author: Andrews, Chief Judge.

text:
    A97A2060.
    WILSON v. THE STATE.
    (496 SE2d 746)
   Andrews, Chief Judge.

Albert Wilson, convicted of one count of child molestation, appeals following the trial court’s denial of his motion for new trial.

Wilson was charged with three counts. The first two charged child molestation, and Count 3 charged aggravated child molestation of N. H., who was thirteen years old at the time of the incidents. The jury found Wilson not guilty of the first two counts and guilty of child molestation as a lesser included crime of Count 3.

1. We consider Wilson’s third enumeration, claiming insufficiency of the evidence, first. In so doing, we view all the evidence in the light most favorable to the verdict, keeping in mind that an appellate court does not weigh the evidence or determine witness credibility, but only determines the legal sufficiency of the evidence under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Brewer v. State, 219 Ga. App. 16, 17 (1) (463 SE2d 906) (1995).

So viewed, the evidence was that Wilson had been involved with and eventually married N. H.’s mother in 1989. Initially, he believed that N. H. was his daughter. In fact, N. H. was not his child. Although N. H. was told when she was five years old that Wilson was not her biological father, she grew up calling him “Daddy.” Wilson and his wife attended a “holiness doctrine” church and believed in strict discipline for their children. N. H. began running away from home in the fourth grade because, according to her, she was tired of her parents fighting. During the intervening years before 1995, she ran away five to ten times.

N. H. shared a bedroom with her four-year-old sister. She stated that, beginning in February 1995, Wilson began coming into the bedroom and committed the following acts over several months. He got into her bed, took down her pants, and “tried to stick it in,” returning later to tell her she could not tell anybody because Anthony Murphy “from our old church had put a voodoo doll on him and made him do it.” When her stepbrother Sidney was in the hospital and Mrs. Wilson was staying overnight with him, Wilson pulled her into his bedroom and tried to do it again, ejaculating on her stomach which she described as like watered down milk. He told her that was how you got pregnant. Another time, while her mother was gone, Wilson pulled her into his bedroom and started talking about a scar he had on his penis which he tried to make her look at. He said it had been caught in a zipper when he was a child. He also tried to get her to lick something off his penis and, finally, attempted anal sex with her. She told her mother about the abuse while they were out of town for a relative’s funeral, and her mother said she would talk to Wilson, but she did not.

In September 1995, after the last incident and after Wilson had slapped her in the face for leaving her siblings alone in the house, N. H. jumped out a second story window and ran away again. She rode to the end of a MARTA bus line and approached a stranger’s house. She refused to return home, and the police were called, resulting in this prosecution.

N. H. was examined by a pediatrician on September 9, several days after the last alleged act. She stated that N. H. was premenstrual and, while there was a “notch” in N. H.’s hymen which could be consistent with her history of abuse, it also could be consistent with a number of other explanations.

Although the jury found Wilson not guilty of placing his perns and hand on N. H.’s vagina, there was sufficient evidence to convict him of child molestation based on his showing his penis to her, his attempt at anal sodomy, and his attempt to get her to lick his penis. Mrs. Wilson, who verified the scar and said it was from a zipper, had not told N. H. about it. Jackson v. Virginia, supra.

Wilson testified, acknowledging that he had a scar on his penis which he said was from circumcision, but denied all other acts of abuse. “ Tt is the prerogative of the jury to accept the defendant’s statement as a whole, or to reject it as a whole, to believe it in part, or disbelieve it in part. In the exercise of this discretion they are unlimited. Furthermore, the credibility of witnesses and the resolution of such conflicts are for the jury. . . .’ [Cit.]” Washington v. State, 225 Ga. App. 262, 263 (1) (483 SE2d 683) (1997).

2. The second enumeration is that the court “erred by answering a jury question that the court did not understand.”

The jury began deliberations at 1:00 p.m., and the jury asked at 2:42 p.m. if they could review the videotape of N. H.’s interview by the Georgia Center for Children and have a transcript of Mrs. Wilson’s testimony, but the court denied this request. At 2:50 p.m., the jury reported that without the replay or transcripts, it was deadlocked. The court instructed the jury to continue deliberating. At 4:54 p.m., the court sua sponte gave the “dynamite” charge contained in Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, pp. 156-157. The jury then asked the following question: “Regarding Count 3, if we reduce the charge from aggravated child molestation to child molestation, does a specific act of child molestation have to be identified? In other words, can the count be stated, ‘did an immoral and indecent act to [N. H.], a child under 14 years of age, with intent to arouse and satisfy the sexual desires of said accused, period? The period here is important to us.” After discussion with the prosecutor and counsel for Wilson, it was agreed that “[t]he answer is no.” The court then told the jury “if the eventual interpretation of what the question means is in the return of your verdict do you have to specify an act, the short answer is no.”

The jury was then excused for the evening and began deliberations again the next morning, asking if they could leave the other two counts undecided at 11:45 a.m., and returning the guilty verdict on the lesser included charge in Count 3 at 12:34 p.m.

Our consideration of this enumeration is precluded by the fact that Wilson’s counsel acquiesced in the court’s actions, and we will not consider this objection for the first time here. Height v. State, 214 Ga. App. 570, 571 (2) (448 SE2d 726) (1994).

3. The final enumeration is that the trial court erred when it charged the jury that Wilson “may be acquitted of aggravated child molestation and convicted of the lesser included offense of child molestation.”

The charge conference is not included in the record here, and there were no written requests to charge by Wilson. Wilson’s trial counsel, who testified at the motion for new trial hearing, believed that the jury was authorized to consider child molestation as a lesser included offense of aggravated child molestation. He therefore voiced no objection when the now objected-to charge was given.

Child molestation is, by definition, a lesser included offense of aggravated child molestation as a matter of law. OCGA §§ 16-6-4 (c); 16-1-6 (2).

Pretermitting the issue of the lack of objection at trial and assuming that the court’s charge on the lesser included offense was given sua sponte, there has been no showing by Wilson of the required abuse of discretion in giving the charge which would constitute harmful error. Glisson v. State, 165 Ga. App. 342, 343 (6) (301 SE2d 62) (1983); see Terry v. State, 224 Ga. App. 157, 161 (4) (480 SE2d 193) (1996).

Decided January 15, 1998.

Herbert Adams, Jr., for appellant.

J. Tom Morgan, District Attorney, Lee A. Mangone, Robert M. Coker, Assistant District Attorneys, for appellee.

Judgment affirmed.

Pope, P. J, and Johnson, J., concur.

       Count 1 alleged that Wilson placed his penis on N. H.’s vagina, and Count 2 alleged he placed his hand on her vagina.

       The third count alleged Wilson placed his mouth on the child’s vagina.

       This charge has been approved in Ratcliff v. Ratcliff, 219 Ga. 545 (134 SE2d 605) (1964) and Spaulding v. State, 232 Ga. 411, 413 (4) (207 SE2d 43) (1974). Christian v. State, 190 Ga. App. 667, 670 (3) (379 SE2d 807) (1989).


source: Caselaw Access Project

license: Public Domain

text:
    A97A2155.
    HARVILLE v. GUNTER.
    (495 SE2d 862)
   Andrews, Chief Judge.

Karen Harville appeals from the trial court’s judgment granting K. B. Gunter’s, d/b/a Exceptional Rehab Services (Exceptional Rehab), request for an injunction upholding the covenant not to compete in Harville’s employment contract. Harville brings ten enumerations of error, contending in main part that the covenant not to compete is overbroad and unreasonable in its terms. We agree and reverse the judgment of the trial court.

