In this case, the evidence supported a finding that Tetley made negligent misrepresentations regarding the specifications for the tea powder provided under the contract and that Shasta was damaged when it relied on the misrepresentations. The jury also could have found, however, that Shasta was comparatively negligent in failing to use the necessary level of preservatives or in failing to maintain a clean bottling environment and that such negligence was equally or more responsible for its damages than Tetley’s negligent misrepresentation.

Under the comparative-negligence doctrine of this state, a plaintiff whose negligence is less than that of the defendant is not denied recovery although his damages shall be diminished by the jury in proportion to the degree of fault attributable to him. However, where the negligence of the plaintiff and the defendant are equal, or the negligence of the plaintiff is more than that of the defendant, the plaintiff could not recover.

(Citations and punctuation omitted.) Bridges Farms v. Blue, 267 Ga. 505 (480 SE2d 598) (1997). The jury received instructions on the law of comparative negligence. This Court’s role in reviewing a verdict that combines a finding of defendant’s negligence with zero damages is not to “enter the jury box but to determine whether a trial court’s ruling on a motion for new trial. . . was error under OCGA § 51-12-12.” (Citation and punctuation omitted.) Robinson v. Star Gas of Hawkinsville, 269 Ga. 102, 104 (1) (498 SE2d 524) (1998).

Decided March 2, 2001

Hawkins & Parnell, Jack N. Sibley, Cullen C. Wilkerson, for appellant.

Swift, Currie, McGhee & Hiers, John Campbell, Stephen L. Cotter, for appellee.

Since the evidence presented in this case supports a finding that Shasta’s own negligence was greater than or equal to Tetley’s negligence, we cannot say that the damages are so inadequate as to be inconsistent with the preponderance of the evidence. OCGA § 51-12-12 (a). Further, the jury’s verdict was not contradictory or irreconcilable. See Bunch v. Mathieson Drive Apts., 220 Ga. App. at 858 (l). The trial court did not err in refusing to grant a new trial.

Judgment affirmed.

Andrews, P. J., and Ruffin, J., concur.

        Hensley v. Henry, 246 Ga. App. 417, 419 (1) (541 SE2d 398) (2000).

       Carbo instant tea powder contains com syrup and tea.

       As noted above, Shasta presented no evidence of the actual microbiological count of the Chilean tea powder. According to Shasta, “without any testing, we don’t know the condition of [the Chilean] powder.”

       These assertions included the testimony of Tetley’s chairman, Dr. Robert Carbonell, who holds a doctorate degree in pharmaceutical chemistry. Carbonell testified that, while spray-drying is “not a method that one would use to . . . clean up dirty tea,” at the end of the entire procedure of changing tea leaves to a fine, dry powder, the powder is free of microbes “[t]hat can cause spoilage in its dry stage, as long as it is dry, as long as the water activity is low enough to prevent any microbes from proliferating.” He emphasized, however, that it is the extraction process — not the spray-drying — that kills the microbes, saying “the spray dryer does not clean. The spray dryer dries.” Carbonell later testified that the high heat used in the spray-drying process would “tend to kill microbes and keep them away,” because the processed tea powder has a very low moisture content. He stated that the powder was “microbially stable . . . because it has very low water activity.” Tetley’s expert in food microbiology agreed that, while the high temperature of the spray-drying will “kill” yeast, exposing the powder to moisture will “reactivate” the yeast.
      Notably, this opinion was shared by Shasta’s own expert, who stated that spray-drying the tea powder will destroy some yeast while “stress [ing]” the remaining yeast. The remaining yeast may remain inert for a period of time until it is rehydrated and resuscitated. This accounts for the significant delay between bottling the processed tea and its spoilage. Shasta’s expert also stated that, because of the spoilage delay, incubating the powder for only three days, as Shasta did, would be an insufficient amount of time to determine if yeast growth and spoilage will occur.

       This case is distinguishable from Bunch, supra, wherein the jury awarded no damages for the decedent’s wrongful death, but awarded full coverage of funeral expenses. Id. at 858 (1). As this Court pointed out, the failure to award wrongful death damages could be explained if the jury found that the decedent’s negligence was equal to or greater than the defendant’s. Id. This finding, however, would preclude a finding that the same defendant was liable for funeral expenses. Id. Therefore, the jury verdicts were “contradictory and irreconcilable,” and this Court reversed the judgment entered thereon. Id.


author: Pope, Presiding Judge.

text:
    A00A2363.
    WRIGLEY v. THE STATE.
    (546 SE2d 794)
   Pope, Presiding Judge.

William H. Wrigley appeals from his conviction on one count of driving without a license on his person and one count of driving under the influence. We affirm.

In the early hours of May 8, 1998, the Motorcycle Squad of the City of Atlanta Police Department set up a roadblock on Buford Highway as a part of “Operation Street Sweep.” At around midnight, Wrigley’s car stopped at the roadblock, where he was approached by Officer David Curtis Johnson. When Officer Johnson asked Wrigley for his license and insurance card, Wrigley was unable to produce his license and appeared to have difficulty locating his insurance card. Officer Johnson also detected an odor of alcohol on Wrigley and noticed that he had bloodshot eyes, a flushed face, and slurred speech and was unsteady on his feet. Wrigley admitted that he had been drinking.

Officer Johnson then asked Officer G. W. Garrison, a member of the DUI countermeasures team, for assistance in administering the field sobriety tests. As a member of the countermeasures team, Officer Garrison had specialized DUI and intoxilyzer training. Officer Garrison also smelled alcohol on Wrigley’s person and observed that his eyes were bloodshot and dark and that his speech was impaired. He led Wrigley through the horizontal gaze nystagmus (HGN) test, the nine-step walk and turn test, and the one-leg stand test. Based upon these tests Officer Garrison determined that Wrigley was intoxicated to the extent that he was a less safe driver. Wrigley was placed under arrest.

1. Wrigley first asserts that the trial court erred in denying his motion in limine to exclude all evidence from the roadblock. Wrigley argues that the roadblock was illegal because there was no evidence that the screening officers were properly trained.

The Supreme Court of Georgia has determined that a roadblock is constitutional where it meets the following five factors:

A roadblock is satisfactory where [(1)] the decision to implement the roadblock was made by supervisory personnel rather than the officers in the field; [(2)] all vehicles are stopped as opposed to random vehicle stops; [(3)] the delay to motorists is minimal; [(4)] the roadblock operation is well identified as a police checkpoint; and [(5)] the “screening” officer’s training and experience [are] sufficient to qualify him to make an initial determination as to which motorists should be given field tests for intoxication.

LaFontaine v. State, 269 Ga. 251, 253 (3) (497 SE2d 367) (1998). These factors are not “absolute criteria” that a roadblock must meet in order to be considered legitimate. Heimlich v. State, 231 Ga. App. 662, 663 (500 SE2d 388) (1998). “Rather, this Court looks to the totality of the circumstances surrounding the roadblock to determine whether the factors were satisfied.” Albert v. State, 236 Ga. App. 146, 148 (1) (511 SE2d 244) (1999).

Here, Wrigley does not dispute that the first four factors were met. But he challenges the fifth factor, the training of the screening officers participating in the roadblock. The evidence showed that Officer Johnson was a ten-year veteran of the Atlanta Police Department. He testified that he had received training in DUI detection at the police academy when he first became a police officer and at several of the annual in-service training sessions he had attended over ten years. In addition, he said that he had “on-the-job training” dealing with intoxicated people, making, on average, one DUI arrest per month, which he calculated to be over 100 arrests over ten years. We find that this experience and training were more than sufficient to qualify Officer Johnson to screen for motorists who should be given field sobriety tests. State v. Sherrill, 247 Ga. App. 708, 711 (545 SE2d 110) (2001); State v. Golden, 171 Ga. App. 27, 30 (2) (318 SE2d 693) (1984).

