text:
    A95A1714.
    STONE v. THE STATE.
    (461 SE2d 548)
   Johnson, Judge.

Timothy Lowell Stone appeals from his convictions for armed robbery and possession of a firearm during commission of a felony. He also challenges the sentence imposed in connection with the armed robbery offense.

1. Stone alleges that the trial court erred by refusing to exercise discretion in sentencing him to life imprisonment on the armed robbery count. Prior to trial, Stone was notified of the State’s intent to introduce his prior felony convictions as evidence in aggravation of punishment at the time of sentencing. After the jury returned a guilty verdict, the State asked the court to impose a life sentence, a maximum sentence for armed robbery, pursuant to OCGA § 16-8-41 (b), because of Stone’s status as a recidivist. OCGA § 17-10-7 (a). The trial court has no discretion to probate or suspend any portion of the maximum sentence prescribed for the offense because the conviction required a life sentence. Therefore, Stone’s assertion that the trial court erred in declining to exercise discretion in sentencing is without merit. In State v. Baldwin, 167 Ga. App. 737, 740 (4) (307 SE2d 679) (1983), this court determined that a trial court has no discretion to probate or suspend a portion of a mandatory life sentence imposed pursuant to OCGA § 17-10-7 (a). In Baldwin, as in this case, the imposition of a life sentence was mandatory pursuant to OCGA § 17-10-7 (a), and the court held that OCGA § 17-10-1 (a), which expressly abrogates the trial court’s discretionary power to grant probation in cases in which life imprisonment or capital punishment is imposed, applied. See Mosley v. State, 203 Ga. App. 275, 276-277 (4) (416 SE2d 736) (1992). Because the required sentence for a recidivist convicted of the offense of armed robbery is life imprisonment and because OCGA § 17-10-1 (a) does not permit a trial court to exercise discretion with regard to a life sentence imposed under these circumstances, we conclude that the trial judge did not err in imposing a life sentence on the armed robbery conviction.

2. Stone asserts that his second trial violated the double jeopardy provisions of the United States Constitution, the Georgia Bill of Rights and the statutory prohibition against successive prosecutions. The facts giving rise to this claim are highly unusual. After a jury was impaneled, Stone’s counsel learned that the attorney representing Stone’s co-defendant was going to testify for the State regarding his discovery of Stone’s probation identification card near the scene of the crime. Stone moved for severance and for a mistrial, arguing that the introduction of this evidence by the co-defendant’s counsel created a defense which was antagonistic to Stone’s defense and prejudiced his right to a fair trial. The trial court agreed and granted the motion for severance, electing to go forward with the trial of the co-defendant. Instead of granting a mistrial, however, the court continued Stone’s case. The trial court suggested that severance would not give rise to a double jeopardy claim and specifically confirmed on the record that Stone was waiving any potential double jeopardy objection.

“The grant or denial of a motion to sever is left in the discretion of the trial court. In the exercise of that discretion, the trial court should grant a severance before or during the trial whenever it appears necessary to achieve a fair determination of the guilt or innocence of a defendant. Accordingly, that the severance and mistrial were ordered after jeopardy had attached is no ground for sustaining appellant’s plea of double jeopardy.” (Citations and punctuation omitted; emphasis in original.) James v. State, 191 Ga. App. 723, 724 (382 SE2d 658) (1989). We believe that the trial court’s grant of a continuance was equivalent to the grant of a mistrial, and that the holding in James, supra, applies here. See also Hill v. State, 239 Ga. 278, 281 (3) (236 SE2d 626) (1977), which suggests that a defendant who consents to severance during a trial cannot later plead double jeopardy. Accordingly, Stone’s assertion that his second trial violated his federal and state protections against double jeopardy is without merit.

3. Stone also asserts that he was denied effective assistance of counsel because his trial attorney failed to raise a plea in bar to the second trial on double jeopardy grounds; because he was not advised of the sentence which would be imposed in the event of a conviction; and because trial counsel’s performance was generally deficient. As we held in Division 2, there was no legal basis to support a plea of double jeopardy. Therefore, trial counsel’s failure to raise it did not affect the outcome of the case.

An evidentiary hearing was conducted by the trial court in connection with Stone’s motion for new trial which first raised the ineffective assistance of counsel claim. Trial counsel testified that he spoke with Stone about the recidivist statute and about a life sentence, urging Stone to allow him to initiate plea negotiations with the State. Stone, maintaining that he was innocent, refused to authorize any discussions with the State regarding a plea. We find Stone was adequately informed of the sentence which would be imposed by the court in the event the jury returned a guilty verdict.

“[A]n appellant must overcome the strong presumption that the representation was effective. ... A trial court’s finding that a defendant has not been denied effective assistance of trial counsel will be affirmed unless clearly erroneous.” (Citations and punctuation omitted.) Pardo v. State, 215 Ga. App. 317, 319 (6) (450 SE2d 440) (1994). The trial judge had the opportunity to observe counsel during the trial of the case and heard trial counsel’s testimony regarding his representation of Stone at the hearing on the motion for new trial. The trial court’s conclusion that the assistance of counsel at trial was effective under the law was not clearly erroneous and will not be disturbed.

Decided August 15, 1995.

Peter D. Johnson, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       Cf. Knight v. State, 243 Ga. 770, 771 (257 SE2d 182) (1979) and Wallace v. State, 216 Ga. App. 718, 720 (5) (455 SE2d 615) (1995) in which the exercise of discretion was mandated where maximum sentences were for terms of years.


source: Caselaw Access Project

author: Blackburn, Judge.

license: Public Domain

text:
    A95A1300.
    A95A1301.
    BERGMANN v. McCULLOUGH. SCOTT v. McCULLOUGH.
    (461 SE2d 544)
   Blackburn, Judge.

Appellant/respondent, John S. Bergmann, pro se, appeals the order of the trial court granting appellee, Dwayne McCullough’s petition to adopt his son, Dennis Martin Bergmann (the minor child). Appellant/intervenor, Betty S. Scott, pro se, appeals the trial court’s order granting her grandparent visitation of the minor child under OCGA § 19-8-19 upon her motion to intervene in the adoption proceeding. Inasmuch as both cases arise out of the underlying adoption action, we have consolidated them for disposition in a single opinion.

The minor child was born out of wedlock on December 26, 1990, shortly after Bergmann was incarcerated in the Waupun Correctional Institution, Waupun, Wisconsin, upon two fifteen-year sentences to confinement. On July 6, 1992, the minor child’s mother, Melinda Terrell McCullough, and McCullough were married in Indiana. The Mc-Culloughs and the minor child moved to Georgia later in the same month. On September 23, 1993, the Lawrence Circuit Court of the State of Indiana (Indiana court) adjudged Bergmann to be the minor child’s natural father at Bergmann’s behest. Approximately two months later, McCullough commenced the underlying adoption proceeding. The Indiana court granted Bergmann’s mother, Scott’s petition for grandparent visitation rights in April 1994. The trial court’s actions granting McCullough’s petition to adopt and Scott’s petition for grandparent visitation rights occurred on January 12, 1995, and Bergmann’s and Scott’s appeals followed.

Case Nos. A95A1300 and A95A1301

1. Citing the Parental Kidnapping Prevention Act (PKPA), 28 USC § 1738A, Bergmann and Scott first challenge the jurisdiction of the trial court. Bergmann argues that the trial court lacked jurisdiction because its action was taken in conflict with continuing jurisdiction in the Indiana court which had earlier adjudged him to be the natural father of the minor child. Scott likewise argues continuing jurisdiction in the Indiana court upon the Indiana court’s grant of grandparent visitation rights as to the minor child. Both arguments fail for lack of a child custody determination in the Indiana court within the meaning of the PKPA.

The PKPA sets out the jurisdictional criteria which govern all interstate child custody disputes. Wilson v. Gouse, 263 Ga. 887, 890 (441 SE2d 57) (1994). Subsection (d) of 28 USC § 1738A provides that “[t]he jurisdiction of a court of a State which has made child custody determination consistently with the provisions of this section continues as long as the requirement of subsection (c) (1) of this section continues to be met and such State remains the residence of the child or of any contestant.” Subsection (c) pertinently provides that “[a] child custody determination made by a court of a State is consistent with the provisions of this section only if — (1) such court has jurisdiction under the law of such State; and (2) one of the following conditions is met: (A) such State (i) is the home State of the child on the date of the commencement of the proceeding. . . .” “ ‘[H]ome State’ means the State in which, immediately preceding the time involved, the child lived with his parents, a parent, or a person acting as parent, for at least six consecutive months. . . .” 28 USC § 1738A (b) (4).

In adjudging Bergmann to be the minor child’s natural father, the Indiana court’s order, by its own terms, deferred any ruling “regarding custody, visitation, child support and/or payment of medical expenses, until further petition of the parties.” The evidence before us indicates that the parties, Bergmann and Melinda Terrell McCullough, did not further petition the Indiana court, rendering the court’s order a final order in which a child custody determination was not made. Inasmuch as the judgment of the Indiana court thus became final without making a child custody determination, no jurisdiction attached under the PKPA ab initio. 28 USC § 1738A (a). Hence, none could continue. 28 USC § 1738A (d).

Approximately five months after the Indiana court rendered its judgment in Bergmann’s paternity action, it granted Scott’s petition for grandparent visitation. The Indiana court’s grant of grandparent visitation, however, came in consequence of proceedings which Scott instituted more than a year after the minor child had moved to Georgia with his mother. Although the Indiana court made a child custody determination incident to Scott’s petition for grandparent visitation, such determination was insufficient to confer PKPA jurisdiction in that Georgia, rather than Indiana, was the minor child’s home state in the six months which preceded Scott’s action in Indiana to obtain visitation rights. 28 USC § 1738A (b) (4); (c) (2) (A).

Accordingly, we conclude that jurisdiction in the trial court was not foreclosed.