Exceptional Rehab hired Harville as a speech pathologist in July 1995. Harville signed a covenant not to compete at the time she was hired and again a year later. The covenant not to compete which she signed in July 1996, required her to “restrict her actions” as follows:

“(b) For a period of one (1) year after termination of Employee’s employment by Employer, whether such termination is with or without cause and whether such termination is at the instance of Employer or Employee or as a result of a non-renewal of this Agreement, for a period of one (1) year after such termination, directly or indirectly, for herself, or as agent, or employee of any other person or persons, or through any other person or persons as her agent, Employee, or otherwise, engage in the practice of speech-language pathology or be an officer, director, shareholder, or employee of any corporation which engages in the practice of speech-language pathology and/or audiology in Troup County, Upson County, Pike County, Lamar County, Georgia, or in any town or city in such other county or counties as Employee may hereinafter practice speech-language pathology in the employment of the Employer;
“(1) Engage in the practice of speech-language pathology;
“(2) Provide speech-language pathology or audiology services to any person or organization which received such services from Exceptional Rehab Services at any time during Employee’s employment by Employer; or
“(3) Engage in speech-language pathology and/or audiology activities at a facility serviced by Exceptional Rehab Services at any time during Employee’s employment by employer. . . .”

A little over three months after signing this agreement, Harville informed Exceptional Rehab that she was quitting her job effective December 31, 1996. Harville then took a job with Professional Rehabilitation Services and began practicing speech pathology at Riverside Nursing Home in Thomaston, Georgia, which is in Upson County. Harville had previously practiced speech pathology at Riverside Nursing Home for Exceptional Rehab.

Exceptional Rehab filed a request for an injunction pursuant to the contract. The trial court granted the injunction, finding the covenant not to compete was neither unreasonable nor overly broad. This appeal followed.

The majority of Harville’s enumerations of error concern claims that several portions of the covenant are unenforceable because they are unreasonable and overbroad. “While a contract in general restraint of trade or which tends to lessen competition is against public policy and is void (1983 Ga. Const., Art. III, Sec. VI, Par. V (c); OCGA § 13-8-2), a restrictive covenant contained in an employment contract is considered to be in partial restraint of trade and will be upheld if the restraint imposed is not unreasonable, is founded on a valuable consideration, and is reasonably necessary to protect the interest of the party in whose favor it is imposed, and does not unduly prejudice the interests of the public. Whether the restraint imposed by the employment contract is reasonable is a question of law for determination by the court which considers the nature and extent of the trade or business, the situation of the parties, and all the other circumstances. A three-element test of duration, territorial coverage, and scope of activity has evolved as a helpful tool in examining the reasonableness of the particular factual setting to which it is applied.” (Citations and punctuation omitted.) W. R. Grace & Co. v. Mouyal, 262 Ga. 464, 465 (1) (422 SE2d 529) (1992). Applying this three-element test to the agreement before us, we find two clauses of the contract are unreasonably overbroad.

1. The covenant is overbroad in terms of territorial coverage. The territorial coverage in the agreement was for “Troup County, Upson County, Pike County, Lamar County, Georgia, or in any town or city in such other county or counties as Employee may hereinafter practice speech-language pathology in the employment of the Employer.” The covenant also prohibited Harville from working as a speech pathologist with any person, organization, or at any facility serviced by Exceptional Rehab at any time during her employment at Exceptional Rehab. Because of the language referring to “other counties” in which Harville may practice and “other facilities” at which Exceptional Rehab may provide services in the future, Harville could not determine with any certainty at the time site signed the contract the extent of the prohibition. Britt v. Davis, 239 Ga. 747, 749 (238 SE2d 881) (1977); Orkin Exterminating Co. v. Pelfrey, 237 Ga. 284, 285 (227 SE2d 251) (1976); Durham v. Stand-By Labor &c., 230 Ga. 558, 562 (198 SE2d 145) (1973). This Court has held that “a territorial limitation not determinable until the time of the employee’s termination invalidates the provision and the entire agreement.” Jarrett v. Hamilton, 179 Ga. App. 422, 424-425 (346 SE2d 875) (1986).

Decided January 15, 1998.

Shepherd & Johnston, William G. Johnston III, for appellant.

Alan W. Connell, for appellee.

2. The covenant is also overbroad in the scope of activity prohibited. The covenant provides that Harville may not “engage in the practice of speech-language pathology or be an officer, director, shareholder, or employee of any corporation which engages in the practice of speech-language pathology and/or audiology. . . .” This imposes a greater limitation on the employee than is necessary because Harville is prohibited from being an officer or director or owning stock in other companies, activities which are very different from her work as a speech pathologist at Exceptional Rehab. As a result, this restriction is broader than necessary to protect the employer. Puritan/Churchill Chem. Co. v. Eubank, 245 Ga. 334, 335 (265 SE2d 16) (1980); Browning v. Orr, 242 Ga. 380, 381 (249 SE2d 65) (1978); American Gen. Life &c. Ins. Co. v. Fisher, 208 Ga. App. 282 (430 SE2d 166) (1993); Jarrett, supra at 424.

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

Therefore, for the reasons discussed above, we hold the trial court erred in granting Exceptional Rehab’s request for an interlocutory injunction.

Judgment reversed.

Johnson and Blackburn, JJ, concur.


text:
    A97A2185.
    LEWIS v. GEORGIA-PACIFIC CORPORATION.
    (496 SE2d 280)
   Andrews, Chief Judge.

Ellis Lee Lewis appeals from the trial court’s order granting summary judgment to Georgia-Pacific Corporation on Lewis’s complaint for injuries received while cleaning out chemical tanks at Georgia-Pacific’s resin plant. Lewis claims the trial court erred in determining that his rights and remedies were limited to the provisions of the Workers’ Compensation Act. We affirm the judgment of the trial court.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a [genuine] jury issue on at least one essential element of plaintiff’s case. ... A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case.” (Citation and emphasis omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

The evidence, viewed in the light most favorable to Lewis as nonmovant, showed that from the end of 1991 to February 1996, Lewis worked for Wendell Patton who contracted employees out to other businesses on a temporary basis. Wendell Patton contracted Lewis out to Georgia-Pacific, and Lewis worked at Georgia-Pacific from November 1, 1991 to October 1994. While he worked at Georgia-Pacific, Lewis’s duties consisted of cleaning out chemical tanks, sweeping and unloading trucks. As a result of this exposure to chemicals, Lewis claims he received burns on the exposed parts of his body and now suffers hallucinations in which he believes worms are crawling out of the keloid scars resulting from the burns.

Georgia-Pacific filed a motion for summary judgment which the trial court granted. The court found Lewis’s claim to be barred by the Workers’ Compensation Act under either the “borrowed servant” doctrine or under the exclusivity provision of OCGA § 34-9-11 (c) because he was an employee of a temporary help contracting firm. Lewis appeals this decision, claiming he does not meet the criteria for a borrowed servant and, therefore, Georgia-Pacific is liable in tort for his on-the-job injuries.

In order for Lewis to be considered the “borrowed servant” of Georgia-Pacific, the evidence must show that “(1) the special master had complete control and direction of the servant for the occasion; (2) the general master had no such control, and (3) the special master had the exclusive right to discharge the servant.” (Punctuation omitted.) Six Flags Over Ga. v. Hill, 247 Ga. 375, 377 (276 SE2d 572) (1981), quoting U. S. Fidelity &c. Co. v. Forrester, 230 Ga. 182, 183 (196 SE2d 133) (1973). “An employee, working as a borrowed servant, may recover for injuries sustained in connection with his work from either his general or special employer, or in some instances, both. Such recovery, however, is limited to those benefits available under workers’ compensation law.” Coca-Cola Co. v. Nicks, 215 Ga. App. 381, 382 (450 SE2d 838) (1994).