And although no evidence was presented regarding the specific qualifications of the 19 other screening officers participating in the roadblock, the record shows that DUI training for officers in the Atlanta Police Department generally begins in the police academy and continues periodically through the department’s annual in-service training program. The record also reflects that each officer was a member of the motorcycle squad, a traffic unit that deals with the driving public. From the evidence presented, we can reasonably infer that the other officers were also sufficiently qualified to serve as screening officers.

Accordingly, viewing the roadblock under the totality of the circumstances, we find no error in the trial court’s denial of Wrigley’s motion in limine on this ground.

2. Wrigley also asserts that the roadblock was illegal under the U. S. Supreme Court’s recent decision holding that checkpoint stops aimed primarily at detecting evidence of ordinary criminal wrongdoing violate the Fourth Amendment. City of Indianapolis v. Edmond, 531 U. S. 32 (121 SC 447, 148 LE2d 333) (2000). We disagree.

In Edmond, the City of Indianapolis set up a series of six roadblocks with the stated purpose of detecting unlawful drug activity. At each checkpoint, officers stopped a predetermined number of vehicles. Each driver was told that he was being stopped at a drug checkpoint and was asked to produce a license and registration card. The officers also looked for signs of impairment and conducted an open-view examination of the vehicle from the outside. The officers then circled each vehicle with a narcotics detection dog. Id., 121 SC at 450-451.

The Supreme Court noted that it had upheld brief, suspicionless seizures at highway checkpoints only for limited purposes, such as combating drunk driving and intercepting illegal immigrants at U. S. borders. Edmond, 121 SC at 452, citing Michigan Dept. of State Police v. Sitz, 496 U. S. 444 (110 SC 2481, 110 LE2d 412) (1990), and United States v. Martinez-Fuerte, 428 U. S. 543 (96 SC 3074, 49 LE2d 1116) (1976). In addition, the Supreme Court previously has suggested that a roadblock for the purpose of verifying driver’s licenses and vehicle registrations would be permissible. Id., citing Delaware v. Prouse, 440 U. S. 648, 663 (99 SC 1391, 59 LE2d 660) (1979). In these cases, the Court recognized that the practice of using the checkpoint was directly connected to the important interests of maintaining highway safety and stemming the flow of illegal immigrants through the country’s borders. Edmond, 121 SC at 452-453.

But in Edmond, the Court found that illegal drug activity did not pose a threat to highway safety similar to that posed by drunk driving and, thus, that the use of a drug checkpoint could not be rationalized in the same terms as a sobriety checkpoint. Id. at 455. Rather, the Court found that the Indianapolis checkpoints were aimed at “ ‘the general interest in crime control,’ ” and it declined “to suspend the usual requirement of individualized suspicion where the police seek to employ a checkpoint primarily for the ordinary enterprise of investigating crimes.” (Citation omitted.) Id.

Wrigley argues that because the roadblock in this case was part of Operation Street Sweep, it was aimed at general crime control and not intended for any permissible purpose under Edmond. Operation Street Sweep was a department-wide operation aimed at cleaning the streets of crime. Officer Johnson testified that in addition to the roadblock, Operation Street Sweep involved “different operations” by the Red Dog Units and the vice and narcotic units, all occurring at the same time. Although it was part of a larger effort, however, the roadblock itself was conducted only by the motorcycle squad, backed up by the DUI countermeasures team. There is no evidence that any other unit participated. And Officer Johnson testified that the primary purpose of the roadblock was checking for driver’s licenses and insurance cards. The presence of the DUI countermeasures team also suggests at least a secondary purpose of detecting drunk drivers.

The use of a checkpoint for these purposes has been approved by the Supreme Court, which has acknowledged that these measures serve the states’ interest in roadway safety. Edmond, 121 SC at 453; Sitz, 496 U. S. at 455; Prouse, 440 U. S. at 658, 663. Thus, standing alone, the roadblock in this case was proper. And the legitimate purposes of the roadblock were not undercut by the fact that other police units were simultaneously conducting different operations as part of a larger, organized effort. We hold, therefore, that the roadblock in this case met the requirements of the Fourth Amendment.

3. Wrigley next argues that the trial court erred in allowing the state to prosecute him on two counts from two separate accusations without requiring the state to file a motion for joinder.

Following his arrest, Wrigley was issued two uniform traffic citations, charging him with driving without a license and DUI. These citations were numbered 1022853 and 0065849, respectively. On April 21,1998, the state filed an accusation against Wrigley, containing the same case numbers as the citations. Count 1 of that accusation was entitled Case No. 1022853 and asserted a charge of driving without a license, citing OCGA § 40-5-20. Count 2 of the accusation was entitled Case No. 0065849-2 and asserted the DUI charge. Then on April 28, 1998, the state made another filing setting out Count 1 under Case No. 1022853 and charging Wrigley with driving without a license, citing a different Code section, OCGA § 40-5-29 (a). The original traffic citations were nolle prossed by the state, as was Count 1 of the April 21 accusation. The state proceeded to trial on Count 1 as set forth in the April 28 filing and Count 2 as alleged in the original April 21 accusation.

Wrigley argues that the April 28 filing superseded the prior accusation and because the later filing contained only one count, the state’s prosecution should have been limited to that one count. The state argues that the April 28 accusation was an amendment affecting only Count 1 of the prior accusation and leaving Count 2 intact.

Under OCGA § 17-7-71 (f), a prosecutor may amend an accusation at any time prior to trial “to allege or to change the allegations regarding any offense arising out of the same conduct of the defendant which gave rise to any offense alleged or attempted to be alleged in the original accusation.” Here, the April 28 filing reflected that it related only to Case No. 1022853 and Count 1 of the prior accusation. And the filing simply changed the Code section cited in Count 1 to assert the same charge asserted against Wrigley in the original citation: driving without a license on his person under OCGA § 40-5-29. Under these circumstances, it is clear that the April 28 filing was simply an amendment to Count 1 and had no effect on Count 2 of the original accusation. Therefore, the trial court did not err in allowing the trial to proceed on the two counts as amended by the April 28 filing, and no motion for joinder was required. Cf. Vanorsdall v. State, 241 Ga. App. 871, 873-874 (2) (a) (528 SE2d 312) (2000) (approving an amendment relating to only one count of the original accusation).

4. Wrigley next argues that the trial court erred in allowing Officer Garrison to testify about the specific conclusions he made from each field sobriety test because it gave the tests “the guise of scientific reliability.” He asserts that the officer’s testimony should have been limited just to a general conclusion as to Wrigley’s sobriety, without reference to any specific conclusions drawn from the individual tests. In support of this argument, Wrigley cites this Court’s prior holding that evidence of such tests is admissible without requiring expert testimony as to their scientific reliability. Hawkins v. State, 223 Ga. App. 34, 39 (1) (476 SE2d 803) (1996). Citing the Court’s statement acknowledging that “physical manifestations of impairment” can be as obvious to a layperson as to an expert, he argues that the officer should have stated what happened and let the jury draw its own conclusions. Id. at 36 (1).

We find no merit to this argument. “ ‘A police officer may give opinion testimony as to the state of sobriety of a DUI suspect and whether appellant was under the influence to the extent it made him less safe to drive.’ ” (Citations omitted.) Tanner v. State, 225 Ga. App. 702 (484 SE2d 766) (1997). Here, Officer Garrison gave his opinion that Wrigley was intoxicated to the extent that he was a less safe driver. He also testified about the factors he considers in administering each of the three field sobriety tests and about how Wrigley performed in conjunction with those factors. Through this testimony, Officer Garrison simply explained the basis for his conclusion that Wrigley was intoxicated. Nothing in our opinion in Hawkins precludes such testimony. Nor do we agree with Wrigley that in explaining the basis for his own conclusion, Officer Garrison somehow invaded the province of the jury.

And to the extent that such evidence represented expert testimony, it was within the trial court’s discretion to determine whether Officer Garrison possessed the requisite learning and experience to testify as an expert. See Werner v. State, 246 Ga. App. 677, 680 (3) (538 SE2d 168) (2000). The evidence showed that Officer Garrison was specially trained in the area of DUI detection, had made over 1,000 DUI arrests, and had conducted “thousands” of field sobriety evaluations. We find no error.