2. Bergmann contends that the trial court abused its discretion in granting McCullough’s petition to adopt the minor child insofar as it found as fact: (1) that Bergmann had not attempted to make bona fide contact with his minor son; (2) that, as an incarcerated convicted felon who has never lived with the minor child, Bergmann has not established a familial bond with the child; and (3) that Bergmann’s failure to provide support to the minor child for a period in excess of one year was unjustifiable notwithstanding his incarceration because he was able to arrange for paid legal representation during that time period; and that McCullough was suitable to adopt the minor child.

It is uncontroverted in the record that Bergmann never lived with the minor child due to his incarceration before the child was born. Although Bergmann sent letters to the minor child, he deposes that it was never his intent that they be read to the child. Further, Bergmann indicates that despite his incarceration, his parents provided him legal representation at their expense, and, had the McCulloughs been willing to allow visitation, he could have had them provide some support for the minor child. Moreover, the record reflects that the Candler County Department of Family & Community Services recommended that McCullough be permitted to adopt the minor child upon finding the McCullough home to be suitable. Apart from his argument on appeal, Bergmann offers no evidence to the contrary. Accordingly, we conclude that the trial court did not abuse its discretion and that its findings were supported by clear and convincing evidence. See In the Interest of S. K. L., 199 Ga. App. 731, 734 (405 SE2d 903) (1991).

Case No. A95A1300

3. Bergmann also enumerates that the trial court erred by refusing to permit him to appear by telephone at the final hearing in the case, denying him due process of law and the right to confront and cross-examine the witnesses against him.

Nothing in the record indicates that Bergmann sought leave of the trial court to appear by telephone at the trial court’s final hearing in the instant case. “It is not the function of this court to cull the record on behalf of a party in search of instances of error. The burden is upon the party alleging error to show it affirmatively in the record.” (Citations and punctuation omitted.) Gale v. Obstetrics &c. of Atlanta, P. C., 213 Ga. App. 614, 615 (445 SE2d 366) (1994). Accordingly, we find this enumeration of error to be without merit.

4. Bergmann last asserts that he was denied the effective assistance of counsel for counsel’s failure to enter his deposition in the record.

“The Sixth Amendment to the federal Constitution and Art. I, Sec. I, Par. XIV of the Georgia Constitution provide for effective assistance of counsel for one charged with a criminal offense, not participants in a civil dispute. Cf. Haynes v. City of Lake City, 136 Ga. App. 112, 113 (220 SE2d 33) (1975).” Calhoun v. Maynard, 196 Ga. App. 219, 220 (395 SE2d 645) (1990). In any event, the record reflects that Bergmann’s deposition was considered by the trial court. Further, even if we considered Bergmann’s deposition as attached to his brief on appeal, our decision would remain the same. In light of the foregoing, we likewise conclude this claim of error to be without merit.

Case No. A95A1301

5. Finally, Scott contends that the trial court abused its discretion in limiting her visitation rights to the minor child to four, two-day visits per year at a distance of not more than 100 miles from the minor child’s home. In this regard, Scott urges this court to reverse and remand with direction that expanded visitation rights which she proposes by her brief on appeal be ordered below. In response, McCullough argues that this court should reverse the trial court’s grant of grandparent visitation rights in light of Brooks v. Parkerson, 265 Ga. 189 (454 SE2d 769) (1995), holding Georgia’s “Grandparent Visitation Statute,” OCGA § 19-7-3, unconstitutional under the state and federal constitution.

“Under the Appellate Practice Act, the dismissal of an appeal is mandatory for the three specific instances contained in subsection (b) of OCGA § 5-6-48, one of which is (3) Where the questions presented have become moot. A moot case is one which seeks to determine an abstract question which does not arise upon existing facts or rights.” (Citations and punctuation omitted.) Kappers v. DeKalb County Bd. of Health, 214 Ga. App. 117 (446 SE2d 794) (1994). The trial court’s grant of grandparent visitation was grounded in authority contained in OCGA § 19-7-3 as an action taken before such statute was declared unconstitutional. That such authority has been held unconstitutional renders moot any question of abuse of discretion thereunder. There is no cross-appeal. “This court will upon its own motion dismiss an appeal where it affirmatively appears that a decision would be of no benefit to the complaining party.” (Citation and punctuation omitted.) Kappers, supra; Brooks, supra. We elect to do so here.

Decided August 2, 1995

Reconsideration denied August 16, 1995

John S. Bergmann, pro se.

Betty J. Scott, pro se.

Callaway, Neville & Brinson, William J. Neville, Jr., for appellee.

Judgment affirmed in Case No. A95A1300. Appeal dismissed in Case No. A95A1301.

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

       Under the PKPA “ ‘custody determination’ means a judgment, decree, or other order of a court providing for the custody or visitation of a child. . . .” 28 USC § 1738A (b) (3).


author: Birdsong, Presiding Judge.

text:
    A95A1531.
    PIQUE v. LEE et al.
    (461 SE2d 302)
   Birdsong, Presiding Judge.

Myrtle Pique brought suit against appellees seeking damages for injuries allegedly sustained when she fell as she unsuccessfully attempted to take her assigned seat in a barber-style chair at The Suburban Barber & Styling Shop. Arguing that material issues of fact remain, Pique has raised this challenge to the trial court’s order granting appellees’ motion for summary judgment. The trial court determined that Pique could not recover since she “had equal knowledge of the conditions, and thus, there is no right to recovery.” Held:

Because material questions of fact remain to be resolved, we reverse.

Although the record indicates that Pique, a business invitee, had frequented appellees’ business on many occasions for four or five years, there is evidence that Pique was not familiar with the particular chair to which she was directed, and she was not familiar with Ms. Goh, “a new girl” who motioned appellant to sit in Ms. Goh’s chair. The evidence established that the chair could have been stabilized in one of two ways. It could have been locked into an immobile position by the use of a control lever located on the side of the chair or it could have been manually held in place by a person. Apparently, since Pique had been directed to sit in this particular chair, she assumed, according to her prior experiences in sitting in appellees’ chairs, that Ms. Goh had locked the chair into a secure position, when, in fact, Ms. Goh had failed to set the control lever and immobilize the chair. Thus, when Pique, who was 69 years old, attempted to sit down, the chair rotated suddenly and without warning, causing her to lose her balance and fall. Due to the force of her fall, appellant allegedly suffered serious injuries including a broken shoulder, broken ribs, cuts and abrasions to her ankle and leg as well as certain permanent injuries.

The record contains conflicting evidence as to appellant’s equal knowledge of any defective condition of this chair. Secondly, there are separate issues of the negligence of appellees’ employee in failing to stabilize the chair; these are issues which do not involve the equal knowledge defense. We reject appellees’ principal argument that as a matter of law appellant failed to exercise ordinary care for her own safety. In support of their position appellees rely upon Freeman v. Oak Grove Animal Clinic, 214 Ga. App. 362 (448 SE2d 28) (plaintiff tripped on parking lot gravel containing large clumps of grass because she failed to watch where she was walking); Fitzgerald v. Storer Cable Communications, 213 Ga. App. 872 (3) (446 SE2d 755) (plaintiff tripped over cable that extended across his own driveway, a cable that had been present for about 20 months); Federated Dept. Stores v. Clum, 205 Ga. App. 798 (423 SE2d 716) (plaintiff tripped on Oriental carpet that had been partially unrolled for her to see, shortly after she had examined it). However, reliance on this line of cases is misplaced because appellant’s situation is factually distinguishable from these cases, which stand for the proposition that a plaintiff must exercise due care and not allow oneself to be distracted or inattentive. The evidence of record fails to demonstrate that Pique was either distracted or inattentive as she attempted to follow appellees’ employee’s directions to the chair. In fact, there is no evidence in the record that appellant was not exercising proper care or that she was being careless.

As to the issue of negligence of an employee, there is evidence to justify appellant’s expectation that the chair was safely in a locked and immobile position because it was the business’s standard practice to keep the chair securely locked. Appellees conceded, “It is common practice [at the Suburban Barber & Styling Shop] for the beauty operator/barber to check to ensure the chair is in locked position before a customer attempts to sit down.” Appellees also admitted, “The chair is always locked and stationary unless movement is desired and caused. A lever on the right-hand side of the chair must be manually pushed down and the chair pushed into motion.” Appellees also claimed that prior to appellant’s fall, their employee had “checked the chair to make sure it was locked.” Thus, from the record, there is evidence from which a jury could conclude Pique’s reliance on appellees’ business practice of locking the chair was reasonable.

It is well settled that questions of negligence, diligence, contributory negligence, proximate cause, and the exercise of ordinary care for one’s protection ordinarily are to be decided by a jury, and a court should not decide them except in plain and indisputable cases. Begin v. Ga. Championship Wrestling, 172 Ga. App. 293, 295 (322 SE2d 737). In Begin at 295, we noted that neither the presence nor absence of negligence should be summarily adjudicated, but should be resolved by the trier of facts unless only one conclusion is permissible. See also Ga. Power Co. v. Knighton, 169 Ga. App. 416 (312 SE2d 872); Pound v. Augusta National, 158 Ga. App. 166 (279 SE2d 342); Summers v. Milcon Corp., 134 Ga. App. 182, 183 (1) (213 SE2d 515).

Decided August 16, 1995.

Peters, Townsend, Wilson & Roberts, Allen F. Townsend, Ralph R. Carlisle, for appellant.

As to the issue of Pique’s alleged equal knowledge of the propensity of barber-style chairs to rotate, such a conclusion is not pertinent if the jury concludes the chair was not defective or left in a defective condition, and that Pique reasonably relied on appellees’ customary practice of locking the chair. As Pique stated in her affidavit, “I had no way of knowing the chair was in an unlocked position.” Thus, the issues are whether it was appellees’ practice to maintain the chair in a locked position and whether appellant should have anticipated that the chair might not be securely locked. Questions of negligence and proximate cause are peculiarly questions for the jury except in clear, plain, palpable and undisputed cases. Lozynsky v. Hutchinson, 159 Ga. App. 715 (285 SE2d 70); Lockhart v. Walker, 124 Ga. App. 241 (183 SE2d 503).