Here, the undisputed evidence showed that Lewis was the borrowed servant of Georgia-Pacific. Lewis testified at his deposition as follows: “Q. Now, all the instructions as to what to do and how to do and what you were supposed to do over at the Georgia Pacific plant, whatever that you got, it would have been given to you by Georgia Pacific people because Wendell Patton wasn’t over there; isn’t that correct? A. I believe so. Q. And somebody from Georgia Pacific told you everything about what to do, how to do it, and when to do it; isn’t that correct? A. Told me, yes, told me what to do and when to do it, yeah. Q. And if anybody was to give you any kind of instructions on what to do and how to do it, it would have had to have been Georgia Pacific people? It couldn’t have been Mr. Patton because Mr. Patton wasn’t over there; isn’t that correct? A. That’s correct.”

Lewis’s own testimony shows that the first two prongs of the borrowed servant doctrine, that the special employer had complete control and direction of the work and the general employer had none, are satisfied. Although Lewis argues that Georgia-Pacific did not have complete control because Patton provided for his transportation to and from work and pressured him to go to work at the Georgia-Pacific plant, that does not affect the outcome. Lewis was under the control and direction of Georgia-Pacific at the time the injury complained of occurred. Therefore, it is immaterial whether or not he was always under the control and direction of Georgia-Pacific. Six Flags, supra at 377.

In looking at the third prong, Wendell Patton stated in his affidavit that Georgia-Pacific had the exclusive right to discharge any of his employees from work at its facility and had exercised that right more than once. This affidavit is undisputed. Therefore, the evidence shows that Lewis was a borrowed servant at the time of his injury. Accordingly, Lewis’s remedy, if any, is limited to workers’ compensation benefits, and he is barred from suing Georgia-Pacific in tort for his on-the-job injuries. Six Flags, supra; Coca-Cola, supra.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.

Decided January 15, 1998.

Clyde W Royals, for appellant.

Alston & Bird, Elizabeth A. Gilley, Elizabeth P. Whitener, Davis, Gregory, Christy & Forehand, John N. Davis, for appellee.


author: Johnson, Judge.

text:
    A97A2186.
    CUELLAR v. THE STATE.
    (496 SE2d 282)
   Johnson, Judge.

Martin Cuellar was indicted for possession of cocaine with intent to distribute after police discovered drugs and $101,440 in cash in his residence. The state also initiated an in rem forfeiture proceeding against the currency. By consent order, Cuellar forfeited the currency to the state. Cuellar then filed a plea of former jeopardy and motion to dismiss the indictment, contending that the judgment of forfeiture constituted punishment and invoked state and federal bars against multiple prosecutions. He appeals from the denial of his plea in bar based upon double jeopardy.

Cuellar’s argument that the forfeiture proceeding constituted a criminal punishment is without merit. A forfeiture proceeding under OCGA § 16-13-49 is a civil sanction and does not constitute punishment for the purpose of double jeopardy analysis under the United States Constitution. Murphy v. State, 267 Ga. 120 (475 SE2d 907) (1996). Nor does such a proceeding give rise to a valid double jeopardy defense under state constitutional law. See Manley v. State, 224 Ga. App. 661, 662 (1) (482 SE2d 416) (1997).

In addition, Cuellar’s argument that the forfeiture proceeding constituted punishment because it was in personam rather than in rem is without merit. First, the proceeding here was clearly in rem. The complaint was styled, “STATE OF GEORGIA, Plaintiff, v. ONE HUNDRED ONE THOUSAND^] FOUR HUNDRED FORTY DOLLARS ($101,440.00) IN U.S. CURRENCY; Defendant, in rem?' The action was not brought against Cuellar personally. Second, an action brought under Georgia’s forfeiture statute, even an in personam proceeding, is not considered a criminal punishment. Rojas v. State, 226 Ga. App. 688, 689 (487 SE2d 455) (1997). Inasmuch as Cuellar has not been subjected to multiple punishments for the same offense, the trial court correctly denied his plea of former jeopardy. See Lundy v. State of Ga., 226 Ga. App. 197 (2) (482 SE2d 516) (1997).

Judgment affirmed.

Pope, P. J., and Blackburn, J., concur.

Decided January 15, 1998.

Stephen T Maples, J. Ralph McClelland III, for appellant.

J Tom Morgan, District Attorney, Keith E. Adams, Priscilla N. Carroll, Assistant District Attorneys, for appellee.


author: Blackburn, Judge.

text:
    A97A2376.
    KULKOV v. BOTVINIK.
    (495 SE2d 662)
   Blackburn, Judge.

Alexander Kulkov appeals the trial court’s order striking his answer and counterclaim and awarding judgment to Semen Botvinik. The underlying action arose when Botvinik sued his son, Kulkov, for money owed based on a promise to pay, fraud, deception, and theft. After the trial court found Kulkov in wilful violation of its previous discovery order, it struck Kulkov’s answer and counterclaim. The trial court then awarded damages and attorney fees to Botvinik.

1. In several enumerations of error, Kulkov contends that the trial court erred in its decision regarding his discovery violations. However, Kulkov has failed to provide transcripts of the hearing in this case, and he has made no effort to comply with OCGA § 5-6-41 (c).

“It is well-settled law that without a transcript to review, this court must assume as a matter of law that the evidence at trial supported the court’s findings. It is the burden of the complaining party, including pro se appellants, to compile a,complete record of what happened at the trial level, and when this is not done, there is nothing for the appellate court to review. . . . Wright v. State, 215 Ga. App. 569, 570 (2) (452 SE2d 118) (1994).” (Punctuation omitted.) Jones v. State, 226 Ga. App. 608, 609 (487 SE2d 89) (1997). Because we have not been supplied with transcripts of the hearings in this matter, we are unable to review whether the trial court abused its discretion in striking Kulkov’s answer and counterclaim, or whether the trial court erred in awarding damages.

2. Kulkov contends that the trial court erred in allowing his trial counsel to withdraw at a “crucial stage” leaving him unrepresented during the hearing on the sanction motion. However, the record makes it clear that Kulkov’s attorney filed a motion to withdraw due to unpaid fees on December 26, 1996. The order permitting such withdrawal was signed on January 3, 1997, and filed on February 3, 1997. The motion for sanctions was filed on February 10, 1997, and the hearing thereon was held on March 19, 1997. Therefore, Kulkov had almost three months to find another attorney, which he failed to do. On these facts, we cannot say that the trial court abused its discretion in allowing Kulkov’s attorney to withdraw.

Decided January 15, 1998

Jason R. Hasty, for appellant.

Tanya Osensky, for appellee.

3. “Because [Kulkov] has intentionally failed to include the hearing transcript or statutorily authorized substitute in the record on appeal, he could therefore have no reasonable basis for anticipating that this Court would reverse the judgment of the trial court. Hosseini v. Donino, 222 Ga. App. 697 (2) (475 SE2d 665) (1996). [Botvinik’s] motion for sanctions for frivolous appeal is therefore granted, and pursuant to Court of Appeals Rule 15 (b), a penalty of [$500] is imposed against [Kulkov]. The trial court is directed to enter judgment against [Kulkov] in this amount upon return of the remittitur.” (Punctuation omitted.) Plumides v. American Engines &c., 227 Ga. App. 885, 886 (490 SE2d 552) (1997).

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.


text:
    A97A2438.
    In the Interest of R. D. S. P., a child.
    (495 SE2d 867)
   Andrews, Chief Judge.

Appellant, the father of R. D. S. P, appeals from the juvenile court’s order terminating his parental rights to his one-year-old son. The father argues on appeal there was insufficient evidence to support the judgment. We disagree and affirm.