5. Wrigley also contends that the trial court erred in admitting similar transaction evidence of his prior DUI conviction because he argues that the state did not establish that the evidence was obtained as the result of a lawful traffic stop. He asserts that the state was unable to demonstrate the legality of the stop because the arresting officer could not recall the specific reason for the stop.

As an initial matter, we note that Wrigley does not contest the admission of this similar transaction evidence under Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991), and thus we do not address that issue. Rather, he asserts that the evidence was precluded under the Fourth Amendment.

The record shows that Wrigley was arrested for DUI in February 1990 by Officer Kema Sawadee Tillman of the Atlanta Police Department. After following Wrigley and observing that he had difficulty holding his head up, Officer Tillman testified that he stopped Wrigley for a traffic offense. He believed that the offense was an improper lane change, but he was not sure. Officer Tillman testified that he remembered the traffic stop because he admired the red Jaguar that Wrigley was driving. After administering a field sobriety test to Wrigley, Officer Tillman charged him with DUI. Wrigley pled nolo contendere. Wrigley raised no objection to the traffic stop in the prior proceeding and, by pleading nolo contendere, waived any defenses and objections except whether he voluntarily entered the plea and whether it was accepted after proper inquiry by the trial court. Wilson v. State, 240 Ga. App. 681, 682 (523 SE2d 613) (1999). Therefore, Wrigley has waived his right to contest the admission of this similar transaction evidence on the ground that the initial stop was improper.

But even assuming that Wrigley had not waived the right to raise the issue in this proceeding, the evidence would still be admissible. Although Officer Tillman could not remember the details of the stop after so long a time, he testified that he stopped Wrigley only after observing a traffic violation. Once a traffic violation occurred, the officer had grounds to make a traffic stop, precluding any argument that the stop was pretextual:

The United States Supreme Court has held . . . that when an officer sees a traffic offense occur, a resulting traffic stop does not violate the Fourth Amendment even if the officer has ulterior motives in initiating the stop, and even if a reasonable officer would not have made the stop under the same circumstances. See Whren v. United States, 517 U. S. [806] (116 SC 1769, 135 LE2d 89) (1996). In other words, if the driver of a stopped car has broken a traffic law, no matter how relatively minor, a motion to suppress evidence can no longer be based on the argument that the stop was pretextual — at least under federal law. [Cits.]

Brantley v. State, 226 Ga. App. 872, 873 (1) (487 SE2d 412) (1997).

6. Wrigley further asserts error in the following regarding the HGN test:

HGN is based on the well-known and medically accepted principle that nystagmus can be caused by the ingestion of alcohol. HGN test is an accepted common procedure that has reached a state of verifiable certainty in the scientific community, and is admissible as a basis upon which an officer can determine that a driver is impaired by alcohol.

Wrigley contends that this charge is improper because it gave the evidence undue weight in the jury’s eyes.

But this Court has previously rejected a similar argument. In Waits v. State, 232 Ga. App. 357, 360 (3) (501 SE2d 870) (1998), the Court approved substantially the same charge, finding that it did not express any opinion by the trial court, but rather correctly set forth the prior holding in Hawkins v. State, 223 Ga. App. at 38 (1). We see no reason to disturb that finding.

Decided March 2, 2001

Chestney-Hawkins Law Firm, Robert W. Chestney, for appellant.

Joseph J. Drolet, Solicitor, Katherine Diamandis, Assistant Solicitor, for appellee.

And we find that the cases from other jurisdictions cited by Wrigley are factually distinguishable. See Crawford v. Commonwealth, 33 Va. App. 431, 432 (534 SE2d 332) (2000) (holding improper a charge stating that “ ‘BNA testing is deemed to be . . . reliable scientific [evidence in] Virginia when admitted to prove the person’s identity* ”); O’Connell v. State, 17 SW3d 746 (Tex. App. 2000) (disapproving charge instructing the jury that the trial court had taken judicial notice “of the fact that the underlying theory of the Horizontal Gaze Nystagmus (HGN) test is sufficiently reliable” and of the fact that the technique for administering the test is “a reliable indicator of intoxication”).

Judgment affirmed.

Miller and Mikell, JJ, concur.

       Wrigley asserts that the state filed a separate accusation charging only one count of DUI on October 2, 1997, but that accusation does not appear in the record.

       In addition, Wrigle/s nolo contendere plea distinguishes this case from the authority upon which he relies. In each of the cases cited, the prosecution was attempting to introduce evidence of crimes as to which either the defendant had not been charged or the charges were still pending. United States v. Hill, 898 F2d 72 (7th Cir. 1990); United States v. Lego, 855 F2d 542 (8th Cir. 1988); United States v. Renteria, 625 F2d 1279 (5th Cir. 1980).


author: Blackburn, Chief Judge.

text:
    A00A2402.
    JONES et al. v. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY et al.
    (546 SE2d 791)
   Blackburn, Chief Judge.

After receiving a jury verdict in her favor against an unidentified motorist who injured her, Virginia H. Jones appeals the trial court’s order finding that Georgia Farm Bureau Mutual Insurance Company, Cotton States Mutual Insurance Company, and Allstate Insurance Company were liable to her for only the minimum amount of uninsured motorist (“UM”) coverage under OCGA § 33-7-11, on individual and separate policies issued by each insurer. Jones contends that, because she never specifically rejected “excess” UM coverage in writing prior to the accident, she retains the option to acquire excess coverage following the accident, despite the fact that the policies involved provide for only minimum coverage. For the reasons set forth below, we disagree and affirm the trial court.

The record shows that Jones was injured when an unidentified motorist referred to as “John Doe” crashed into another car in which Jones was a passenger. Jones subsequently brought suit against “John Doe,” and a jury awarded her a judgment of $4.5 million.

At the time of the accident, Jones was an insured under policies issued by Georgia Farm Bureau, Cotton States, and Allstate. Under the Georgia Farm Bureau policy which was established by Jones on February 14, 1994, Jones was the original named insured. Two policies issued by Cotton States covered the accident; one policy, initially issued in 1987 to Jones’ husband as the named insured, was changed at the time of Jones’ husband’s death to list her as the named insured, and, on the other policy, Jones was an original named insured along with her husband. Finally, the Allstate policy in question was held by Jones’ mother, who was the named insured, and this policy covered the vehicle in which Jones was a passenger at the time of the wreck.

All of the policies provided for the minimum amount of UM coverage under OCGA § 33-7-11. Prior to the verdict in her case against “John Doe,” Jones applied to each of the insurers for excess UM coverage in the amount of $10,000 over and above the minimum coverage amounts, and her requests were denied. The trial court subsequently entered a verdict against each of the insurers for the minimum amount of UM coverage, and Jones appeals this order.

Jones contends that, pursuant to OCGA § 33-7-11, she retained the right to receive excess UM coverage after her accident because she had not previously executed a written rejection of such excess coverage. Because the statute does not require an insurer to obtain a written rejection of excess coverage, only minimum coverage, we disagree.

OCGA § 33-7-11 (a) (l) requires insurance companies to offer its insureds minimum UM coverage at the creation of a policy. This statute provides:

(a) (1) No automobile liability policy or motor vehicle liability policy shall be issued or delivered in this state to the owner of such vehicle or shall be issued or delivered by any insurer licensed in this state upon any motor vehicle then principally garaged or principally used in this state unless it contains an endorsement or provisions undertaking to pay the insured all sums which [she] shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle, within limits exclusive of interests and costs which at the option of the insured shall be: (A) Not less than $15,000.00 because of bodily injury to or death of one person in any one accident, and, subject to such limit for one person, $30,000.00 because of bodily injury to or death of two or more persons in any one accident, and $10,000.00 because of injury to or destruction of property of the insured; (B) Not greater than the limits of liability because of bodily injury to or death of one person in any one accident and of two or more persons in any one accident, and because of injury to or destruction of property of the insured which is contained in the insured’s personal coverage in the automobile liability policy or motor vehicle liability policy issued by the insurer to the insured.