Consequently, whether Pique failed to exercise due care when she tried to seat herself, whether Pique’s conduct was unreasonable when she apparently expected the chair to be in a locked position, whether the new employee was negligent in failing to secure properly the chair with the locking lever or whether appellees had superior knowledge of a dangerous condition on their premises, and whether there was a hidden risk that was unknown to appellant, are all questions that preclude the granting of summary judgment. The evidence in the record does not demand a finding as a matter of law that no actionable negligence appears. Russell v. Goza, 143 Ga. App. 455, 456 (238 SE2d 583). When, as in the instant case, issues of negligence, diligence, and contributory negligence are involved, it is necessary that such issues be resolved by a jury rather than by summary adjudication. Ga. Power Co. v. Knighton, supra; North v. Toco Hills, 160 Ga. App. 116, 119 (286 SE2d 346); Yeager v. Jacobs, 111 Ga. App. 358 (1) (141 SE2d 837). Because there are material issues of fact remaining to be resolved, summary judgment must be reversed.

Judgment reversed.

Johnson and Smith, JJ., concur.

Bach & Hulsey, Robert J. Hulsey, for appellees.


author: McMurray, Presiding Judge.

text:
    A95A0966.
    CRUTCHFIELD v. THE STATE.
    (461 SE2d 555)
   McMurray, Presiding Judge.

Defendant was charged in an indictment with possession of cocaine with intent to distribute and also with possession of a firearm by a convicted felon. The evidence adduced at his jury trial showed that defendant was arrested at his home during the execution of a search warrant, issued after defendant sold crack cocaine to an undercover officer. Therein, police found a small plastic bottle containing 3.8 grams of crack cocaine stowed in a roll of toilet paper, “[a] foot maybe ...” from where defendant was standing. After being cautioned of his rights, defendant was asked if he had “any other illicit substances on the premises. . . .” He replied, “No, that’s all right there.” A marked $20 bill used to buy cocaine from defendant also was found “mixed in with some other currency inside [defendant’s] wallet.”

An order of nolle prosequi was entered on the weapon charge and the jury found defendant guilty of possession of crack cocaine with intent to distribute. This appeal followed the denial of his motion for new trial. Held:

1. In his 20th and 21st enumerations, defendant challenges the constitutionality of his mandatory life sentence imposed under OCGA § 16-13-30 (d). The argument that this Code section violates his rights as protected by due process and equal protection is without merit. Cantrell v. State, 217 Ga. App. 641, 642 (2) (459 SE2d 564). Defendant also renews the argument made in his amended motion for new trial, i.e., that “the mandatory life sentence provisions of [OCGA § 16-13-30 (d)] violate the proportionality and rationality requirements of the Eighth Amendment to the United States Constitution and the Constitution of Georgia. ...” The transfer of this appeal by the Supreme Court of Georgia to the Court of Appeals of Georgia is tantamount to a ruling that the mandatory life sentence for recidivist drug sellers is not excessive or disproportionate within the meaning of the Eighth Amendment to the United States Constitution or Art. I, Sec. I, Par. XVII of the Georgia Constitution of 1983. See Ryals v. State, 215 Ga. App. 51, 52 (1) (449 SE2d 865). Consequently, defendant’s 21st enumeration also is without merit.

2. The trial court did not err in admitting into evidence the marked $20 discovered in defendant’s wallet at the time of his arrest, even though defendant’s character may have incidentally been placed in issue. Hutson v. State, 216 Ga. App. 100, 101 (5) (453 SE2d 130). Evidence of defendant’s prior convictions for the sale of cocaine was properly admitted to corroborate proof of his intent to distribute as alleged in the indictment. Cole v. State, 216 Ga. App. 68, 70 (1) (453 SE2d 495); Evans v. State, 209 Ga. App. 606, 607 (2) (434 SE2d 148). The evidence is sufficient to authorize the jury’s verdict that defendant is guilty, beyond a reasonable doubt, of possessing cocaine with the intent to distribute as alleged in Count 1 of the indictment. Whitfield v. State, 217 Ga. App. 402, 404 (3) (457 SE2d 682); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

3. In his sixth, seventh,' and eighth enumerations, defendant contends the trial court erred in ruling that defense counsel’s peremptory challenges were not racially neutral. We agree.

The transcript of voir dire shows that the State’s Attorney, invoking State v. Mayweather, 262 Ga. 727 (425 SE2d 659), objected after defense counsel used all six peremptory challenges to strike white venire from the petit jury. In response to defense counsel’s explanations, the trial court reseated as jurors three venire struck by the defense after determining that the reasons given were not race neutral, under the following circumstances: “[DEFENSE COUNSEL]: [The first challenged white female is] a nurse and I’m afraid that because this is a drug case, the fact that she is a nurse she works with drugs, et cetera and knows what they do to people in the hospital and we did not want her to serve on the jury. [THE COURT]: I don’t recall that being established on voir dire. [DEFENSE COUNSEL]: That she is a nurse? [THE COURT]: No, that she would know what drugs do to you. [DEFENSE COUNSEL]: Well, no, but, I mean, we are assuming I think we can extrapolate from what we are told. She is an R.N. and works for Newton General Hospital. [THE COURT]: Do you want to be heard on that? [STATE’S ATTORNEY]: Your Honor, we don’t think that’s a race neutral reason. If she knew that, but if she is just guessing or extrapolating from that, we would object. [THE COURT]: I agree. [This challenged juror] will go back on the panel — will go on the jury.”

The second and third venire struck by the defense were reseated after the following transpired: “[DEFENSE COUNSEL]: I was aided by Mr. Nolan in my jury selection and he knows [a particular venireman] personally and feels that she is very pro law enforcement and would not be sensitive to any criminal defendant of any race and that’s why she was struck. [THE COURT]: Do you want to be heard? [STATE’S ATTORNEY]: Your Honor, that’s an opinion as to her disposition. It’s not a fact of her background or experience or anything we know of. [THE COURT]: I agree. It’s not race neutral. [This challenged juror] will go back on the jury. . . . Defendant’s strike four was ... a white female. State your race neutral reason. [DEFENSE COUNSEL]: We don’t have anything in particular about [this one], Your Honor. [THE COURT]: Do you want to be heard? [STATE’S ATTORNEY]: We object to her being struck. [THE COURT]: [This challenged juror] goes on.”

Decided August 17, 1995

Brenda H. Trammell, for appellant.

“[0]nce the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step 1), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If a race-neutral explanation is tendered, the trial court must then decide (step 3) whether the opponent of the strike has proved purposeful racial discrimination. Hernandez v. New York, 500 U. S. 352, 358-359 (1991) (plurality opinion); [cit.]; [cit.] The second step of this process does not demand an explanation that is persuasive, or even plausible. ‘At this (second) step of the inquiry, the [sole] issue is the facial validity of the [proponent’s] explanation. Unless a discriminatory intent is inherent in the [proponent’s] explanation, the reason offered will be deemed race neutral. [Cit.]” Purkett v. Elem, _ U. S. _ (115 SC 1769, 131 LE2d 834). See also Staples v. State, 209 Ga. App. 802 (1), 803 (434 SE2d 757). “As we scrutinize the sufficiency of the reason offered by the attorney and the context in which the strike occurred, we are also mindful that the explanation need not rise to the level justifying exercise of a challenge for cause, but it must be neutral, related to the case to be tried, and a clear and reasonably specific explanation of the attorney’s legitimate reasons for exercising the challenges.” (Citation and punctuation omitted.) Evans v. State, 217 Ga. App. 589, 590 (1) (458 SE2d 665). Accordingly, “a peremptory strike will not be found to be impermissible simply because it was exercised from ‘mistake, or from ignorance, or from idiosyncrasy.’ Gamble v. State, 257 Ga. 325 (2), 326 (357 SE2d 792). In the case sub judice, although [defense counsel’s stated] concern [s] over . . . white female [venire] ‘may have been the result of [defense counsel’s] “mistake,” “ignorance,” or “idiosyncrasy,” [these stated concerns were] certainly racially-neutral.’ Lewis v. State, 264 Ga. 101, 103 (440 SE2d 664).” Ellerbee v. State, 215 Ga. App. 102, 106 (9), 107 (449 SE2d 874). The trial court erred in concluding otherwise and a new trial is demanded. Evans v. State, 217 Ga. App. 589, 590 (1), supra. See also Covin v. State, 215 Ga. App. 3, 6 (449 SE2d 550).

4. The remaining enumerations have been considered and are found to be without merit or else to present circumstances unlikely to recur upon any retrial.

Judgment reversed.

Andrews and Blackburn, JJ., concur.

Fredric D. Bright, District Attorney, Wilson B. Mitcham, Jr., Paul L. Groth, Assistant District Attorneys, for appellee.


text:
    A95A1099.
    HOFFMAN v. DEPARTMENT OF CORRECTIONS et al.
    (460 SE2d 882)
   McMurray, Presiding Judge.

This is an action for damages pursuant to 42 USC § 1983 and state tort law, brought by a former inmate of the State Women’s Prison at Hardwick, plaintiff Hoffman, who alleges that while an inmate she was exploited by guards for purposes of sexual gratification. The alleged incidents occurred prior to the effective date of the Georgia Tort Claims Act (OCGA § 50-21-20 et seq.). One of the defendants in the case is the Georgia Department of Corrections. The theories underlying the claims against the Department of Corrections are not limited to those based on respondeat superior but include allegations that this defendant was a joint tortfeasor along with several of its employees including guards and officials at the Hardwick prison. The complaint alleges that the Department of Corrections knowingly permitted and condoned a pervasive practice of abuse, including sexual misconduct, directed towards female inmates, and that this policy facilitated the specific acts of abuse which plaintiff suffered. Additional defendants include a guard and a deputy warden from the prison, and a former commissioner of the Department of Corrections. Two of these additional defendants reside in Baldwin County.