The standard of review on appeal from a termination of parental rights is whether, after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s right to custody should be terminated. In the Interest of L. F., 203 Ga. App. 522 (417 SE2d 344) (1992). On appeal, “[t]his Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the trial court’s factfinding and affirm unless the appellate standard is not met.” In the Interest of R. N., 224 Ga. App. 202 (480 SE2d 243) (1997).

The record shows that the child was born in February 1996. The child tested positive for cocaine at birth, and the mother had no plans to care for the child after they left the hospital. The Department of Family & Children Services (DFACS) filed a petition alleging the child was deprived. Although neither parent attended the deprivation hearing, the father, who was in jail on a felony drug conviction, later met with a DFACS caseworker to devise a family reunification plan. Under this plan the father was to fulfill several requirements upon his release from jail and take a psychological test while in jail. Although the father agreed to do the psychological test, he did not cooperate fully. The psychologist who did the evaluation testified that the father was not “forthcoming” in his answers and claimed to have “absolutely no problems whatsoever.” The father also was not entirely truthful in the interview, failing to mention a prior felony drug conviction.

DFACS then filed a petition to terminate both parents’ parental rights. At the time of the hearing on the termination petition, the father was still in jail and had been there since shortly after R. D. S. P.’s birth. As a result, the father had little, if any, contact with the child and had never contributed to the child’s support. Moreover, the father had not complied with the reunification plan in that, by his own admission, he did not cooperate with the psychological testing. Nevertheless, the father appeals from the termination of his parental rights, arguing that he will remain drug free in the future and that his mother is willing and able to care for the child until he is released from jail and can establish a home for the child.

“Pursuant to OCGA § 15-11-81 (a), a juvenile court deciding whether to terminate a parent’s rights employs a two-prong test, first determining whether there is clear and convincing evidence of parental misconduct or inability.” (Punctuation omitted.) In the Interest of R. N., supra. A finding of parental misconduct or inability must rest on clear and convincing evidence showing: (1) the child is a deprived child as defined by OCGA § 15-11-2; (2) the lack of proper parental care or control by the parent in question is the cause of the child’s status as deprived; (3) such cause of deprivation is likely to continue or will not likely be remedied; and (4) the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child. OCGA § 15-11-81 (b) (4) (A) (i), (ii), (iii), and (iv); In the Interest of R. N., supra. The Code defines a “deprived child” as “a child who: (A) Is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health or morals. . . .” OCGA § 15-11-2 (8) (A). If the first prong of the test is met, the trial court then considers whether termination of the parental rights is in the child’s best interest. In the Interest of R. N., supra.

The evidence at the hearing was that, in addition to the felony conviction for which he is currently serving a sentence, the appellant had another felony conviction for attempting to possess cocaine in 1989 and also was convicted of misdemeanor possession of marijuana in 1984. Appellant’s mother testified that he started having problems with drugs in high school and these problems continued, culminating in his current jail sentence.

Appellant has another child, a 12-year-old boy, and the boy’s mother testified that appellant was a good father while she was married to him. However, she said that since the divorce appellant has spent little time with his son. She also stated that she would allow the boy to see his father only if the boy’s grandmother was present. She said she imposed this restriction because the appellant was involved with drugs and she was afraid he and his friends would be a bad influence on the child. The former wife testified that appellant had never paid her any child support for their son, but she also stated she never asked for any child support.

Appellant’s drug use also concerned the DFACS caseworker who investigated problems with appellant’s niece. The child lived with appellant’s mother, and the caseworker testified he told the mother she must not allow appellant to come to the house anymore or the child might have to be removed from the home.

As to appellant’s claim that his mother could care for the child until he could find a place to live, the caseworker also testified that DFACS had received complaints about the living conditions at the grandmother’s house. The caseworker stated that when he investigated the complaints, he. found doors off the hinges, holes in the walls, flea infestation, and generally deplorable living conditions. Although appellant’s mother had tried to improve the physical conditions in the house, the caseworker said he was still concerned with reports of drug use in the home.

It is undisputed that R. D. S. P. is a deprived child and the deprivation is a result of the lack of proper parental care. Accordingly, this Court must focus on the third criterion of OCGA § 15-11-81 (b) (4) (A) (iii), whether the deprivation is likely to continue. In determining whether conditions of deprivation are likely to continue, the court may consider the past conduct of the parent. In the Interest of J. M. C., 201 Ga. App. 173, 174 (410 SE2d 368) (1991). In this case, there was not only evidence of past unfitness, there was present unfitness also. Blackburn v. Blackburn, 249 Ga. 689, 692 (292 SE2d 821) (1982). While imprisonment alone does not automatically authorize a termination of parental rights, it will support such a ruling when adequate aggravating circumstances are shown to exist. In the Interest ofL. F, supra.

Here, in addition to his present imprisonment, the father has a long history of criminal convictions and drug-related problems. Equally significant is the reluctance of both the caseworker and appellant’s former wife to allow appellant to be with his niece or son without supervision. In light of this evidence, the court was authorized to conclude that the deprivation was likely to continue and to find by clear and convincing evidence that the cause of the deprivation was the father’s misconduct and inability to care for the child.

Decided January 15, 1998.

John D. Gatch, Darden & Moyers, Andrea S. Moyers, for appellant.

Thurbert E. Baker, Attorney General, Jeffrey L. Milsteen, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Stephanie M. Baldauff, Shalen A. Sgrosso, Assistant Attorneys General, Beckmann & Lewis, Leo G. Beckmann, Jr., for appellee.

In looking at the second prong of the test, whether termination is in the best interest of the child, the court may consider the child’s need for a stable home environment and the detrimental effects of prolonged foster care. In the Interest of J. M. C., supra at 175. These considerations together with the evidence of the father’s inability to care for the child were sufficient clear and convincing evidence that termination was also in the best interest of the child. Id.; In the Interest of T. R. G., 162 Ga. App. 177 (290 SE2d 523) (1982).

Judgment affirmed.

Pope, P. J., and Blackburn, J., concur.

       The mother, whose parental rights were also terminated, abandoned the child a few days after his birth and has not appealed the termination of her parental rights. Although the father was not married to the child’s mother when the child was born, he legitimated the child shortly after birth.


text:
    A97A2516.
    THE STATE v. HALSTEAD.
    (496 SE2d 279)
   Andrews, Chief Judge.

The State appeals from the trial court’s order granting Jason S. Halstead’s motion to suppress the results from an Intoxilyzer 5000 test on the grounds that the officer who stopped him failed to read the implied consent rights in the exact language mandated by OCGA § 40-5-67.1 (b). We affirm.

OCGA § 40-5-67.1 (b) states that the officer shall select and read to the person the appropriate implied consent warning. The appropriate consent warning in this case is, in pertinent part: “After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing.” OCGA § 40-5-67.1 (b) (2). The implied consent warning read to Halstead was, in pertinent part: “After first submitting to the required state tests, you are entitled to an additional chemical test of your blood, breath, urine, or other bodily substance at your own expense and from qualified personnel of your own choosing.” The only variance between the implied consent warning given to Halstead and the implied consent warning in OCGA § 40-5-67.1 (b) is that the officer told Halstead he was entitled to an additional chemical test, not tests as mandated by the statute.

Decided January 15, 1998.

Richard W. Shelton, Solicitor, for appellant.

Samuel F. Greneker, William C. Head, for appellee.

In interpreting OCGA § 40-5-67.1 (b), this Court has held that the language directing the officer to “select and read to the person the appropriate implied consent warning” means that substantial compliance with this Code section is not sufficient. The officer must give the correct warning. State v. O’Donnell, 225 Ga. App. 502, 505 (484 SE2d 313) (1997).