Although an insurer is required to offer UM coverage initially, an insured is not required by the statute to carry UM coverage. OCGA § 33-7-11 (a) (3) states:

The coverage required under paragraph (1) of this subsection shall not be applicable where any insured named in the policy shall reject the minimum coverage in writing. However, the insurer shall not be required to issue any coverage for any amount greater than the minimum coverage unless the insured shall request in writing such higher limits. The coverage need not be provided in or supplemental to a renewal policy where the named insured had rejected the coverage in connection with a policy previously issued to him by the same insurer.

As we have previously explained:

When the two Code sections are read together, the statutory scheme is evident, and it contains two primary precepts. First, an insurer must provide UM coverage to the insured upon creation of the insurance contract. Second, once an insured rejects UM coverage in writing, the insurer is under no continuing duty to offer UM coverage each time the same policy is renewed.

(Emphasis in original.) Merastar Ins. Co. v. Wheat.

At the outset, the statute, on its face, does not require an insurer to obtain a written rejection of excess coverage, only minimum coverage. OCGA § 33-7-11 (a) (3) explicitly provides: “[T]he insurer shall not be required to issue any coverage for any amount greater than the minimum coverage unless the insured shall request in writing such higher limits.” There is no indication whatsoever that an insured retains a right to excess coverage until he or she rejects it. If the legislature meant for the rejection feature to apply equally to minimum coverage and excess coverage, it would have said so explicitly. Therefore, based upon the plain wording of the statute, an insured does not automatically retain the right to seek excess coverage merely because he or she never rejected such coverage previously.

Any other interpretation cuts against the purpose behind the statute involved here. An insured can elect to carry: (1) no UM coverage; (2) minimum UM coverage; or (3) UM coverage in an amount greater than the minimum coverage and equal to or less than the regular liability limits under the policy. If an insured chooses no coverage, an insurer must obtain a rejection of minimum UM coverage in writing, or, by default, the insured will receive minimum coverage. As a matter of public policy, this written rejection is required: (1) to be certain that insurers notify insureds about the UM coverage available to them and (2) to encourage, without requiring, drivers to elect to carry the minimum amount of UM coverage.

On the other hand, if the insured wishes to receive coverage in excess of the statutory minimum, he or she is required to request such excess coverage in writing. The statute does not require the insurer to obtain a written rejection of such excess coverage, because it was designed to foster a statutorily determined minimum while balancing the burdens and costs of implementing the UM coverage election process equally between the insurer and the insured. If the insurer were required to obtain a written rejection of excess coverage, undue expenses would be placed on the insurer, which would ultimately be passed on to the insured as increased premiums. Accordingly, the statute places the burden on the insured to request additional protection in writing.

[Any other result] would simply create a potential windfall for insureds. . . . No benefit or protection would inure to the insureds under ... a requirement [that an insurer receive a written rejection of excess coverage after the creation of the policy] as [the insureds] would have already made their UM coverage choice after having been informed of their options. A negative impact would be felt by the insureds by such a requirement as the additional cost would be passed through to them in the form of increased premiums.

Decided March 2, 2001.

David G. Kopp, Jesse Copelan, Jr., for appellants.

Spivey, Carlton & Edenfield, J. Franklin Edenfield, B. Carl Buice, John H. Bradley, Robert S. Slocumb, for appellees.

Merastar Ins. Co. v. Wheat, supra.

Therefore, for the reasons discussed above, the trial court appropriately determined that Jones was not entitled to excess UM coverage from the insurers involved in this case.

Judgment affirmed.

Eldridge and Barnes, JJ., concur.

       Jones brings this action through her guardians, Joey Philip Jones and Regina Nicole Jones.

       The statutory provisions cited here are those in effect at the time of the accident herein which are applicable to this case. Effective January 1, 2001, the minimum coverage provided for under the statute was increased to $25,000, $50,000, and $25,000, respectively under OCGA § 33-7-11 (a) (1) (A).

         Merastar Ins. Co. v. Wheat, 220 Ga. App. 695, 697 (1) (469 SE2d 882) (1996).


text:
    A01A0356.
    CHAVARRIA v. THE STATE.
    (546 SE2d 811)
   Blackburn, Chief Judge.

Pablo Chavarria appeals his conviction of possession of marijuana with intent to distribute contending that the trial court erred in failing to excuse two prospective jurors for cause and in failing to allow him to produce evidence at a hearing held pursuant to Batson v. Kentucky. For the reasons set forth below, Chavarria’s conviction is affirmed.

1. In his first enumeration of error, Chavarria asserts that the trial court erred by failing to excuse two prospective jurors for cause. However, “[a]bsent proof of a manifest abuse of discretion, a trial court’s refusal to strike a juror for cause will not be disturbed.” Griffin v. State.

(a) Citing Hutcheson v. State, Chavarria contends that prospective juror Tate should have been excused for cause because he was a career law enforcement officer. In Hutcheson, the Supreme Court of Georgia reversed the defendant’s conviction after the trial court failed to excuse two prospective jurors for cause who were full-time police officers dressed in their uniforms.

In the present case, however, juror Tate indicated during voir dire that he had been retired for three years and that he was no longer Georgia Peace Officer Standards & Training Council-certified. Therefore, this case is controlled by Smith v. State, which involved a prospective juror who was a retired police officer who was no longer connected with any law enforcement agency in any official capacity. Therein, this Court determined that the defendant’s reliance on the Hutcheson case was misplaced. Smith, supra. Based upon our decision in Smith, the trial court did not abuse its discretion by failing to excuse juror Tate for cause.

(b) Chavarria contends that prospective juror Justice should have been excused for cause. Chavarria bases his argument on juror Justice’s admission that she worked as a part-time bookkeeper for the Bainbridge Pharmacy and for the mayor. Chavarria argues that because this case involved a related forfeiture action that could inure to the benefit of the city, and indirectly juror Justice’s boss, the mayor, juror Justice had a pecuniary interest in the outcome. During voir dire, the State argued that juror Justice worked for the mayor in his capacity as a pharmacist, not in his capacity as mayor.

Chavarria’s argument is tenuous, at best. Contrary to Chavarria’s argument, the facts do not support his position that juror Justice had any financial concerns that could be affected by the outcome of his criminal trial. Additionally, “[a] prospective juror may be excused for cause upon a showing that the venireperson holds an opinion ‘so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court’s charge upon the evidence.’ ” Rucker v. State. The record contains no evidence that juror Justice had any financial interest in the case or that she was unable to decide the case based upon the evidence and the trial court’s charge. Therefore, the trial court did not abuse its discretion in denying Chavarria’s motion to excuse juror Justice for cause.

2. In his second enumeration of error, Chavarria contends that the trial court erred in failing to allow him to introduce evidence during a Batson hearing.

The opponent of a peremptory strike has the burden of persuading the trial court that the proponent of the strike acted with discriminatory intent in exercising the strike.. During a Batson hearing, the trial court sits as the finder of fact, and the court’s findings as to whether the opponent of the strike carried its burden of persuasion are entitled to great deference. Further, unless a trial court’s ruling on a Batson motion is clearly erroneous, that ruling must be affirmed.

(Citations and punctuation omitted.) Howard v. State.

In the present case, the State exercised only five of its six peremptory challenges. The State struck four black people and one white person with its peremptory challenges. The selected jury was made up of six white people and four black people. Chavarria testified that he was Mexican. After this showing, the trial court determined that Chavarria had made a prima facie showing for the purposes of his Batson motion, and the trial court required the State to articulate the basis of its peremptory challenges. The State explained that with regard to its first challenge of a black female prospective juror, that juror was struck based upon the prosecutor’s information that she was related to a convicted felon and that the juror’s name was on two or three incident reports as a person in the area of the crime. The prosecutor’s next strike was used against a black female because she had a son that was killed several years ago and the prosecutor’s office had determined that no prosecution was required. The prosecutor thought she might harbor ill will toward the prosecutor or law enforcement in general.