The action was originally filed in the Superior Court of Fulton County but then transferred on defendants’ motions challenging venue there, to the Superior Court of Baldwin County. Plaintiff Hoffman then requested and received permission to file this interlocutory appeal from the transfer order. Held:

Apparently there is no specific statute determining venue for an action against the Department of Corrections predicated upon an incident prior to the effective date (January 1, 1991) of the Georgia Tort Claims Act. Plaintiff maintains that the Department of Corrections resides in Fulton County so as to render the original venue proper under the Constitution of Georgia, Article VI, Section II, Paragraph IV, which provides venue in actions against joint tortfeasors. A state agency may be sued as a joint tortfeasor. Gault v. Nat. Union Fire Ins. Co. of Pittsburgh, 208 Ga. App. 134, 137-138 (4) (430 SE2d 63). The defendants maintain that the concept of residence is not applicable to a state agency.

Under the argument advanced by defendants, we would simply disregard the presence of the Department of Corrections in determining venue. While this proposal might produce a simple resolution in this appeal, the proposal would not fare as well under different circumstances. The obvious question being where then would venue lie when the Department of Corrections is the sole defendant so that there are no joint tortfeasors whose residence could provide the answer to the venue issue. See Constitution of Georgia, Article VI, Section II, Paragraph VI.

Decided August 17, 1995

The Ford Law Firm, James L. Ford, Christopher G. Moorman, for appellant.

Michael J. Bowers, Attorney General, Daryl A. Robinson, Senior Assistant Attorney General, Neal B. Childers, Assistant Attorney General, Saveli & Williams, Elmer L. Nash, Smith & Associates, Kenneth A. David, for appellees.

In our view, the constitutional venue provisions (Constitution of Georgia, Article VI, Section II) must be viewed as comprehensive, at least with regard to actions which do not involve non-residents, and applied to actions against the State along with its agencies and departments. All of the arguments that the concept of residence is inapplicable to the State and its agencies are equally applicable to corporations, yet statutory provision has been made for determining the residence of a corporation for purposes of determining venue. OCGA § 14-2-510. Similar provision has been made by statute for a number of State agencies and for purposes of certain types of claims as in the Georgia Tort Claims Act. The difference in the case sub judice is the absence of any such statutory provision. In the absence of statutory direction, “residence” under the constitutional provisions must be determined based upon the general meaning of the term. The Department of Corrections as a branch of State government is present throughout the State of Georgia. Once a determination of venue based on residence of the Department of Corrections is undertaken, it can hardly be denied that Fulton County, the site of the State Capitol and seat of government as well as location of the principal offices of the Department of Corrections, is an appropriate venue. State Highway Dept. v. Parker, 75 Ga. App. 237, 244 (43 SE2d 172). The Superior Court of Baldwin County is directed to return this case to the Superior Court of Fulton County from which it was transferred.

Judgment vacated and case remanded with direction.

Andrews and Blackburn, JJ., concur.


author: Beasley, Chief Judge.

text:
    A95A1240.
    McCLURE v. THE STATE.
    (460 SE2d 884)
   Beasley, Chief Judge.

McClure pleaded guilty to two counts each of DUI, OCGA § 40-6-391, and driving with a suspended license, OCGA § 40-5-121, and one count each of driving without proof of insurance, OCGA § 40-6-10; improper lane usage, OCGA § 40-6-123; unlawful use of license, OCGA § 40-5-125; giving a false name to a law enforcement officer, OCGA § 16-10-25; impeding traffic, OCGA § 40-6-184; and open container, a county ordinance violation. The latter is also prohibited by state law, OCGA § 40-6-253, which was not charged.

On each DUI, which occurred less than two weeks apart, she received a twelve-month consecutive sentence, a $1,000 fine, and a $25 assessment for court costs for publishing her photo pursuant to OCGA § 40-6-391 (j) because she was convicted of three DUIs within five years. The court imposed concurrent 12-month sentences on the remaining charges and the required $200 fine on the driving without proof of insurance count. OCGA § 40-6-10.

McClure’s sole enumeration of error is that the trial court abused its discretion in that her sentence violates the Eighth Amendment’s guarantee against cruel and unusual punishment because it is excessive and disproportionate to the offenses charged. She cites but does not separately argue a violation of the state constitution, an independent ground. Thus we will not consider it, as it was not properly pursued. Merriman v. State, 201 Ga. App. 817, 818 (1) (412 SE2d 598) (1991).

The Eighth Amendment protects against cruel and unusual punishment, a concept which prohibits, among other things, arbitrary and disproportionate sentences. Lambeth v. State, 257 Ga. 15, 16 (354 SE2d 144) (1987). Unless a sentence “is so overly severe or excessive in proportion to the offense as to shock the conscience,” a legislatively authorized punishment does not ordinarily exceed the constitutional bound. Gordon v. State, 257 Ga. 439, 440 (360 SE2d 253) (1987). It could, if the court abused its discretion in imposing a sentence which is excessive and disproportionate in a specific case, which is what appellant claims. She does not contend that the sentence parameters fixed by the legislature are themselves unconstitutional.

The legislature provided for a maximum sentence of 12 months imprisonment, a fine of $1,000, and not less than 40 hours of community service on each DUI count when it is the first such offense, with a higher maximum for several and subsequent offenses. OCGA § 40-6-391 (c). For the misdemeanor counts, it authorized a term of imprisonment not to exceed 12 months, a fine not to exceed $1,000, or both. OCGA §§ 17-10-3; 40-6-10 (a) (1); 40-6-391 (c) (3). The county ordinance is not in the record, so we cannot review that sentence. See Williamson v. City of Tallapoosa, 238 Ga. 522, 525 (233 SE2d 777) (1977). Consecutive sentences are permitted where separate and distinct crimes are charged. OCGA § 17-10-10; Hart v. State, 137 Ga. App. 644 (3) (224 SE2d 755) (1976). The sentences McClure received were well within what is legislatively authorized and do not shock the conscience, particularly considering appellant’s record and repeated disregard of the law and the safety of others.

Decided August 17, 1995.

Pandora E. Terry, for appellant.

Keith C. Martin, Solicitor, Michael P. Baird, Assistant Solicitor, for appellee.

McClure’s argument that the court committed error by failing to sentence her to a probationary period in which to pay her fine is without merit. OCGA § 40-6-391 (g) permits trial courts, but does not require them, to allow a defendant to pay a fine in installments in order to avoid economic hardship.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.

       McClure was unrepresented when she entered her plea. The court subsequently appointed counsel, who filed motions to modify the sentence and withdraw the plea. At a hearing on the motion to withdraw the plea, McClure informed her attorney that she wished to withdraw that motion, which was then dismissed. McClure does not challenge her lack of representation during the plea.


text:
    A95A1242.
    PINNACLE CONSTRUCTION COMPANY, INC. et al. v. OSBORNE et al.
    (460 SE2d 880)
   Birdsong, Presiding Judge.

Elbert and Deborah Osborne sued Pinnacle Construction Company for defects in a new house, alleging breach of contract, breach of warranty, fraud and unfair and deceptive trade practices. Pinnacle moved to compel arbitration. In denying this motion, the trial court held that Pinnacle “does not seek to compel arbitration under the terms of the HBW warranty but rather under . . . the . . . contract for purchase and sale of real estate,” and that as the sales contract was not initialed by the parties, under OCGA § 9-9-2 (c) (8), the Arbitration Act does not apply to compel arbitration. We granted an interlocutory appeal.

Pinnacle contends this is a dispute involving “construction contracts [or] contracts of warranty on construction” which under OCGA § 9-9-2 (b) are compelled to be arbitrated, and is not a dispute under a “sales agreement or loan agreement for the purchase or financing of residential real estate,” which under OCGA § 9-9-2 (c) (8) may not be compelled to be arbitrated “unless the clause agreeing to arbitrate is initialed by all signatories at the time of the execution of the agreement.” Held:

1. Appellees’ motion to dismiss this appeal is denied. We note that appellees filed no objection or response to Pinnacle’s application for interlocutory appeal.

2. This suit involves claims based on a sales agreement for residential real estate which included a provision that the seller would construct a certain house on the property in accordance with plans and specifications which meet local building codes.

In providing that “[a]ny sales agreement or loan agreement for the purchase or financing of residential real estate” is exempt from application of the Arbitration Act (OCGA § 9-9-2 (c) (8)), the legislature is deemed to know that in modern commerce and contract term usage, new houses are sold by sales agreements containing provisions for the construction of a new house. See Holmes v. Worthey, 159 Ga. App. 262, 265 (282 SE2d 919), aff’d in Worthey v. Holmes, 249 Ga. 104 (287 SE2d 9). Stipulations and provisions for construction of a house in a sales contract “are clearly not a mere agreement to convey.” Holmes, supra at 266. Sales agreements for new houses impose obligations on the vendor other than those relating to title or possession. Id. at 267. In affirming our decision in Holmes, the Supreme Court held in Worthey, supra at 105, that the “ ‘build’ provisions of build-sale contracts are not performed by delivery and acceptance of the warranty deed.” When a sales agreement involves the purchase of a house to be constructed by the seller, it includes the promise to build the house in accordance with specifications named in the sales contract, and a suit for defects in that house may be maintained under that sales contract. Id. This was well-established law when the legislature enacted the Arbitration Act.

3. The Arbitration Act is in derogation of common law and must be strictly construed and not extended beyond its plain terms. Under common law, an agreement between parties to settle any dispute by arbitration is against public policy and is void as an effort to oust the courts of jurisdiction. See Savannah Transit Auth. v. Ledford, 179 Ga. App. 238, 239 (345 SE2d 915). The legislature included sales agreements for “residential real estate” among those which under OCGA § 9-9-2 (c) (8) must be initialed before the parties can compel arbitration, and in so doing, it did not distinguish sales agreements for the sale of new houses (which often include provisions to build). Therefore, we are not authorized to impose such a distinction. Further, it would be irrational to infer that the legislature intended to exclude sales contracts for new houses from this statutory requirement, because the purpose of the requirement is to ensure that purchasers of residential real estate are not compelled to give up their common law right of access to the courts unless they specifically acknowledge the intent to do so by initialling the arbitration clause in the sales contract. No reason exists to exclude buyers of new houses from this exception.

Contrary to Pinnacle’s assertion, Goodrich v. Southland Homes Corp., 214 Ga. App. 790, 791 (449 SE2d 154) does not hold that the exception at OCGA § 9-9-2 (c) (8) applies only to disputes over title or conveyance and not to construction disputes.