Further, in Richards v. State, 225 Ga. App. 777 (484 SE2d 683) (1997), relied on by the trial court, we held that the results of a chemical breath test should have been suppressed because “[t]he implied consent warning read by [the officer] did not match exactly the words of OCGA § 40-5-67.1 (b). . . .” Id. at 779 (2). The opinion in Richards does not recite what consent warning was read or how materially it differed from the one mandated by OCGA § 40-5-67.1 (b).

Although we realize that the warning read to Halstead differs only slightly from that mandated by the Code, substantial compliance with this Code section is no longer sufficient. Moreover, the trial court was entitled to rely on the language in Richards which states that the warning must match exactly the wording of OCGA § 40-5-67.1 (b). Therefore, we hold that since the implied consent warning read to Halstead was not the exact warning mandated by OCGA § 40-5-67.1 (b), the trial court did not err in granting Halstead’s motion to suppress the Intoxilyzer 5000 results.

Judgment affirmed.

Pope, P. J., and Blackburn, J., concur.


text:
    A97A2533.
    In re REYNALDO VICTORINE.
    (495 SE2d 864)
   Johnson, Judge.

Reynaldo Victorine was subpoenaed to testify as a state’s witness in the murder trial of Fredric Tokars. Victorine previously testified at a pre-trial hearing regarding Tokars’ prior legal representation of Victorine in the appeal of a murder conviction. At the pre-trial hearing, Victorine responded to all questions posed by the state and defense and did not invoke his privilege against self-incrimination.

According to Victorine, he hired Tokars in 1992 to handle his appeal for a fee of $50,000. Tokars told him he was a part-time judge and that he knew a judge on the appellate courts. Tokars indicated that a portion of Victorine’s fee would be used to bribe the judge and “that the person up there would help him and make sure [his] appeal [would] get granted for sure.”

Victorine also testified that when discussing a triple murder charge against him in the Virgin Islands, for which he was not prosecuted, Tokars asked Victorine if he could help Tokars hire someone to “do the same thing,” meaning to do a “hit.” Tokars told Victorine that in exchange for his help, Tokars would give him back a portion of the fee for the appeal. Victorine testified he did not furnish Tokars with the name of any hit man.

Tokars worked on Victorine’s case, but withdrew from the case prior to filing the appeal. Victorine later learned about the murder of Tokars’ wife while serving his prison sentence for the murder conviction. Subsequently, Victorine was interviewed by Cobb County police officers regarding his association with Tokars. Victorine further testified at the pre-trial hearing about a drug charge he “beat” in DeKalb County.

When Victorine was called as a state’s witness in the Tokars case, he invoked his privilege against self-incrimination to questions posed by counsel for both the state and defense. At least three hearings were held, and counsel was appointed in an effort to resolve whether Victorine could validly invoke his Fifth Amendment privilege against self-incrimination.

At the third hearing, the trial judge advised Victorine that if he determined Victorine’s invocation of the privilege was invalid, Victorine would be instructed to answer the questions. The trial judge further warned Victorine that if he still refused to answer the questions after being instructed to do so, he would be held in contempt of court and punished. Victorine responded to some questions, but refused to testify about certain conversations with Tokars, invoking his Fifth Amendment privilege. After the trial court determined that Victorine could not validly invoke his privilege against self-incrimination and after Victorine persisted in refusing to answer the questions in violation of the court’s order, Victorine was held in contempt. The trial court then continued the matter to a fourth hearing, where the state was permitted to ask the same questions it had propounded at the pre-trial hearing.

At the fourth hearing, Victorine responded to certain questions, could not recall answers to some questions, and invoked his Fifth Amendment privilege not to testify as to some questions. Specifically, Victorine refused to answer questions regarding “an appeal for the witness and information about a hit.” After determining that Victorine could not validly invoke his privilege against self-incrimination, the trial judge again ordered Victorine to respond to the questions and held him in contempt when he refused to answer after having been ordered to do so.

The trial court merged all counts of contempt into one count and sentenced Victorine to pay a $500 fine and to serve 20 days in custody. Victorine appeals this conviction for contempt. We affirm.

1. In his first enumeration, Victorine contends that no rational trier of fact could have found him guilty of contempt beyond a reasonable doubt. We disagree.

Clearly, a trial court is empowered to inflict punishment for contempt of court upon a witness who disobeys its lawful order. OCGA § 15-1-4 (a) (3). “The appropriate course where, as here, a witness invokes his right to remain silent is as follows: First, the trial court must determine if the answers could incriminate the witness. If so, then the decision whether it might must be left to the [witness]. On the other hand, where the trial court determines that the answers could not incriminate the witness, he must testify (or be subject to the court’s sanction). It is for the court to decide if the danger of incrimination is ‘real and appreciable.’ ” (Citations and punctuation omitted; emphasis in original.) Lawrence v. State, 257 Ga. 423, 424, n. 3 (360 SE2d 716) (1987); Spivey v. State, 200 Ga. App. 284, 285 (407 SE2d 425) (1991) (physical precedent only).

In the present case, the trial judge properly followed this procedure. After Victorine invoked his right to remain silent, the trial judge determined that his answers could not incriminate him and ordered him to answer the state’s questions. When Victorine still refused to respond to the questions, after three hearings and the appointment of counsel to advise Victorine on the witness stand, the trial court held Victorine in contempt. He was held in contempt again after refusing to answer the questions during a fourth hearing. Clearly, Victorine violated the trial court’s order to respond to the state’s questions. The ultimate issue raised in this case is whether the trial court correctly determined that Victorine’s responses would not incriminate him. We find, based on the evidence presented, that the trial court made a correct determination.

Questions eliciting testimony that Tokars allegedly offered to refund an amount of money to Victorine if he could help Tokars with a “hit” did not incriminate Victorine in the Virgin Island murders. No questions regarding Victorine’s involvement in the Virgin Island murders were posed, and Victorine specifically indicated in his pretrial hearing testimony that he refused to hire a hit man for Tokars. Victorine’s assertion that testimony regarding Tokars’ alleged intent to pay off an appellate judge could have been used against him to charge him with bribing a public official likewise lacks merit. As the trial court indicated in its order, the acts and conversations took place in 1992, and the statute of limitation for the alleged bribery had expired by the time of the trial in 1997. OCGA §§ 16-10-2; 17-3-1. Eegarding testimony of the drug charge in DeKalb County which Victorine allegedly “beat out,” Victorine willingly answered questions regarding his prior drug charge and responded that the charge was dismissed. He was not held in contempt regarding questioning on this issue.

Viewing the evidence in a light most favorable to support the trial court’s ruling, we find a rational trier of fact could have found Victorine guilty beyond a reasonable doubt of contempt. See In re Phillips, 225 Ga. App. 478, 479 (1) (484 SE2d 254) (1997).

2. Victorine further contends the contempt order is deficient on its face in that it fails to set forth the facts upon which the trial judge concluded that he was guilty of contempt. Victorine specifically argues that the trial judge made no finding that his actions had a deleterious impact on the court proceeding or in any way interfered with the administration of justice. However, a review of the record shows that before holding Victorine in contempt, the trial judge cited Wynne v. State, 139 Ga. App. 355, 357 (228 SE2d 378) (1976), noting that witnesses who have been properly subpoenaed are under an obligation to further the administration of justice by appearing and testifying as to any relevant facts within their knowledge. In addition, contrary to Victorine’s assertion, the trial court’s contempt order is replete with facts supporting the contempt order.