The prosecutor explained that he struck the white male because he had previously had personal disagreements with him in the past. A black male was struck by the State because the prosecutor was informed that the prospective juror had a conviction for possession of marijuana and that the juror had been in state or city court more than once as a defendant. The final strike was used against a black female who was related to a defendant whose case was pending on the present trial calendar.

After the prosecutor presented his explanations, Chavarria’s defense counsel sought to question the prosecutor regarding the source of his information about the prospective jurors. Defense counsel argued that the information related by the prosecutor had not been revealed during voir dire and that the prosecutor had a record for misrepresenting matters to the trial court. The trial court would not allow the interrogation of the district attorney or the prosecuting police officer. The trial court determined that the State had articulated case-related, race-neutral reasons for the exercise of each of its peremptory challenges and denied the Batson motion.

On appeal, Chavarria argues that he was entitled to present evidence and cross-examine the district attorney and the prosecuting police officer. Chavarria relies upon a footnote contained in this Court’s opinion in Gardner v. State to support his argument that he was entitled to cross-examine the prosecutor. Initially, we note that the Gardner opinion is physical precedent only as it did not receive a full concurrence by the three judges in its division. See Court of Appeals Rule 33 (a). The footnote relied upon indicates that the trial judge, in Gardner, heard the explanations for all contested strikes and any additional evidence the parties wished to put forward before rendering a decision. However, our review of law in this area has failed to unearth any binding decision which requires that the trial court allow additional inquiry behind the prosecutor’s racially neutral explanations. In fact, the law puts the decision of whether to inquire further into the trial court’s hands.

“[T]he ultimate inquiry for the trial court is not whether counsel’s reasons are suspect, or weak, or irrational, but whether counsel is telling the truth in his or her assertion that the challenge is not race-based.” (Punctuation omitted; emphasis supplied.) Smith v. State.

In the typical peremptory challenge inquiry, the decisive question will be whether counsel’s race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge. As with the state of mind of a juror, evaluation of the prosecutor’s state of mind based on demeanor and credibility lies peculiarly within a trial judge’s province.

(Punctuation omitted.) Smith, 264 Ga. at 454 (4), quoting Hernandez v. New York.

Additionally, “ ‘[t]here is no requirement that the State’s racially neutral explanation for its use of peremptory strikes be supported by a transcript of voir dire.’ ” Smith, 264 Ga. at 453 (4).

The law provides that a prosecuting attorney’s explanation, even if it is based upon mistake or ignorance, may be sufficient to rebut a prima facie Batson showing, so long as it is not whimsical or fanciful but is neutral, related to the case to be tried, and a clear and reasonably specific explanation of the legitimate reasons for exercising the challenges.

(Citations and punctuation omitted.) Id.

Therefore, at this step in the analysis of a Batson challenge, the trial court must make the determination as to whether the proponent’s reasons are suspect. Again, the opponent of the strike does not have any right, per se, to go behind the proponent’s racially neutral explanations. Because there is no requirement that the prosecutor’s explanations be supported by facts ascertained during voir dire and it was the trial court’s duty to inquire as to any suspected impropriety in determining credibility, the trial court did not err in determining that additional information was not required and in not allowing the cross-examination of the district attorney or the prosecuting police officer.

Decided March 2, 2001

Gilbert J. Murrah, for appellant.

J. Brown Moseley, District Attorney, for appellee.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

        Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986).

        Griffin v. State, 243 Ga. App. 282, 284 (3) (531 SE2d 175) (2000).

        Hutcheson v. State, 246 Ga. 13 (268 SE2d 643) (1980).

        Smith v. State, 201 Ga. App. 82 (1) (410 SE2d 202) (1991).

        Rucker v. State, 270 Ga. 431, 433 (2) (510 SE2d 816) (1999).

        Howard v. State, 243 Ga. App. 836, 837-838 (534 SE2d 202) (2000).

        Gardner v. State, 225 Ga. App. 427 (483 SE2d 912) (1997).

        Smith v. State, 264 Ga. 449, 454 (4) (448 SE2d 179) (1994).

        Hernandez v. New York, 500 U. S. 352, 365 (111 SC 1859, 114 LE2d 395) (1991).


author: Phipps, Judge.

text:
    A00A1554.
    BRUNSON v. THE STATE.
    (544 SE2d 217)
   Phipps, Judge.

A jury found Phillip M. Brunson guilty of driving with an unlawful alcohol concentration and driving under the influence of alcohol to the extent that it was less safe for him to drive. He appeals, claiming that the trial court erred by (1) denying his motion in limine to exclude the results of the State-administered breath test, which was based on his assertion that the State failed to observe him for 20 minutes prior to administering the test to ensure that the test was not tainted by residual mouth alcohol; (2) refusing to charge the jury that, in order to be considered valid, a chemical test of a person’s breath must be performed according to methods approved by the Division of Forensic Sciences (DFS) of the Georgia Bureau of Investigation (GBI) and (3) denying his motion for new trial, which was based on his first two claims of error. Finding no error, we affirm.

On June 5, 1999, at approximately 2:04 a.m., Cherokee County Deputy Sheriff Ronnie Young stopped Brunson’s car for speeding. While talking with Brunson, Young detected an odor of alcohol and noticed that Brunson had red, watery eyes and appeared slightly unsteady on his feet. Brunson told Young that he had drunk a couple of glasses of wine at the airport. With Brunson’s consent, Young conducted an alco-sensor evaluation and several field sobriety tests, including a horizontal gaze nystagmus test, which is designed to detect movement or twitching in the eye.

The alco-sensor test was positive for alcohol. After Brunson completed the other tests, at approximately 2:20 a.m., Young arrested him for driving under the influence of alcohol, handcuffed him and placed him in the back of his patrol car. He read Brunson the Georgia Implied Consent Notice and asked if he would submit to a State-administered breath test. Brunson responded that “he did not know.” At approximately 2:38 a.m., Young transported Brunson to the west precinct for further testing. There, Young again read Brunson the implied consent notice. Brunson then agreed to take the State-administered breath test.

.Cherokee County Deputy Sheriff Joseph Pelletier began administering the breath test to Brunson at 2:50 a.m. The test showed that Brunson had an alcohol concentration of 0.133 grams, which was in excess of the legal limit.

1. Brunson claims that the trial court erred by admitting the results of the State-administered breath test because the State failed to observe him for a period of 20 minutes prior to the test to ensure that, during those 20 minutes, he did not regurgitate previously consumed alcohol, thereby contaminating the breath test by leaving alcohol residue in his mouth.

OCGA § 40-6-392 governs the admissibility at trial of evidence of the amount of alcohol in a person’s blood, urine, breath or other bodily substance, as determined by chemical analysis. For the chemical analysis to be considered valid, it must be performed according to methods approved by the DFS of the GBI.

Relying on testimony admitted at trial, Brunson claims that the 20-minute observation period is a method approved by the DFS and that the State’s failure to follow it rendered the results of the breath test inadmissible. On voir dire, Brunson’s counsel elicited testimony from Pelletier that the methods approved by the DFS require a 20-minute waiting period immediately prior to the test. Young testified that the rule comes from a training manual and that it provides specifically that

[a]ll breath tests will be preceded by a twenty (20) minute waiting period. During this waiting period the subject must be in a controlled environment prohibited from consuming any liquid that contains alcohol and in a situation that should the subject vomit the condition would be noted.

Even if we assume that the rules set forth in the training manual (which was not included in the record) are methods approved by the DFS, “the failure to continuously watch [Brunson] for 20 consecutive minutes prior to the breath test does not require exclusion of the test results.” The evidence shows substantial compliance with the 20-minute rule. Young was with or near Brunson for more than 45 minutes prior to the breath test, leaving him only to walk back and forth from his patrol car to inventory Brunson’s vehicle, obtain items Brunson requested from his car and sign the car over to the wrecker service. During the time that Young was not in Brunson’s immediate presence, Brunson was sitting in the back of the patrol car with his hands cuffed behind him. There was no evidence that Brunson regurgitated during this period. We therefore find no error in the trial court’s refusal to exclude the test results.