4. We note that the arbitration clause in this sales contract provides: “Warranty provisions of the home constructed under this contract are provided under an insured home builder warranty contract and both seller and buyer agree to abide by these provisions.” The sales contract thus contains the seller’s agreement to abide by the warranty, and its failure to do so may be addressed under the sales contract. This includes the failure to obtain an “insured” homeowners warranty as promised in the sales agreement. The arbitration clause in this sales agreement further provides that “any controversy or claim arising out of or relating to this contract, or breach thereof, shall be settled by arbitration.” (Emphasis supplied.) This would include any claim under the warranty. Recourse to the warranty provisions in the separate warranty would therefore be maintained under the sales agreement, but since the arbitration clause in the sales agreement was not initialed, arbitration for any such dispute may not be compelled.

5. Nevertheless, Pinnacle contends arbitration may be compelled under the separate warranty. However, the warranty does not compel arbitration. It merely permits the buyers to seek arbitration.

We further note that, as stated in Division 4, since the arbitration provision in the sales agreement requires buyer and seller to abide by the warranty provisions, the failure to abide by the warranty could be addressed under the sales contract. If the parties had initialed that clause in the sales contract (OCGA § 9-9-2 (c) (8)), the seller might now be contending that any claim under the warranty could be compelled to arbitration despite the provision in the warranty itself that the buyers “may” resort to arbitration. In such way, the seller might unfairly attempt to force arbitration without complying with the requirement to initial the arbitration clause in the residential real estate sales contract. As to the legal effect of this, we express no opinion.

Because the parties did not initial the arbitration clause in the sales contract, the trial court did not err in refusing to compel arbitration in this case.

Judgment affirmed.

Johnson and Smith, JJ., concur.

Decided August 17, 1995.

Zachary & Segraves, William E. Zachary, Jr., for appellants.

Johnson & Freeman, Horace J. Johnson, Jr., for appellees.


text:
    A95A1410.
    LEONARD v. THE STATE.
    (461 SE2d 309)
   Blackburn, Judge.

Ronald Leonard, Jr., appeals his conviction of 11 counts of armed robbery asserting several enumerations of error.

1. In his first enumeration of error, Leonard contends the trial court erred in denying his motion for mistrial. During the trial, Leonard’s counsel moved for a mistrial when one of the State’s witnesses testified as to statements made by Leonard while in police custody. The witness’s testimony contained more detail than had been provided to Leonard’s counsel prior to trial. See former OCGA § 17-7-210. The trial court denied Leonard’s motion for mistrial and instructed the jury to disregard the witness’s testimony regarding the defendant’s statements.

“The granting or refusing of a motion for mistrial is necessarily a matter largely within the discretion of the trial judge, and unless it is apparent that a mistrial is essential to the preservation of the right to a fair trial, the exercise of the judge’s discretion will not be interfered with.” (Citation and punctuation omitted.) Harper v. State, 213 Ga. App. 444, 449 (445 SE2d 303) (1994). In McKenzie v. State, 187 Ga. App. 840 (11) (371 SE2d 869) (1988), a witness testified as to statements made by the defendant while in custody which had not been provided to defense counsel prior to trial. Therein, we held that the denial of a mistrial was proper upon the court’s instruction to the jury to disregard the offending portion of the witness’s testimony. Id. at 848. Following McKenzie, we find that the trial court did not abuse its discretion in denying Leonard’s motion for mistrial.

2. In his second enumeration of error, Leonard contends there was insufficient evidence to convict him of Count 2 of the indictment which charged him with the armed robbery of a Circle K store on May 9, 1992. Edith Allen was working at the Circle K in the late evening hours of May 9, 1992. At trial, she testified regarding her identification of Leonard from a photographic line-up as the perpetrator of the armed robbery. On cross-examination, Allen admitted that the only picture in the photographic array with medium skin tone was Leonard’s picture.

Direct evidence of Leonard’s guilt was presented in the form of testimony by an eyewitness who positively identified Leonard as the perpetrator. Leonard did not object to the introduction of the photographic identification evidence; he objects to the sufficiency of the evidence. Viewed in the light most favorable to support the verdict, this evidence is sufficient for a rational trier of fact to conclude beyond a reasonable doubt that appellant committed the offense charged. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See also Hatcher v. State, 175 Ga. App. 768 (334 SE2d 709) (1985).

3. Leonard contends insufficient evidence was presented to convict him of Counts 10 and 11 of the indictment. In Count 10, Leonard was charged with the armed robbery of a Circle K store on June 4, 1992; Count 11 charged Leonard with the armed robbery of the same Circle K store the following day.

Detective Martin of the Gwinnett County Police Department testified that while in custody, Leonard admitted to robbing the Circle K after midnight on June 6, 1992. Yousuf Abdulwahid, the Circle K store clerk, testified that the same person robbed him both times. Furthermore, Abdulwahid selected Leonard’s photograph as the perpetrator from the photographic line-up. Leonard correctly notes that Abdulwahid’s testimony regarding the perpetrator’s height was inconsistent with Leonard’s height; however, on appeal, we must construe all evidence in the light most favorable to the verdict. Viewed in such a light, the direct evidence of Leonard’s guilt, testimony by an eyewitness who positively identified Leonard as the perpetrator, is sufficient for a rational trier of fact to conclude beyond a reasonable doubt that appellant committed the offense charged. See Jackson v. Virginia, supra. See also Hatcher v. State, supra.

4. Leonard contends that pursuant to the merger doctrine, the armed robberies charged in Counts 4 and 5 of the indictment merged as a matter of law. In Count 4, Leonard was charged with the armed robbery of a QuikTrip store on May 12, 1992; Count 5 charged Leonard with the contemporaneous armed robbery of the QuikTrip store’s clerk, Lon David Fancher.

In Deans v. State, 212 Ga. App. 571, 572 (443 SE2d 6) (1994), we held that “ ‘[rjobbery is a crime against possession, and is not affected by concepts of ownership. Similarly, one may only rob a person, and not a corporate entity.’ ” Therein we found that the trial court erred in imposing two sentences for the robbery of the Chick-fil-A and the robbery of its manager. Id. Following Deans, we find that the trial court erred in failing to hold that Counts 4 and 5 merged as a matter of law. Upon remand, the trial court is instructed to strike the sentence imposed on the fifth count. Id.

Decided August 17, 1995.

Ronnie K. Batchelor, for appellant.

Daniel J. Porter, District Attorney, David K. Keeton, Assistant District Attorney, for appellee.

5. In his last enumeration of error, Leonard alleges that the prosecutor became a witness for the State, and he contends the trial court erred in denying his motion for mistrial. Our review of the record indicates that although the prosecutor’s questions were somewhat in-artful, he did not “become a witness.” Furthermore, the trial court instructed the jury to disregard the prosecutor’s questions and the witness’s responses. The trial court did not abuse its discretion in denying Leonard’s motion for a mistrial. See Harper, supra.

Judgment affirmed in part and reversed in part with direction.

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

       OCGA § 17-7-210 was repealed effective January 1, 1995, by Ga. L. 1994, p. 1895, § 1. The repeal does not affect this case.


text:
    A95A1650.
    THOMAS v. THE STATE.
    (461 SE2d 305)
   Birdsong, Presiding Judge.

Johnny Thomas, Jr., appeals his conviction of possession of a firearm by a convicted felon and theft by receiving. He enumerates that the trial court erred in denying his motion for directed verdict of acquittal, that the verdict is contrary to the evidence and without evidence to support it, and that the trial court erred in denying his request for a limiting instruction concerning the evidence of a prior conviction in its charge to the jury. Held:

1. As a general rule, “a motion for directed verdict in a criminal trial should only be granted where there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law. [Cit.]” Taylor v. State, 252 Ga. 125 (1) (312 SE2d 311). However, the test established in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) “is the proper test for us to use when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new trial based upon alleged insufficiency of the evidence.” Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436).

The owner of the stolen pistol testified that the last time he saw the weapon it was in his motor vehicle. A man named Michael Kendrick rode in the owner’s vehicle when they went to obtain more plumbing parts. Kendrick departed the vehicle stating he was going to another store and return; he never returned to the vehicle and the owner has not seen him since that time. A few days later the owner discovered his gun was missing and called the police. The stolen weapon was a .38 special; when appellant was arrested, he had five .38 caliber cartridges, one of a slightly different brass or copper-tone color, in his possession. These cartridges are similar to five of the six cartridges that were in the weapon when it was stolen.

Two days following appellant’s arrest for parole violation, his teenage brother found the stolen weapon under a chest of drawers in the home of appellant’s father and stepmother; appellant’s stepmother called the police. At trial, appellant’s brother denied either that he had told the police that Michael Kendrick gave the gun to appellant or that he had made any statement to Investigator Heaton or the police. The brother then was cross-examined over the contents of a statement which was drafted and signed by the investigator in order to reduce to writing the oral statement made to the investigator by the brother. This statement ultimately was admitted in evidence without objection; the admission of this particular statement is not enumerated as an appellate error.

The trial court correctly charged inter alia that the jury was authorized to consider prior inconsistent statements not only for purposes of impeachment but also as substantive evidence in the case. “[A] prior inconsistent statement of a witness who takes the stand and is subject to cross-examination is admissible as substantive evidence, and is not limited in value only to impeachment purposes.” Gibbons v. State, 248 Ga. 858, 862 (286 SE2d 717).

During cross-examination, the brother claimed he did not tell the police Michael Kendrick gave the gun to appellant; however, he did imply he made the statement because his mother had told him to do so. The prior inconsistent statement, which the brother signed, asserted that he had observed appellant hide the gun under the chest of drawers on the night of appellant’s arrest and that appellant had obtained the gun from Michael Kendrick. Contrary to appellant’s contention, the portion of his brother’s statement relating that appellant had obtained the gun from Michael Kendrick does not establish on its face that such factual assertion was based upon hearsay to which no exception as to admissibility applies. Also admitted without objection, and without any request by appellant for a limiting instruction, were documents establishing appellant’s prior felony conviction of burglary of a school building. Thus, there was admissible substantive evidence of record that appellant was a convicted felon and that he had been in physical possession of a stolen weapon which he hid on the night of his arrest.