In re Shafer, 216 Ga. App. 725, 726 (1) (455 SE2d 421) (1995), cited by Victorine in support of his argument, is inapposite. In Shafer, no transcript of the proceeding in which the allegedly contemptuous conduct occurred was contained in the record on appeal. Therefore, it was necessary for the trial court’s order to memorialize the events that transpired so as to provide a proper record for appellate review. In the present case, not only does the contempt order contain facts supporting the trial court’s imposition of contempt, but the transcripts reflecting Victorine’s contemptuous conduct are part of the record in this appeal and afford this Court an ample record for review. Thus, this enumeration lacks merit.

Judgment affirmed.

Pope, P. J., and Blackburn, J., concur.

Decided January 15, 1998.

Roderick H. Martin, for appellant.

Thomas J. Charron, District Attorney, Nancy I. Jordan, Debra H. Bernes, Russell J. Parker, Assistant District Attorneys, McKenney & Froelich, Jerome J. Froelich, Jr., Jimmy D. Berry, for appellee.

       At the present time, Victorine is serving a life sentence for murder.


author: Birdsong, Presiding Judge.

text:
    A97A1875.
    STACEY et al. v. JONES.
    (495 SE2d 665)
   Birdsong, Presiding Judge.

The estate of Carl Robert Stacey, Jr., and Robert Mark Brittain, in his capacity as Temporary Administrator of the estate of Carl Robert Stacey, Jr., appeal the trial court’s grant of partial summary judgment to Martha Jane Jones and also appeal the denial of their motion for summary judgment seeking enforcement of a purported settlement. The case arose from an automobile accident involving the parties in which Jones was severely injured and Stacey was killed. The issues in this appeal concern whether the parties reached a settlement agreement and, if so, whether the agreement should be enforced.

Before suit was filed, Jones’ attorney on January 9, 1996, sent a demand letter to Stacey’s insurer offering to compromise. The letter stated: “I am now in a position to state the demand of my clients, Mrs. Martha J. Jones and W. L. Jones. Please note that this demand is contingent upon Mr. Stacey’s policy limits with Southern General being Fifteen Thousand Dollars ($15,000.00), and that there is no other applicable insurance available in this instance.” The letter further stated, “While we presently state no separate consortium demand for Mr. Jones, his tribulations also underscore that your insured’s policy limits are required in this instance.” The letter closed by stating “Accordingly, Mr. and Mrs. Jones demand Mr. Stacey’s policy limits of Fifteen Thousand Dollars ($15,000.00) at this time” and including a proviso the demand was only open for acceptance until 5:00 p.m., Tuesday, January 23, 1996. This time period was later extended until January 31, 1996.

The insurer responded by FAX on January 31, 1996: “This will confirm that we are tendering our insured’s policy limits of $15,000 in settlement of Mrs. Jones’ bodily injury claim.” Later, on March 1, 1996, another attorney in the firm representing Jones sent a letter to the insurer stating, “Mrs. Martha Jane Jones hereby accepts your offer in the referenced matter as stated in your letter of January 31, 1996. Please forward the necessary draft and release immediately to consummate this settlement agreement.” Then on March 6,1996, the attorney representing Jones sent the following letter by FAX to Southern General: “Since my fax letter to you on Friday, March 1, 1996', a copy of which is enclosed, I have received no settlement draft and release or other communication from you. This is to advise Southern General Insurance Company that unless a settlement draft and release are received in my office by 5:00 p.m., March 8, 1996, I will understand that Southern General Insurance Company does not intend to consummate the settlement effected by your letter of January 31, 1996 and my letter of March 1, 1996, and Martha Jane Jones will proceed to prosecute her bodily injury claim against your insured(s) in court. If you have any questions, please contact me.”

Although Southern General sent a check within the time demanded by this letter, Jones’ attorney found the check unacceptable because the check was made payable to the attorney, Mrs. Jones, and Mr. Jones. Further, no release was forwarded with the check. Consequently, by letter dated March 8, 1996, Jones’ attorney notified Southern General that Jones considered the settlement agreement breached because the settlement was not consummated as specified by the letter of March 6, 1996. Southern General responded to this letter on March 13, 1996, by stating, “our failure to include the release with this check was a clerical error, as was the mis-wording of the payee on the settlement check. We are enclosing our check and release in the amount of $15,000 as agreed, made payable to you and your client.”

Mrs. Jones’ attorney returned the check and release to Southern General on March 18, 1996. Although the release was apparently unobjectionable, the check was incomplete as the amount of the check was not written in the space provided. Further, the letter returning the check advised Southern General that Mrs. Jones had decided to proceed with suit'against the insured and accusing Southern General of failing to act in good faith in attempting a settlement.

After Mrs. Jones filed suit against the insured’s estate and a motion to enforce the settlement was denied, Jones’ motion for partial summary judgment was granted. This appeal followed. Held:

1. The standards applicable to motions for summary judgment are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). When ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843). Further, when reviewing the grant or denial of a motion for summary judgment, this Court conducts a de novo review of the law and the evidence. Goring v. Martinez, 224 Ga. App. 137, 138 (2) (479 SE2d 432); Bishop v. Mangal Bhai Enterprises, 194 Ga. App. 874 (1) (392 SE2d 535).

2. “Under Georgia law, an agreement alleged to be in settlement and compromise of a pending lawsuit must meet the same requisites of formation and enforceability as any other contract. In this regard, it is well settled that an agreement between two parties will occur only when the minds of the parties meet at the same time, upon the same subject matter, and in the same sense. Further, the compromise of a dispute is binding on the parties. The law favors compromises, and a promise made in extinguishment of a doubtful claim is sufficient to support a valid contract. Where parties to litigation have entered into a definite, certain, and unambiguous settlement agreement, which is not denied, the trial court should make the agreement the judgment of the court, thereby terminating the litigation.” (Citation and punctuation omitted.) Southern Medical Corp. v. Liberty Mut. Ins. Co., 216 Ga. App. 289, 291 (454 SE2d 180).

“Compromises of doubtful rights are upheld by general policy, as tending to prevent litigation, in all enlightened systems of jurisprudence. In considering the enforceability of an alleged settlement agreement, however, a trial court is obviously limited to those terms upon which the parties themselves have mutually agreed. Absent such mutual agreement, there is no enforceable contract as between the parties. It is the duty of courts to construe and enforce contracts as made, and not to make them for the parties. The settlement agreement alleged to have been created in the case sub judice would have been the product of the attorneys for the parties. As the existence of a binding agreement is disputed, the proponent of the settlement must establish its existence in writing. The writing which will satisfy this requirement ideally consists of a formal written agreement signed by the parties. However, letters or documents prepared by attorneys which memorialize the terms of the agreement reached will suffice.” (Citations, punctuation, and emphasis omitted.) Herring v. Dunning, 213 Ga. App. 695, 696-697 (446 SE2d 199).

Considering the foregoing legal principles in light of the evidence as contained in the letters between the parties, it is apparent from the exchange of correspondence that a binding agreement was reached to settle Mrs. Jones’ claim for $15,000. Although Jones seeks to rely on the insurer’s seeming inability to get the draft and the release correct, this focus is misplaced. Nothing in the agreement reached between the parties specified that either the check or release would be submitted by a date and time certain or that time was of the essence. See OCGA § 13-4-20. Accordingly, the failure to comply with the separate demands of Jones’ counsel to forward the check and release by a certain time and date was not grounds to rescind the settlement. Therefore the trial court erred by denying the motion to enforce the settlement agreement and the order denying summary judgment must be reversed.

Decided January 16, 1998

Long, Weinberg, Ansley & Wheeler, Arnold E. Gardner, Kari A. Mercer, Dennis J. Webb, Jr., for appellants.