Decided January 18, 2001

Reconsideration denied March 5, 2001

Chestney-Hawkins Law Firm, Robert W. Chestney, Sherry B. Lantz, for appellant.

2. Brunson asserts as error the trial court’s refusal to give defendant’s request to charge no. 20, which was taken from OCGA § 40-6-392 (a) (1) (A): “In order to be considered valid, a chemical test of a person’s breath must be performed according to methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation.” Brunson claims that his sole defense on the charge of driving with an unlawful alcohol concentration was that the breath test was invalid because Young failed to follow the 20-minute waiting period approved by the DFS and, therefore, the trial court was required to give the requested instruction.

OCGA § 40-6-392 addresses the admissibility of chemical test results. “The determination of whether evidence should be admitted pursuant to OCGA § 40-6-392 (a) (1) (A) is never a jury question.” The only relevant issue for the jury was the appropriate weight and effect to give the evidence. The trial court did not err by refusing to give the requested instruction.

3. Brunson claims that the trial court erred by denying his motion for new trial and refusing to acknowledge the significance of his sole defense at trial. Based on our conclusions in Divisions 1 and 2, we find no error in the trial court’s denial of Brunson’s motion for new trial.

Judgment affirmed.

Johnson, P. J, and Smith, P. J., concur.

G. Channing Ruskell, Solicitor, for appellee.

       OCGA § 40-6-392 (a) (1) (A).

       At the pretrial hearing on Brunson’s motion in limine to exclude the results of the State-administered breath test, the State introduced a portion of the training manual for the Intoxilyzer 5000, which is apparently the source of the 20-minute rule.

        Berkow v. State, 243 Ga. App. 698, 701 (534 SE2d 433) (2000).

       See id.

       (Citation omitted.) Burke v. State, 233 Ga. App. 778, 779 (3) (505 SE2d 528) (1998).

        Beaman v. State, 161 Ga. App. 129, 130-131 (3) (291 SE2d 244) (1982).

       See Burke, supra; Beaman, supra.


text:
    A00A2327.
    PARKS v. THE STATE.
    (544 SE2d 536)
   Phipps, Judge.

James Parks was charged by accusation with two counts of public drunkenness. Parks pled not guilty and requested a jury trial. At trial, Parks proceeded pro se. The jury found him guilty on both counts, and the trial court sentenced him to serve 30 days in confinement and 23 months on probation.

Parks was charged with being intoxicated and boisterous at an establishment called Shooter’s and at the Waffle House on December 21, 1999, in violation of OCGA § 16-11-41. He filed a motion to dismiss in which he asserted that he was not at either establishment on the date referenced in the accusation. At trial, the accusation was amended to change the date of the alleged offense to November 27, 1999. After sentencing, Parks filed a motion for new trial. Although no transcript of a motion for new trial hearing is included in the record, the order denying the motion indicates that a hearing was conducted.

Parks filed this pro se appeal, claiming that the trial court erred by (1) allowing the assistant solicitor general to amend the accusation at trial, (2) refusing to conduct a hearing on his motion to dismiss, (3) admitting certain evidence offered by the State and (4) excluding certain evidence he sought to present. Because Parks failed to invoke a ruling on his motion to dismiss and has failed to provide a trial transcript or acceptable substitute, we cannot review his claims. We therefore affirm.

1. Parks argues that the trial court erred by allowing the State to amend the accusation at trial to change the date of the alleged offenses.

Although the trial was not reported and Parks has failed to construct a record of the trial, he did raise the issue of the proper date of the alleged offenses in his motion to dismiss. Even if we assume that the motion sufficiently raised the issue, Parks subsequently waived the issue for purposes of appeal. The record does not include an order disposing of the motion to dismiss or any other indication that the motion was addressed. “[W]hen an appellant fails to invoke a ruling on his motion, he has waived the issue for purposes of appeal. [Cits.]” We cannot presume from a silent record that this issue has been preserved for appeal. It is therefore deemed waived.

Decided January 22, 2001

Reconsideration denied March 5,2001

James Parks, pro se.

Gwendolyn R. Keyes, Solicitor, Mary E. Leonard, Thomas E. Csider, Assistant Solicitors, for appellee.

2. Parks claims that the trial court erred by allowing the State’s witnesses to present hearsay evidence and by refusing to allow him to introduce written evidence without examining the evidence or allowing him proper argument on the issue.

Despite the fact that he proceeded pro se, it was Parks’s burden to request that the proceedings on these misdemeanor charges be reported and transcribed or to construct a record of the trial. Without a trial transcript or acceptable substitute, we cannot determine whether Parks preserved the issue for appeal, what testimony Parks contends is objectionable or what evidence Parks sought to present. Under the circumstances, “[w]e must presume that the trial court’s conduct of the trial was proper.”

3. Parks asserts as error the trial court’s failure to conduct a hearing on his motion to dismiss. Because there is no indication that this issue was raised and ruled upon in the trial court, we find that Parks has waived the right to raise it on appeal.

4. Parks lists several other alleged errors in his brief to this court, none of which can be properly addressed without the benefit of a trial transcript or acceptable substitute.

Judgment affirmed.

Johnson, P. J., and Smith, P. J., concur.

        Delong v. State, 185 Ga. App. 314 (363 SE2d 811) (1987).

        Hancock v. State, 244 Ga. App. 118 (534 SE2d 870) (2000).

       Id.; Adams v. State, 234 Ga. App. 696, 697 (2) (507 SE2d 538) (1998).

        Adams, supra.


author: Ruffin, Judge.

text:
    A00A1933.
    In the Interest of B. N. A., a child.
    (546 SE2d 819)
   Ruffin, Judge.

The biological father of B. N. A. appeals the juvenile court’s order terminating his parental rights. The father asserts that there is insufficient evidence supporting the court’s order and that there is no evidence establishing he was properly served with a notice to legitimate the child. For reasons that follow, we reverse.

1. Due process under the Fourteenth Amendment requires that “before a state may sever the rights of a parent in his natural child, the state must support its allegations of the parent’s unfitness ‘by at least clear and convincing evidence.’ This right of due process extends to an unwed father “who demonstrates a commitment to parenthood by participating in the life of his child.” Though, on appeal from a juvenile court’s order terminating parental rights, we review the evidence in the light most favorable to the state, we still must determine whether any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody should have been terminated. We do not weigh the evidence or determine the credibility of witnesses; rather, we defer to the trial court’s factfinding and affirm unless the appellate standard is not met.

Viewed in the light most favorable to the state, the evidence shows that, approximately one year before B. N. A. was born, the mother and father began living together. At the time, the father was on five years probation for a 1994 conviction of violating the Georgia Controlled Substances Act.

B. N. A., who was born prematurely on August 27,1998, suffered from infantile asthma and chronic ear infections. Due to B. N. A.’s respiratory problems, the mother and father were advised to put her on an apnea monitor. The parents, however, failed to heed this advice. After learning of the situation, the Department of Family & Children Services (DFACS) became involved and developed a protective case plan for both parents. The plan required the parents to address B. N. A.’s medical needs, to cooperate with DFACS, and to improve their parenting skills with the help of a parenting aide. The mother and father complied with the case plan, and DFACS closed the file.

In June or July 1999, the father and mother separated. The father attributed the separation to the mother’s drug problem. He explained that because the mother would leave and “stay gone a while,” he figured she was abusing drugs. The father’s suspicions were well founded. In July 1999, police found cocaine on a mirror in a hotel room were the mother and B. N. A. were staying. The mother was incarcerated after her arrest and subsequently pled guilty to violating the Georgia Controlled Substances Act.

Following the mother’s arrest, DFACS took temporary custody of B. N. A. A caseworker testified that, at that time, the father went to DFACS and asked “what he could do to visit with the child.” The DFACS caseworker informed the father that “he would need to legitimate the child and then work on a case plan.”