Additionally, the trial court charged the jury as to the permissible inference that can be drawn from the recent possession of stolen property. Although knowledge is an essential element of the offense of receiving stolen property, “proof of from whom a stolen article was received is not an essential element of the crime of receiving stolen property.” Abercrombie v. State, 145 Ga. App. 204, 205 (243 SE2d 567). “A defendant’s knowledge that goods are stolen can be established by both direct and circumstantial evidence. [Cit.] Although guilty knowledge is essential to a conviction of the accused, such knowledge can be inferred from circumstances, which would, in the opinion of the jury, lead a reasonable man to believe that the goods were stolen. [Cit.] And, in a theft by receiving stolen property, where the principal thief is unknown, there is no burden on the State to prove that the thief was not the defendant. [Cit.] Further, in this case, the trial court instructed the jury as to the inference of guilt that may be drawn from the recent, unexplained possession of stolen property, and that an unexplained possession of recently stolen property will not standing alone support an inference of guilty nor authorize a conviction of theft by receiving stolen property.” Daras v. State, 201 Ga. App. 512, 513 (1) (c) (411 SE2d 367). Although not a required element of proof, in this instance, there exists independent substantive evidence, albeit circumstantial, that appellant obtained the gun from Michael Kendrick. Kendrick had access to the weapon a relatively short period of time before it was discovered stolen, and he fled the owner’s vehicle by using a ruse that he was going to another store and then would return. Five cartridges were found in appellant’s pocket at the time of his arrest, which were similar to those in the gun at the time of its theft. There also exists independent substantive evidence that appellant hid the weapon shortly before his arrest. From this latter conduct alone, a jury could reasonably infer that appellant hid the weapon because of his consciousness of guilt, specifically that he was a convicted felon in possession of a stolen weapon. “This [variety of] independent evidence, together with the permissible inference, above discussed, was ample evidence of guilt for a rational jury to decide whether that evidence, circumstantial though it may be, was sufficient to warrant a conviction for theft by receiving stolen property as averred” and of possession of a firearm by a convicted felon. Id. at 514.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). To support the verdict, circumstantial evidence must only exclude reasonable hypotheses; it need not exclude every inference or hypothesis except that of the defendant’s guilt. Smith v. State, 257 Ga. 381, 382 (359 SE2d 662). Under this rule, the State is not required to remove every possibility of innocence of the crime charged. Ross v. State, 214 Ga. App. 697, 698 (448 SE2d 769). Viewing the evidence of this case in a light most favorable to the verdict, we conclude the jury rationally could have found that it excluded every reasonable hypothesis except that of the defendant’s guilt as to the offenses of which he was convicted; the jury was authorized by the evidence presented to exclude other possible hypotheses as unreasonable (id. at 699). Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offenses of which convicted. Jackson v. Virginia, supra.

2. Appellant contends the trial court erred in denying his request for an instruction limiting the purpose for which the jury could consider appellant’s prior burglary conviction to the issue of whether appellant was a convicted felon — an essential element of the charge of possession of a firearm as a convicted felon. There exists no duty for the trial court to give such a limiting instruction sua sponte; the duty to give this type of limiting instruction arises only where a request to charge has been made to the trial court. See generally Brown v. State, 263 Ga. 89, 91 (2) (428 SE2d 78); Head v. State, 262 Ga. 795, 798 (4) (426 SE2d 547); Davis v. State, 260 Ga. 338 (393 SE2d 260); Head v. State, 253 Ga. 429, 432 (3) (d) (322 SE2d 228).

The transcript reveals that the evidence of appellant’s prior felony conviction was admitted expressly without objection by appellant and without any simultaneous request for a limiting instruction. Appellant did not present any written request for a limiting instruction to the trial court. Following the court’s charge to the jury, the trial judge expressed his concerns as to whether a limiting instruction should be given regarding the evidence of appellant’s prior burglary conviction. Appellant’s counsel conceded that he had covered the subject in his closing argument but orally requested a limiting instruction. The trial court did not rule on this request but proceeded to examine other issues. During this colloquy appellant indicated he would reserve his objections to the charge given. The trial court then inquired whether the jury should be recalled for purposes of defining the term “firearm.” The court addressed counsel stating, “would either side like for me [to] call them back in,” to which counsel for appellant responded that he did not believe it was necessary to do so in this case. It is a general rule that “ ‘when evidence is admitted for one purpose, ... it is not error for the court to fail to instruct the jury to limit its consideration to the one purpose for which it is admissible, in the absence of a request to so instruct the jury. (Cits.)’ [Cit.] It must be a ‘proper written’ request. [Cits.]” Moore v. State, 202 Ga. App. 476, 480 (3) (414 SE2d 705). Appellant has failed to make any proper request in writing for a limiting instruction. However, he asserts that, as in Moore, supra, this case constitutes an exception to the general rule that a proper request for limiting instruction must be timely made in writing. We find Moore, supra, to be factually distinguishable from this case and therefore not controlling as precedent. Specifically in Moore, appellant had no opportunity to submit a prior written request due to lack of notice until the morning of trial; in the case at bar, Count 1 of the indictment averred that the burglary conviction was the felony conviction underlying the charge of possession of a firearm by a convicted felon. Accordingly, appellant was aware that the burglary conviction would be introduced in evidence before trial commenced and had ample opportunity to comply with the general rule. Secondly, in Moore, the trial court stated it would instruct the jury as to the evidentiary limitation but failed to do so, thereby lulling appellant into believing that a limiting instruction would be given without the necessity for a formal written request to instruct. Thirdly, in Moore, the error was exacerbated by a general charge that direct evidence includes the exhibits admitted in evidence and the only exhibit admitted was the prior conviction causing the jury to conclude that the conviction was direct evidence of guilt as to all issues; while a similar general charge was given in this case, there were several exhibits, including the stolen pistol and the seized cartridges, in evidence, thereby substantially reducing the risk that the jury would focus on the prior conviction as direct evidence of the offense of theft by receiving stolen property. Considering these factors in their totality, we find no adequate reason to depart in this case from the general rule requiring a prior proper written request for limiting instruction.

Additionally, appellant selected a trial strategy of not preparing in advance a written request to instruct, failing to request a limiting instruction at the time the evidence of prior conviction was admitted, failing to raise the issue after charges were given until after the trial court sua sponte questioned whether a limiting instruction should be given, and subsequently interrupting the trial judge and affirmatively asserting that recall of the jury was not necessary after the judge had also questioned whether the jury should be recalled to be given a definition of the term, “firearm.” The totality of appellant’s trial strategy aided in causing the trial court not to recall the jury for purposes of giving them a limiting instruction regarding the burglary conviction evidence. It is well established that “[o]ne cannot complain of trial procedure utilized by the trial court which his own trial tactics or conduct procured or aided in causing. [Cits.]” Williams v. State, 205 Ga. App. 445, 446 (2) (422 SE2d 309).

For each of the above reasons, we decline to find reversible error, under the circumstances attendant, in the trial court’s failure to give a limiting instruction based on an oral request to charge which was not made until after the trial court’s express inquiry following the conclusion of its charge to the jury.

Decided August 17, 1995.

Randolph E. Wynn, for appellant.

Edward D. Lukemire, District Attorney, for appellee.

Judgment affirmed.

Johnson and Smith, JJ., concur.


text:
    A95A1825.
    In re REDDING.
    (461 SE2d 558)
   McMurray, Presiding Judge.

Kenneth Charles Redding, proceeding pro se, filed a verified “PETITION TO CHANGE NAME” in the Superior Court of DeKalb County, Georgia, alleging that he was born in Georgia on April 9, 1955; that, for “Religious Reasons,” he desires to change his name from Kenneth Charles Redding to Faheem Shabazz Batuta; and that the petition is not submitted with the intention of defrauding another. In support of his pauper’s affidavit, Mr. Redding submitted the certification of an authorized officer of the DeKalb County Jail, the “institution where [Mr. Redding] is confined,” showing the average monthly balance in Mr. Redding’s account there to be $10. Mr. Red-ding subsequently filed a change of address, informing the Clerk of the DeKalb Superior Court that he “was transferred to Ware C. I. in Waycross, from DeKalb Jail on, 1-18-95.” On April 14, 1995, the DeKalb Superior Court entered an order denying Mr. Redding’s petition for name change, finding that Mr. Redding “has been convicted of numerous offenses including most recently burglary, aggravated assault, aggravated sodomy, rape, robbery and armed robbery in DeKalb Superior Court.” The superior court concluded that a legal change in Mr. Redding’s name at this time “might result in confusion, allow him to conceal his true identity and disassociate with his past criminal record.” This direct appeal followed. Held:

In related enumerations of error, Mr. Redding contends the superior court erred in denying his petition to change name, arguing that a name change for religious reasons is “guaranteed by the ‘Free Exercise’ clause of the First Amendment, Sherbert v. Verner, 374 U. S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963).”

“The action of the superior court in granting or refusing a proper application to change the name of a person is based solely on a sound legal discretion].]” Binford v. Reid, 83 Ga. App. 280 (63 SE2d 345). Title 19, Chapter 12 of the Code does not “authorize any person to change his name with a view to deprive another fraudulently of any right under the law.” OCGA § 19-12-4. We take judicial notice of the fact that Kenneth Charles Redding’s previous convictions include giving a false name to a law enforcement officer, in addition to crimes of violence. Redding v. State, 196 Ga. App. 751 (397 SE2d 34). In the case sub judice, the superior court did not abuse its discretion, for the evidence authorizes the conclusion that a change in Mr. Redding’s name at this time might result in confusion, allowing him to conceal his true identity and to disassociate himself with his criminal past. In re Parrott, 194 Ga. App. 856 (392 SE2d 48). Compare In re Mullinix, 152 Ga. App. 215 (262 SE2d 540). The fullest expression of Mr. Red-ding’s protected liberty interests in religious worship and freedom of expression, as those interests are implicated by this holding, will have to wait until his rehabilitation is more completely demonstrated. Until then, the denial of his petition for name change does not amount to an impermissible restriction of substantial rights. See, e.g., Elam v. Henderson, 472 F2d 582 (5th Cir. 1973), cert. denied, 414 U. S. 868 (94 SC 177, 38 LE2d 117).