Law Offices of E. Wycliffe Orr, E. Wycliffe Orr, Maureen S. Con-nor, for appellee.

3. In view of our decision regarding the motion to enforce the settlement in Division 2, it follows that the trial court erred by granting partial summary judgment to Jones.

Judgment reversed.

Ruffin and Eldridge, JJ, concur.


text:
    A97A2012.
    LASSITER PROPERTIES, INC. v. DAVIDSON MINERAL PROPERTIES, INC.
    (495 SE2d 663)
   Birdsong, Presiding Judge.

Lassiter Properties, Inc. (“Lassiter”), appeals from the trial court’s order disqualifying its counsel. Held,:

Defendant Davidson Mineral Properties, Inc. (“Davidson Mineral”), filed a “motion for hearing and imposition of sanctions” in the above styled case in order to determine whether there had been improper contact by plaintiff Lassiter, or its counsel with persons known by them to have an adverse interest and to be represented by counsel. As applied to Lassiter’s counsel, DR 7-104 (A) (1) of the Code of Professional Responsibility provides that “[djuring the course of his representation of a client a lawyer shall not. . . communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.”

The trial court found that Lassiter’s counsel helped Lassiter prepare a letter sent to defendant which was critical of defendant’s attorneys and which sought to convince defendant to settle its dispute with Lassiter pro se. The trial court likewise found that plaintiff’s counsel sought to circumvent the ethical prohibition against communicating with a represented opposing client by doing indirectly through his client what he was expressly forbidden to do directly under DR 7-104 (A) (1), supra. See generally Clos v. Pugia, 204 Ga. App. 843 (420 SE2d 774) (1992). Based on these findings, the trial court disqualified Lassiter’s counsel. Lassiter thereafter filed both a notice of appeal and a “protective” application for interlocutory appeal from the disqualification order. Lassiter’s interlocutory application no. A97I0317 was denied by this Court by order issued on May 15, 1997. Lassiter’s direct appeal was docketed in this Court on May 28, 1997.

The appellee has filed a motion to dismiss Lassiter’s direct appeal because it is from a non-final order. The orthodox view regarding the appealability of a disqualification order is stated in Ewing Holding Corp. v. Egan-Stanley Investments, 154 Ga. App. 493, 495-496 (1) (268 SE2d 733) (1980). There it was held that an order disqualifying counsel is interlocutory and a direct appeal from such an order must be dismissed due to appellant’s failure to follow the required procedure for bringing an interlocutory appeal. OCGA § 5-6-34 (b). This view was expressly adopted by the Supreme Court in Cherry v. Coast House, Ltd., 257 Ga. 403, 404 (2) (359 SE2d 904) (1987), in which it was held that since a disqualification order is interlocutory, a notice of appeal from such an order does not act as a supersedeas unless the interlocutory appeal procedure has been followed.

Lassiter cites Stevens v. Thomas, 257 Ga. 645 (361 SE2d 800) (1987) as authority for the proposition that it is entitled to file a direct appeal from the order disqualifying its counsel for violation of disciplinary rules. In Stevens, a unanimous Supreme Court refused to address an order disqualifying counsel because the order was directly appealable at the time it was entered and the order actually appealed from was entered long after the preceding disqualification order. However, we note that the Supreme Court reached its conclusion without citation of supporting authority and without reference to its earlier opinion in Cherry, which was issued less than two months earlier during the same term of court. Moreover, the disqualified attorney in Stevens filed an appeal in his own name, which was consolidated with the related appeal filed by the defendants. The disqualified attorney in the present case has not likewise appealed in his own name. We also note that the disqualification order in Stevens sanctioned both attorney Stevens and the defendants by assessing attorney fees against them in an amount to be determined at a later date. No similar sanction was imposed against Lassiter in the present case. Finally, we find it significant that the disqualification issue in Stevens was not raised by appellants at the first possible opportunity on direct appeal even if the Supreme Court had treated the disqualification order as interlocutory in nature. See Brown v. Thomas, 257 Ga. 68 (354 SE2d 830) (1987) (appeal from contempt order entered against the defendants which discusses the same disqualification order at issue in Stevens). It was therefore all but a foregone conclusion that the Supreme Court would not address in Stevens the disqualification order it had previously discussed in Brown (at least as applied to the Brown defendants), regardless of the analysis employed. Given the many distinctions between Stevens and the present case and given the lack of jurisdictional analysis therein to guide the bench and bar in future cases, we reject Lassiter’s argument that the order complained of must necessarily be treated as directly appealable based on Stevens alone. Another case cited by Lassiter, State v. Evans, 187 Ga. App. 649 (371 SE2d 432) (1988), overruled on other grounds, State v. Smith, 268 Ga. 75, 76 at note 7 (485 SE2d 491) (1997), is likewise distinguishable since its rationale is based on the ramifications of the disqualification order as applied to the disqualified attorney (the county solicitor) personally and not as applied to the State itself.

Decided January 16, 1998.

In Hargrove v. Phillips, 186 Ga. App. 525 (368 SE2d 123) (1988), the main opinion at least suggests that a disqualification order is directly appealable and expressly states that such an order is “personal to” the clients of the disqualified attorney, but held that the appeal as to that order was untimely. Accord Stevens v. Thomas, supra. But a concurring opinion rejects the implication that an order disqualifying counsel is, or should be, directly appealable. The four dissenters in Hargrove argue that a disqualification order should be directly appealable both by the disqualified attorney and his or her client(s). The dissenters disagreed with the majority that the post-disqualification judgment from which the appeal was taken was in effect a contempt order entered on motion for reconsideration that affected only the disqualified attorney’s interests and not the appellants’ interests. However, since it appears a majority in Hargrove agreed that the appellants lacked standing to appeal the contempt order entered against the disqualified attorney (who did not appeal), we do not read Hargrove as necessarily overruling sub silentio this Court’s holding in Ewing Holding Corp., supra.

In light of the foregoing, we conclude that even if this Court were inclined to revisit the question of whether disqualification orders should be directly appealable, it appears the issue is now controlled by Cherry v. Coast House, Ltd., supra, which appears to be the latest definitive statement by the Supreme Court on the issue. But see Stevens v. Thomas, supra. It is therefore not within this Court’s discretion to consider the disqualification of Lassiter’s counsel by direct appeal at this time. Accordingly, appellee’s motion is granted and Lassiter’s appeal is hereby dismissed as premature.

Appeal dismissed.

Ruffin and Eldridge, JJ., concur.

Phears & Moldovan, H. Wayne Phears, Richard E. Harris, Schreeder, Wheeler & Flint, David H. Flint, for appellee.


author: Ruffin, Judge.

text:
    A97A2052.
    FULLER v. THE STATE.
    (496 SE2d 303)
   Ruffin, Judge.

A jury found Andrew L. Fuller guilty of theft by shoplifting and the trial court sentenced him to serve ten years. Fuller appeals from his conviction and sentence, asserting that his character was improperly placed into evidence, that the trial court failed to excuse for cause a biased juror and that the sentence was improper. For the following reasons, we reverse as to sentencing only.

Viewed in a light most favorable to support the verdict, the evidence shows that on May 18, 1993, Fuller and a female companion entered a grocery store, obtained a shopping cart and headed toward the cigarette counter. A store clerk saw Fuller pick up four cartons of cigarettes, place them in the cart and proceed to the back of the store. Several minutes later, the clerk noticed that Fuller had his jacket undone and was trying to put two of the cartons down into his pants. The clerk confronted Fuller who first attempted to conceal the cigarettes but then scuffled with the clerk. Fuller’s companion left the store before being apprehended. Fuller admitted at trial that he entered the store intending to steal cigarettes. The total value of the cigarettes was less than $100.