On August 3, 1999, the juvenile court conducted a deprivation hearing and found that B. N. A. was deprived. The court awarded temporary custody of B. N. A. to DFACS and, in a written order entered September 8, 1999, ordered the department to establish a reunification plan for the father. The court also required DFACS to establish a visitation schedule for the father. Although DFACS implemented a plan for the mother, it failed to establish either a reunification plan or a visitation schedule for the father. According to a DFACS caseworker, the department did not comply with the order because of its policy to not provide a putative father with a case plan until he legitimates the child.

On December 22, 1999, approximately four months after DFACS took temporary custody of B. N. A., the agency petitioned the juvenile court to terminate the mother’s and father’s parental rights. On March 7, 2000, the juvenile court conducted an evidentiary hearing on the petition. The mother and father were represented by counsel, and the child was represented by a guardian ad litem.

The transcript of the termination hearing shows that from June 1999, when the mother and father separated, until the March 7, 2000 termination hearing, the father provided only limited financial support for B. N. A. Specifically, the evidence showed that, although the father was gainfully employed, he gave the mother only approximately $100 for B. N. A.’s support. A caseworker testified that the father was never instructed to pay child support, and when asked why he never provided any further support for the child, the father responded that he “wasn’t sure [he] was supposed to.” Similarly, the father explained that he had failed to legitimate B. N. A. up to that time because he “thought [he] was going to be told when to start doing things that [he] was supposed to do, like parenting classes, stuff like that.”

As for the father’s personal contact with the child, the evidence showed that he accompanied the mother on five visits with B. N. A. and that he appeared for two visits when B. N. A. was not there. According to a caseworker, although the father would make attempts to interact with [B. N. A.] and she would . . . respond to that,” he usually just sat and watched the child play by herself. As a consequence, B. N. A. appeared unenthusiastic about seeing the father, and there was no apparent bonding between the father and the child. Again, however, DFACS never established a visitation schedule for the father as ordered by the court, and the father never contacted DFACS to request his own visits with the child.

The evidence also showed that the father lacked stable housing. During the eleven months preceding the hearing, the father lived in four different residences, and before that he “moved in and out with [his] mom.” At the time of the hearing, the father was again living with his mother and had criminal charges pending against him related to drug distribution and shoplifting.

A DFACS caseworker testified that B. N. A. is currently living with a foster family who has voiced their intent to adopt her if she is placed for adoption. According to the DFACS caseworker, B. N. A. has bonded with the family. When asked why she acted so quickly to terminate the mother’s and father’s parental rights, the caseworker responded: “My job as a caseworker is to find permanency for this child.” Finally, the child’s guardian ad litem testified that it was a close call, but recommended that the court terminate the father’s parental rights.

Based on this evidence, the juvenile court terminated both parents’ rights in B. N. A. As for the father, the court found that he caused B. N. A. to be deprived and that the deprivation was likely to continue because he failed to legitimate the child, failed to support the child, and failed to visit and bond with the child. In its order, the court attributed DFACS’s failure to establish a reunification plan to the father’s failure “to legitimate [B. N. A.] in a timely manner.” Although the court stated that it had informed the father that DFACS’s “policy was that it would not offer him a [reunification plan] until he legitimated the child,” the court inexplicably failed to mention that it had expressly and unconditionally ordered DFACS to “develop a case plan for reunification with the father of [B. N. A.]” Likewise, the court faulted the father for failing to ask DFACS for “instructions as to what he needed to do to get his child returned to him” and for failing to ask DFACS “for any visits on his own.” Again, the court failed to mention its unconditional written order that “a visitation schedule be established by the Department providing for visitation between the father and B. N. A.”

Georgia law requires a court to conduct a two-step analysis to determine whether a parent’s rights to his or her child should be terminated. First, a court must determine whether the state has met its burden of presenting “clear and convincing evidence of parental misconduct or inability.” Second, if the court finds such evidence, it must then determine whether “termination of parental rights is in the best interest of the child.” To satisfy the first part of this inquiry, the evidence must establish that (i) the child is deprived, (ii) the parent’s lack of proper parental care or control is causing the deprivation, (iii) this cause is likely to continue or will not be remedied, and (iv) the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child.

In this case, B. N. A.’s deprivation was established by the juvenile court’s unappealed deprivation order. Of greater concern, and what was not established by clear and convincing evidence, is whether the father’s lack of proper parental care or control is causing the deprivation. In making this determination, the juvenile court was required to consider several factors which could negatively impact on the father’s ability to care for the child, such as a drug abuse problem, imprisonment for a felony conviction, emotional neglect, and other past or present egregious conduct toward the child. In addition, where the child is not in the father’s custody,

the court shall consider, without being limited to, whether the parent without justifiable cause has failed significantly for a period of one year or longer prior to the filing of the petition for termination of parental rights: (i) To develop and maintain a parental bond with the child in a meaningful, supportive manner; (ii) To provide for the care and support of the child as required by law or judicial decree; and (iii) To comply with a court ordered plan designed to reunite the child with the parent or parents.*

Although a juvenile court is not required to focus exclusively on the latter factors when a child is not in the custody of the parent, the court should remain mindful that “ ‘the time limitation in OCGA § [15-11-94] (b) (4) (C) ... is designed to give the parent whose rights are subject to termination sufficient time and opportunity to demonstrate his or her ability to comply with the terms of the court’s order.’ ”

In this case, there is not clear and convincing evidence that the father’s lack of proper parental care or control is causing B. N. A.’s deprivation. Most troubling is the fact that only six months elapsed between the time the juvenile court entered its order requiring DFACS to establish a reunification plan and visitation schedule for the father and the time of the termination hearing. During this time, the father had no opportunity to comply with the court-ordered plan designed to reunite him with B. N. A., because DFACS never established a plan. Had DFACS established the court-ordered plan, the father would have had a “clear description of the specific actions to be taken by [him] and the specific services to be provided by [DFACS] ... in order to bring about the identified changes that must be made in order for [B. N. A.] to be safely returned home.” Similarly, if DFACS had complied with the court’s order to establish a visitation schedule, then perhaps the father would have had a better opportunity to form a more meaningful relationship with B. N. A.

Decided March 5, 2001.

Michael J. Tuck, for appellant.

We are not saying that the father is without fault. Evidence shows that the father was previously convicted of a drug offense and is currently charged with committing other offenses. Other evidence shows that the father could have taken greater initiative in reuniting himself with B. N. A. However, under the circumstances of this case, such evidence alone does not constitute clear and convincing evidence that the father is causing, and will continue to cause, B. N. A. to be deprived.

We are concerned that DFACS acted so expeditiously to completely sever the father’s parental relationship with B. N. A., while at the same time ignoring the juvenile court’s unqualified written order to establish a reunification plan and visitation schedule. We are equally concerned that the juvenile court permanently terminated the father’s parental rights, while completely disregarding DFACS’s failure to comply with its order aimed at reunifying the father with B. N. A.

For these reasons, the order of the juvenile court terminating the father’s parental rights in B. N. A. is reversed.

2. In light of our conclusion in Division 1, it is unnecessary to address the father’s other enumeration of error.

Judgment reversed.

Andrews, P. J., and Ellington, J., concur.

Thurberi E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Laura W. Hyman, Assistant Attorneys General, Waycaster, Morris, Johnson & Dean, Cynthia N Johnson, for appellee.

        Thorne v. Padgett, 259 Ga. 650, 651 (386 SE2d 155) (1989) (quoting Santosky v. Kramer, 455 U. S. 745 (102 SC 1388, 71 LE2d 599) (1982)).

       Id.

       See In the Interest of L. S., 244 Ga. App. 626-627 (536 SE2d 533) (2000).

       See id.

       See OCGA § 15-11-94 (a); In the Interest of K. A. C., 229 Ga. App. 254, 255 (3) (493 SE2d 645) (1997).

       OCGA § 15-11-94 (a). See Thorne, supra at 651.

       Id.

       OCGA § 15-11-94 (b) (4) (A).

       See In the Interest of D. H., 243 Ga. App. 778, 782 (534 SE2d 466) (2000).

       See OCGA § 15-11-94 (b) (4) (B).

       OCGA § 15-11-94 (b) (4) (C).