Decided August 17, 1995.

Kenneth C. Redding, pro se.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


text:
    A95A1037.
    WADE v. THE STATE.
    (461 SE2d 314)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of violating the Georgia Controlled Substances Act by unlawfully selling marijuana. With a motion for new trial pending, defendant also moved for bond. After a hearing, the trial court denied this motion for bond, concluding that defendant “poses a significant risk of committing a felony if released on bond. . . .” This direct appeal is from the order denying defendant’s “Motion for Appeal Bond.” Held:

1. There is considerable doubt whether a direct appeal will lie from the interlocutory order denying bond during the pendency of a motion for new trial or an appeal. See Howard v. State, 194 Ga. App. 857 (392 SE2d 562). Compare Ferry v. State, 210 Ga. App. 321 (436 SE2d 59). The question of appellate jurisdiction was not squarely addressed in Birge v. State, 238 Ga. 88 (230 SE2d 895). In Birge, the Supreme Court of Georgia granted certiorari to consider the unpublished opinion of the Georgia Court of Appeals which had affirmed the trial court’s denial of bail pending appeal from a felony conviction. In that case, the Supreme Court adopted as the Georgia rule the ABA Standards, Criminal Appeals, § 2.5 (a) and (b) (1974). ABA Standards, Criminal Appeals, § 2.5 (a) provides in part: “The decision of the trial court should be subject to review by an appellate judge or court on the initiative of either the prosecution or the defense.” Birge v. State, 238 Ga. 88, 89, supra. This does not mandate that a direct appeal will lie from an order denying bond but is entirely consistent with the application requirements for interlocutory appeal. Compare Patterson v. State, 248 Ga. 875, 877 (287 SE2d 7), where the Supreme Court of Georgia held that an “order denying a plea of double jeopardy is [directly] appealable under . . . Code Ann. § 6-701 [now OCGA § 5-6-34], where the plea was filed sufficiently in advance of trial so as not to constitute a delaying device.” Nevertheless, the present practice is that a direct appeal from an order denying appeal bond should be considered on the merits. See Prayor v. State, 214 Ga. App. 132 (447 SE2d 155).

2. In his sole enumeration of error, defendant contends the trial court abused its discretion in denying an appeal bond, arguing that the evidence does not support the determination that defendant would again sell marijuana if released on bond.

“[T]here is no constitutional right to bond pending appeal, [cits.].” Browning v. State, 254 Ga. 478, 479 (2) (330 SE2d 879). In the case sub judice, since defendant’s felony drug conviction was not for trafficking in marijuana, appeal bond may be granted but the question whether to grant bond after conviction is committed to the sound “discretion of the convicting court.” OCGA § 17-6-1 (g). An appellate court “will not control that discretion unless it has been flagrantly abused. (Cits.)’ Watts v. Grimes, 224 Ga. 227 (161 SE2d 286) (1974).” Birge v. State, 238 Ga. 88, 89, supra.

At the hearing, “the burden of seeking a stay of execution and a release on bond is upon the applicant.” Moore v. State, 151 Ga. App. 413, 414 (260 SE2d 350). “ ‘Release should not be granted unless the court finds that there is no substantial risk the appellant will not appear to answer the judgment following conclusion of the appellate proceedings and that the appellant is not likely to commit a serious crime, intimidate witnesses or otherwise interfere with the administration of justice, and that the appeal is not frivolous or taken for delay.’ ” Birge v. State, 238 Ga. 88, 90, supra. “The defendant’s conviction rebuts the prior presumption of innocence and justifies requiring the defendant to bear the burden of convincing the court to grant an appeal bond. See Vanderford v. State, 126 Ga. [67, 70 (54 SE 822)].” Ayala v. State, 262 Ga. 704, 706 (2), 707 (425 SE2d 282).

In the case sub judice, the trial court heard evidence of additional (unindicted) instances where defendant sold marijuana. When coupled with defendant’s lack of remorse and his belief that he had committed no wrong, this evidence was sufficient to support the determination of the trial court that defendant poses a serious risk of committing an additional offense if free on bond. Prayor v. State, 214 Ga. App. 132, 133, supra. Consequently, defendant has failed to establish that the trial court manifestly abused its discretion in denying his motion for bond. Cooper v. State, 178 Ga. App. 709, 716 (11) (345 SE2d 606).

Decided August 18, 1995.

Spruell & Dubuc, Billy L. Spruell, for appellant.

David McDade, District Attorney, Bradley R. Malkin, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


text:
    A95A1412.
    O’BRIEN FAMILY TRUST et al. v. GLEN FALLS INSURANCE COMPANY.
    (461 SE2d 311)
   Blackburn, Judge.

In 1979, Robin and Julia O’Brien purchased a personal comprehensive protection insurance policy (policy) from the Glen Falls Insurance Company (Glen Falls) through the Jones-Logan Insurance Agency (Jones-Logan). Glen Falls chose not to renew the policy, effective September 15, 1989, and, pursuant to Jones-Logan’s request, the O’Briens surrendered the policy to Jones-Logan upon being given notice of non-renewal at or about that time. In November 1993, the appellants, the Robert M. O’Brien Family Trust (Trust), Robin M. O’Brien, and Julia O’Brien commenced this action against original defendant Continental Insurance Company (Continental), to recover legal expenses which the O’Briens incurred in defending a 1988 lawsuit which arose out of the Trust’s sale of certain property in California. By consent of the parties, Glen Falls was later substituted for Continental. The trial court granted summary judgment for Glen Falls, and this appeal followed.

The Trust defended the underlying action, paying all expenses arising therefrom through November 1991; however, in December 1991, the O’Briens retained new California counsel and the services of an individual who acted in the capacity of a legal assistant. On November 18, 1992, the O’Briens gave Glen Falls written notice of the California action, requesting that Glen Falls defend the suit. Thereafter, without issuing a reservation of rights letter or entering into a non-waiver agreement, Glen Falls settled the suit and reimbursed the O’Briens in the amount of $8,227.50, legal fees which the O’Briens incurred from the date they first gave Glen Falls written notice until Glen Falls’ counsel was substituted for that employed by the O’Briens. In the complaint sub judice, the Trust and the O’Briens sought damages in the amount of $49,122.50, to pay for legal expenses incurred prior to notifying Glen Falls of the claim.

1. The O’Briens first contend that the trial court erred in granting Glen Falls’ motion for summary judgment in that Glen Falls failed to issue a reservation of rights letter or enter into a non-waiver agreement upon undertaking their defense, estopping it from denying them pre-tender defense costs.

“It has long been the rule in Georgia that a liability insurer who assumes the conduct of the defense to an action with knowledge of facts constituting noncoverage and without disclaiming liability and giving notice of its reservation of rights is thereafter estopped from denying coverage. Jones v. Ga. Cas. &c. Co., 89 Ga. App. 181, 185 (78 SE2d 861) (1953). The insurer can avoid estoppel by giving timely notice of its reservation of rights which fairly informs the insured of the insurer’s position. State Farm &c. Ins. Co. v. Anderson, 104 Ga. App. 815 (123 SE2d 191) (1961).” Preferred Risk Mut. Ins. Co. v. Southern Guaranty Ins. Co., 181 Ga. App. 688, 689 (353 SE2d 590) (1987). See also Daniel v. Safeway Ins. Co., 199 Ga. App. 833, 834 (406 SE2d 266) (1991). It is undisputed in the record before us that Glen Falls undertook the O’Briens’ defense in the instant case on November 18, 1992, upon receiving written notice of claim from the O’Briens.

While Glen Falls undertook the O’Briens’ defense without issuing a reservation of rights letter or securing a non-waiver agreement, it does not follow that Glen Falls should be estopped from denying coverage in excess of that which it was contractually obligated to provide. See Presidential Hotel v. Canal Ins. Co., 188 Ga. App. 609, 610 (373 SE2d 671) (1988) (“The duty of an insurer to defend its insured is determined by the contract of insurance. [Cit.]”). We therefore must look to the policy to determine if the O’Briens’ coverage may be deemed to include pre-tender legal expenses.

The policy pertinently required that the O’Briens give written notice of a claim under the policy as soon as possible. It required that they immediately send Glen Falls “every demand, notice, summons or other papers received” in any lawsuit filed against them. As to legal costs, the policy obligated Glen Falls to pay the expenses it incurred in providing the O’Briens a defense, any court costs charged to the O’Briens, any interest added to the judgment, and any reasonable expenses that the O’Briens incurred incident to Glen Falls’ request for assistance. However, the policy made no provision for the payment of pre-tender legal expenses. We cannot interpret the foregoing policy provisions for more than their plain meaning. Horace Mann Ins. Co. v. Drury, 213 Ga. App. 321, 322 (445 SE2d 272) (1994) (“Contracts of insurance, like other contracts, are to be construed according to their sense and meaning of the terms which the parties have used, and if they are clear and unambiguous, their terms are to be taken and understood in their plain, ordinary and popular sense.” (Citations and punctuation omitted.)). Therefore, we conclude that the policy did not obligate Glen Falls to pay pre-tender legal expenses incurred by the O’Briens. Such a construction would render contractual terms necessary to trigger Glen Falls’ performance under the policy meaningless. Accordingly, this enumeration of error is without merit.

2. The Trust and the O’Briens further enumerate that the trial court erred by granting Glen Falls’ motion for summary judgment in that Glen Falls admitted in judicio that the date the O’Briens made a formal claim under the policy was a material issue in dispute.

“It is well-established that a party to a trial may make admissions in judicio in their pleadings, motions, and briefs. Brownlow v. City of Calhoun, 198 Ga. App. 710, 711 (402 SE2d 788); Time Ins. Co. v. Lamar, 195 Ga. App. 452 (2) (393 SE2d 734); Summerlot v. Crain-Daly Volkswagen, 138 Ga. App. 839 (227 SE2d 463). When an admission is so made ‘it is a solemn admission in judicio. As such, it is binding upon the party and estops the party from denying the admission or introducing any evidence to controvert the admission, even if it is untrue.’ Green, Ga. Law of Evid. (3rd ed.), Admissions, § 233.” Bannister v. State, 202 Ga. App. 762, 766 (415 SE2d 912) (1992). However, “[a]dmissions in judicio apply only to facts in litigation.” Liberty Nat. Bank & Trust Co. v. Diamond, 231 Ga. 321, 323 (201 SE2d 400) (1973). They do not apply when the admission is merely in the nature of the pleader’s opinion as to fact or law. Green, supra, § 238.

By its response to the O’Briens’ motion for summary judgment which pre-dated its own motion, Glen Falls asserted that “[a] clear issue of fact exists as to when and how notice was given to the insurer and whether there was ever any notice prior to November 18, 1992, triggering any liability for expenses prior to that for legal expenses prior to that date.” As the foregoing constitutes no more than Glen Falls’ opinion as to the facts, we find that it was not an admission in judicio. See Clift & Goodrich, Inc. v. Mincey Mfg. Co., 41 Ga. App. 38, 39 (1) (152 SE 136) (1930) (rule that parties bound by their judicial admissions (OCGA § 24-3-30) applicable to admissions of fact not of opinion). Even were the contrary true, we would decline to disturb the trial court’s grant of summary judgment to Glen Falls, as the question of whether or when Glen Falls was notified of the O’Briens’ claim for legal expenses is not relevant to the question of whether such expenses were covered by the policy. While Glen Falls reimbursed the O’Briens for legal expenses they incurred after tender and before the substitution of counsel for Glen Falls, a gratuitously made payment is insufficient to alter the plain meaning of the policy. See Capes v. Bretz, 195 Ga. App. 467, 468 (393 SE2d 702) (1990).

Decided August 18, 1995.

Branch, Pike & Ganz, Burt DeRieux, Barry G. Roberts, Michael S. Welsh, for appellants.

Drew, Eckl & Farnham, James M. Poe, Mary H. Hines, for appellee.

Viewing the facts, including Glen Falls’ admission by responsive pleading, in the light most favorable to the non-moving party, we conclude that the grant of summary judgment for Glen Falls was proper. Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (405 SE2d 474) (1991).

3. The O’Briens last contend that the trial court’s grant of summary judgment for Glen Falls was error because jury questions exist as to whether Jones-Logan frustrated the O’Briens’ efforts to obtain a copy of the policy, preventing them from determining the applicable notice of claim procedures under the policy.

Pretermitting the question of alleged obstructionist tactics, the record reflects that the O’Briens had possession of the policy when they were sued in November 1988 and that they retained possession of the policy until surrendering it approximately a year later incident to Glen Falls’ decision not to renew the policy. “Parties to a contract are presumed to have read their provisions and to have understood the contents. One who can read, must read, for he is bound by his contracts.” (Citation omitted.) My Fair Lady of Ga. v. Harris, 185 Ga. App. 459, 460 (364 SE2d 580) (1987). This enumeration of error is also without merit.

Judgment affirmed.

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


text:
    A95A1237.
    WARD v. EMANUEL COUNTY BOARD OF HEALTH et al.
    (461 SE2d 559)
   Birdsong, Presiding Judge.

Eugene Ward, Jr. sued Emanuel County Board of Health, Dr. Mickey Crouch and Pam Nasworthey for the wrongful death of his parents, who were killed on April 1, 1989, by their son and plaintiff’s brother, Tommie Ward. Eugene Ward contended his parents’ deaths were caused by defendants’ negligence in releasing Tommie Ward from care at the Ogeechee Area Mental Health Retardation and Substance Abuse Center (“Ogeechee”).

Tommie Ward was an outpatient at Ogeechee, of which Dr. Crouch was the chief medical officer. Dr. Crouch also served as Ward’s attending physician. Ward had shown psychotic and schizophrenic behavior; he was often out of touch with reality and suffered from paranoid and delusional thinking. During his treatment at Ogeechee, Ward verbalized threats of violence against his family members. On one such occasion, Dr. Crouch initiated procedures to have Ward involuntarily confined. He was delivered to Georgia Regional Hospital in Augusta and held there for a period of time. Dr. Crouch last saw Ward on November 16, 1988; Ward complained then of talking to himself and not sleeping well, and he was referred to the Veteran’s Administration Hospital. As he was generally scheduled to monthly appointments at Ogeechee, Ward was seen by another doctor at Ogeechee on December 14, 1988.

On December 28, 1988, however, he was seen by Dr. McCracken at the VA Hospital in Dublin in Laurens County. He did not keep his next scheduled appointment at Ogeechee nor, according to the evidence cited to us, did he consult any physician at Ogeechee at any time thereafter. In January 1989 it was determined by appellees that Ward was no longer living in Emanuel County and that he was seeking mental health services from the VA in Dublin, and his file was closed at Ogeechee. At the VA Hospital in Dublin, Dr. McCracken last treated Ward on March 27, 1989. Five days later, he killed his parents.

On appeal of a defendants’ verdict, Eugene Ward contends the trial court erred in its jury charge and in other respects, and he chiefly contends he was entitled to a directed verdict and judgment n.o.v. because the evidence indisputably shows that appellee Crouch failed to exercise his statutorily mandated duty of examining Tommie Ward at the time of discharge to determine whether the discharge would be unsafe for him or others. Held:

Appellant contends OCGA § 37-3-21 (a) placed a duty on appellee Crouch to examine Tommie Ward prior to discharging him from Ogeechee. This is incorrect. OCGA § 37-3-21 (a) applies to inpatients. Tommie Ward was an outpatient.

A health care provider may be liable for the criminal acts of a patient only where the physician is able to exercise control over the freedom of the mental patient or has the authority to confine or restrain the patient against his will; and the physician must have known or reasonably should have known the patient was likely to cause bodily harm to others. Keppler v. Brunson, 205 Ga. App. 32, 33 (421 SE2d 306). The controlling fact in this case is that when he killed his parents in April 1989, Ward was by his own choice not being treated by the staff at Ogeechee, had not been to Ogeechee in the previous four months, was being treated by other physicians at another facility in another county, and evidently had been treated by those other physicians during those months. Appellees had no control at all over Ward’s freedom in April 1989 when he killed his parents. Appellant’s theory of liability is apparently based on the idea that when Ward failed to keep his appointment at Ogeechee in January 1989 and it was learned he had moved and was being treated at another facility in another county, the appellees should have followed him to this other place of treatment and exerted control over his freedom then and at all times thereafter to ensure that he did not at some point carry out a threat he had made to them during his treatment at Ogeechee. Appellant is unable to cite any law which imposes such a duty on outpatient caretakers of mental patients. Even if there were such a duty on the appellees, it is sheer speculation to suppose their discharge of Ward in January 1989 proximately caused him, in his impaired mental state, to commit these tragic acts four months later.

Decided August 22, 1995

Edwards & Youmas, Lonzy F. Edwards, for appellant.

Spivey, Carlton & Edenfield, J. Franklin Edenfield, Saveli & Williams, Elmer L. Nash, Vincent A. Toreno, for appellees.

Inasmuch as the evidence cited to us demands a verdict for the appellees (see OCGA § 9-11-50), the trial court did not err in denying Ward’s motion for directed verdict and judgment n.o.v.; and it becomes unnecessary to examine the other enumerations of error.

Judgment affirmed.

Johnson and Smith, JJ., concur.


text:
    A95A1604.
    In the Interest of B. G. W. III, a child.
    (461 SE2d 568)
   Birdsong, Presiding Judge.

B. G. W. Ill appeals his juvenile adjudication for the traffic offense of driving without a license. He was sentenced to pick up trash on four Saturday mornings. He contends the evidence was insufficient to sustain the allegations against him beyond a reasonable doubt and that the juvenile court erred by failing to advise him, before the hearing, of his right to counsel and his right against self-incrimination. Held:

1. On appeal the evidence must be viewed in the light most favorable to the decision below, the juvenile no longer enjoys the presumption of innocence, and the appellate court determines the sufficiency of the evidence, and neither weighs the evidence nor judges the credibility of the witnesses. See Grant v. State, 195 Ga. App. 463 (393 SE2d 737). Here, the evidence is sufficient because B. G. W. Ill and his parents all admitted in court that, although B. G. W. Ill was 15 years old and had only a learner’s permit, he frequently drove to school without an authorized, licensed driver in the car. The record also reflects that the parents consented to B. G. W. Ill driving without a license because they had the financial resources to stand behind him if he had an accident. This evidence is sufficient. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); In the Interest of J. K. D., 211 Ga. App. 776, 778 (440 SE2d 524); In the Interest of R. A. W., 197 Ga. App. 225 (398 SE2d 261).

Decided August 23, 1995

John A. Rumker, for appellant.

Richard E. Currie, District Attorney, for appellee.

2. The contentions made by B. G. W. Ill regarding the advice of his rights in these proceedings are without merit. The procedures in juvenile courts for traffic offenses are established in OCGA § 15-11-49; juvenile traffic offenses are given special treatment in juvenile law and are not considered delinquency proceedings unless transferred to the delinquency calendar. Cabral v. White, 181 Ga. App. 816, 817 (354 SE2d 162). With the exception of some serious traffic offenses, exclusive jurisdiction over juvenile traffic offenses is vested in the juvenile court. OCGA § 15-11-49 (b) and (c). Under OCGA § 15-11-49 (d), a juvenile traffic offense is hot an act of delinquency unless transferred to the delinquency calendar. Thus, the procedures are informal, and disposition is permitted upon the admission of the child. OCGA § 15-11-49 (f). Considering the informal nature of the proceedings, we find that Juvenile Court Rule 4.7 is not applicable to traffic offenses under OCGA § 15-11-49. The juvenile court below did not err by treating the procedures informally.

Judgment affirmed.

Johnson and Smith, JJ., concur.