       See In the Interest of A. M. B., 219 Ga. App. 133, 135-136 (464 SE2d 253) (1995).

        In the Interest of K. A. C., supra at 254 (quoting In the Interest of B. L., 196 Ga. App. 807, 808 (1) (397 SE2d 156) (1990)).

       OCGA § 15-11-58 (c) (3).

       The transcript reveals that, when asked about the charges, the father invoked his Fifth Amendment privilege against self-incrimination. This constitutes “ ‘an implied admission that a truthfiil answer would tend to prove that [he] had committed the act.’ ” In the Interest ofS. B„ 242 Ga. App. 184, 186-187 (1) (528 SE2d 278) (2000).


text:
    A00A1959.
    WATKINS v. THE STATE.
    (546 SE2d 363)
   Ruffin, Judge.

A Fulton County grand jury indicted Timothy Watkins for armed robbery and aggravated assault. Following a jury trial, Watkins was convicted of robbery by force and simple assault. On appeal, Watkins contends the trial court erred in (1) failing to direct a verdict of acquittal; (2) denying two motions in limine; (3) improperly limiting voir dire; and (4) instructing the jury. Watkins’ contentions lack merit, and we affirm.

1. Construed to uphold the verdict, the evidence shows that Raymond Etris employed Watkins as a handyman and house painter. According to Etris, Watkins would go with him to purchase paint, and Watkins knew that he carried a substantial amount of cash.

On July 13, 1996, at around 10:00 a.m., Watkins showed up at Etris’ house. Although Watkins normally came through the front door, on this day he went to the back door. Watkins knocked, and Etris unlocked the door and let him into the house. After speaking with Etris for a few minutes, Watkins started to leave. He asked if Etris would give him some ice to take with him, and Etris walked into the kitchen followed by Watkins. As Etris entered the kitchen, he saw a man, whom he did not know, standing in the kitchen.

The man in the kitchen wielded a frying pan, which he used to bludgeon Etris. Etris attempted to back up, but was not able to move. According to Etris, Watkins “was right in behind me and he was just bumping me, a bumping against me to where I couldn’t back up.” Etris asked Watkins, “what in the world are you doing?” He attempted to pull Watkins between him and his assailant, but Watkins “just stepped over to the side and let [the assailant] by.” Etris fell into a china cabinet, breaking dishes, before hitting the floor. The assailant fell on top of Etris and straddled him while attempting to remove his wallet from his back pocket. Etris testified that Watkins was standing over both him and the assailant. Etris asked Watkins to “pull [the assailant’s] foot off me. And [Watkins] said, T don’t know. I don’t know.’ ” After the assailant succeeded in removing Etris’ wallet, he said, “I’ve got it, let’s go.” The assailant and Watkins then fled together, and Watkins never returned to Etris’ house or called to see how he was doing. At the time his wallet was stolen, Etris estimated that it contained between $400 and $500.

On appeal, Watkins asserts that he never laid a hand on Etris and that there was no “nexus” between him and the assailant. We disagree. According to Nicole Ferraro, Etris’ neighbor, the morning of the robbery she saw Watkins walking toward Etris’ house with a man who matched the assailant’s description. Rather than going to the front door, as he usually did, Watkins walked to the back door, which required Etris to unlock that door and enabled the assailant to enter. During the attack, Watkins blocked Etris’ avenue of escape. Finally, after the assailant took Etris’ wallet, he said, “I’ve got it, let’s go,” after which Watkins fled the scene with the assailant. Accordingly, Watkins’ conduct before, during, and after the robbery are all indicative of his guilt, and the trial court did not err in denying his motion for directed verdict.

2. Watkins filed two motions in limine — one to preclude the State from introducing photographs of the victim, and another to prevent the State from eliciting testimony that Watkins never returned to the crime scene. The trial court denied both motions, and Watkins alleges the court erred in so doing. We find no error.

(a) As a result of the attack, Etris sustained numerous injuries including lacerations to his arm and a gash to his forehead that required 11 stitches. During the trial, the court admitted photographs depicting the extent of Etris’ injuries. Watkins argues that the introduction of these “inflammatory” photographs violated his right to a fair trial.

“The admission of photographs into evidence is a matter within the discretion of the trial court.” “[U]nless the potential for prejudice in the admission of evidence substantially outweighs its probative value, the Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value.” Here, Watkins was charged with aggravated assault for using a weapon capable of causing serious bodily harm. Thus, the extent of Etris’ injuries was clearly relevant, and the trial court did not abuse its discretion in admitting photographs depicting those injuries.

(b) Watkins also asserts that the trial court erred in allowing the State to introduce evidence that he failed to return to Etris’ home on the day of the attack. According to Watkins, he had no duty to return to the crime scene, and the evidence that he failed to do so lacked probative value and was highly prejudicial. We find Watkins’ assertions patently absurd. The evidence that Watkins never returned to Etris’ house suggests that he was attempting to flee with the assailant, rather than chase the assailant, as he contends on appeal. As a general rule, evidence of flight, which is circumstantial evidence of guilt, is both relevant and admissible. Accordingly, we find no abuse of discretion in the trial court’s denial of Watkins’ motion in limine.

3. During voir dire, Watkins’ attorney asked prospective jurors whether any of them had ever employed “a handyman or maid or someone who worked at [their] house who [they] believed robbed [them] before?” The trial court, sua sponte, disallowed the question, and the attorney stated, “I have no more questions, your honor.” On appeal, Watkins asserts that the trial court erred in limiting his questioning of prospective jurors. By failing to lodge any objection to the trial court’s ruling, however, Watkins is barred from raising the alleged error on appeal.

4. In two enumerations of error, Watkins contends that the trial court erred in instructing the jury. Watkins primarily argues that the trial court erred in instructing the jury on conspiracy. As our Supreme Court recently noted, however, “[i]t is not error to charge on the subject of conspiracy when the evidence tends to show a conspiracy, even if a conspiracy is not alleged in the indictment.” “A conspiracy may be inferred from the nature of the acts done, the relation of the parties, the interest of the alleged conspirators, and other circumstances.” Here, the evidence certainly raised the issue of conspiracy, and the trial court did not err in charging the jury accordingly.

After the trial court charged the jury on conspiracy, Watkins requested that the court instruct the jury that it could find him guilty of conspiracy as a lesser included offense. Watkins appeals the trial court’s denial of this request. Again, we find no error. The evidence established the completion of the offenses of robbery and assault, the crimes for which Watkins was convicted. Watkins is guilty of these offenses as a party to the crime. Having completed the greater offenses, Watkins is not entitled to a jury charge on the lesser offense.

Decided March 5, 2001.

Steven E. Phillips, for appellant.

Paul L. Howard, Jr., District Attorney, George W K. Snyder, Jr., Bettieanne C. Hart, Assistant District Attorneys, for appellee.

Judgment affirmed.

Andrews, P. J., and Ellington, J., concur.

       See Mills v. State, 244 Ga. App. 28, 29-30 (2) (535 SE2d 1) (2000) (standard for reviewing denial of motion for directed verdict of acquittal).

       See Chambers v. State, 244 Ga. App. 138, 140 (534 SE2d 879) (2000).

       (Punctuation omitted.) Sullivan v. State, 242 Ga. App. 613, 614 (2) (530 SE2d 521) (2000).

       (Punctuation omitted.) Warren v. State, 233 Ga. App. 699, 700 (2) (505 SE2d 777) (1998).

        Sullivan, supra.

       See Shaheed v. State, 245 Ga. App. 754, 755 (1) (538 SE2d 823) (2000) (“Flight is circumstantial evidence of consciousness of guilt”).

        Plaza Properties v. Prime Business Investments, 273 Ga. 97,102 (538 SE2d 51) (2000).

        Holmes v. State, 272 Ga. 517, 519 (6) (529 SE2d 879) (2000).

       (Punctuation omitted.) Agnew v. State, 267 Ga. 589, 590 (2) (481 SE2d 516) (1997).

       See id.

       See Byram v. State, 189 Ga. App. 627, 628 (3) (376 SE2d 909) (1988).

       Id.