1. Fuller argues that a juror who admitted to being friends with the arresting officer should have been excused for cause. “Whether to strike a juror for cause lies within the sound discretion of the trial court. [Cits.]” Burley v. State, 190 Ga. App. 75, 79 (4) (378 SE2d 328) (1989).

In responding to questioning during voir dire whether the friendship would cause the juror to give more credence to the officer’s testimony, the juror in the instant case said “[i]t’s possible.” The trial court questioned the juror further, asking whether he could make a decision based on the facts and the law rather than on his knowledge of the witness. When the juror responded “[y]es, I’ll try to,” the court said that it would like a more definitive answer. The trial judge then rephrased the question, asking “can you lay aside any personal feelings you may have toward that witness and decide the case based upon the facts? . . . After you hear the facts of the case and after I tell you what law you must apply, [can you] make a decision as to whether the State has been successful in proving this Defendant is guilty beyond a reasonable doubt?” The juror answered “yes sir.” The court refused to excuse the juror for cause.

“When ruling on a potential juror’s qualifications, the trial court must make a factual determination based on all the circumstances known to the court, including, but not limited to, the juror’s own opinion of his impartiality.” Lively v. State, 262 Ga. 510, 511 (1) (421 SE2d 528) (1992). “Before a juror can be disqualified for cause, it must be shown that an opinion held by the potential juror is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court’s charge upon the evidence.” Johnson v. State, 262 Ga. 652, 653 (2) (424 SE2d 271) (1993); Jones v. State, 184 Ga. App. 4 (2) (360 SE2d 599) (1987). While the juror here was at first uncertain about what effect his friendship with the arresting officer would have on his ability to be impartial, he ultimately stated with certainty that he could render a decision based upon the law and the evidence. The trial court, therefore, did not abuse its discretion by refusing to excuse the juror for cause. Burley, supra; Jones, supra; Johnson, supra.

2. Fuller next maintains that the State improperly introduced his character into evidence when cross-examining him regarding his prior drug use.

At trial, the arresting officer testified that when Fuller was arrested, he was “acting a little uncoordinated . . . like he was under the influence of something. . . .” Fuller later testified, and on cross-examination the State asked him if he was under the influence of alcohol or another drug, specifically cocaine. When Fuller denied that he was under the influence of drugs and stated that he did not “mess with cocaine,” the State proceeded to impeach Fuller with a letter he sent to the district attorney’s office. In the letter, Fuller stated that he panicked in the grocery store when he saw the store clerk coming toward him because he was high on crack cocaine.

Fuller’s attorney did not object to the State’s question regarding whether Fuller was under the influence of drugs or alcohol at the time at the robbery. Nor did he object when the State introduced Fuller’s letter in order to impeach Fuller’s testimony. Because no timely objection was made to the questioning, there is nothing for this Court to review on appeal. “Reversal of the trial court is not authorized on the basis of an evidentiary ruling that the trial court was never called upon to make. Likewise, in the absence of a specific objection below, it was waived.” (Citations and punctuation omitted.) Terry v. State, 224 Ga. App. 157, 160 (2) (480 SE2d 193) (1996).

Furthermore, the State’s questioning as to Fuller’s alcohol or drug use on the day of the crime, even if it impermissibly placed his character into evidence, was relevant to Fuller’s state of mind and admissible as part of the res gestae. Carlton v. State, 224 Ga. App. 315 (2) (480 SE2d 336) (1997).

Finally, even if the State’s sole intention in questioning Fuller regarding his alcohol and drug use was to introduce evidence of Fuller’s bad character, it is highly probable that the error did not contribute to the jury’s verdict in light of the overwhelming evidence of Fuller’s guilt. See Carlton, supra at 317.

3. Finally, Fuller argues that he was improperly sentenced under former OCGA § 16-8-14 (b) (1) (C) and the recidivist statute, OCGA § 17-10-7. We agree.

OCGA § 16-8-14 (b) (1) provides that “[a] person convicted of the offense of theft by shoplifting, as provided in [OCGA § 16-8-14 (a)] when the property which was the subject of the theft is $100.00 or less in value, shall be punished as for a misdemeanor.” However, former § 16-8-14 (b) (1) (C) established that “[u]pon conviction of a fourth or subsequent such offense [pursuant to OCGA § 16-8-14 (b) (1)], the defendant commits a felony and shall be punished by imprisonment for not less than one nor more than ten years; and the first year of such sentence shall not be suspended, probated, deferred, or withheld.” (Emphasis supplied.)

The current version of OCGA § 16-8-14 (b) (1) (C), effective April 29, 1997, provides that “[ujpon conviction of a fourth or subsequent offense for shoplifting, where the prior convictions are either felonies or misdemeanors, or any combination of felonies and misdemeanors, as defined by this Code section, the defendant commits a felony and shall be punished by imprisonment for not less than one nor more than ten years. . . .” (Emphasis supplied.) Under the former version of OCGA § 16-8-14, subsection (b) (1) defined misdemeanor shoplifting while subsection (b) (2) defined when shoplifting constituted a felony. Subsection (b) (1) included subparts (A), (B), and (C) which explained the consequences of a second, third and fourth offense as defined in (b) (1). Accordingly, it was clear that under the old law, for a fourth misdemeanor shoplifting offense to be considered a felony, the prior offenses had to be as defined in subsection (b) (1) — that is misdemeanor shoplifting offenses.

The legislature amended OCGA § 16-8-14 (b) (1) (C) so that the four previous convictions for shoplifting could be any combination of felonies or misdemeanors. As this revision became effective April 29, 1997, and Fuller was indicted in June 1993 and convicted and sentenced on December 12, 1994, former OCGA § 16-8-14 (b) (1) (C) applied. The State introduced certified copies of three prior felony convictions against Fuller for theft by shoplifting. Under the former version of OCGA § 16-8-14 (b) (1) (C), these convictions could not be used to make the current misdemeanor offense a felony. Accordingly, the sentence must be vacated and the case remanded for resentencing consistent with this opinion.

Because Fuller was improperly convicted as a felon for the instant shoplifting offense, he was also improperly sentenced under the recidivist statute, OCGA § 17-10-7, which applies only when a person is convicted of a felony.

Decided January 16, 1998.

Hagler, Hyles, Adams & McKenna, Clark C. Adams, Jr., for appellant.

J. Gray Conger, District Attorney, Melvin E. Hyde, Jr., Assistant District Attorney, for appellee.

Judgment of conviction affirmed. Sentence vacated and case remanded for re-sentencing.

Birdsong, P. J, and Eldridge, J., concur.


text:
    A97A2062.
    PIAST v. THE STATE.
    (495 SE2d 875)
   Birdsong, Presiding Judge.

Wojciech G. Piast appeals his conviction for driving under the influence of alcohol in violation of OCGA § 40-6-391. He contends the trial court erred by granting the prosecution’s motion in limine to exclude argument or comment on the fact that there was no evidence of a chemical test or other evidence to show how much alcohol was in Piast’s system, and also erred by refusing to give a defense requested charge. Piast further contends the evidence was insufficient to sustain his conviction.

The evidence, construed most favorably to support the verdict, shows that Piast was stopped by a law enforcement officer after his automobile was observed traveling at a high rate of speed. During the traffic stop the officer detected the strong odor of alcohol coming from Piast and also noted that Piast’s speech was slightly slurred, his eyes were bloodshot and glassy, and his face was slightly flushed. Piast also admitted that he had a couple of drinks that evening. The officer also administered several field sobriety tests which Piast performed in such a manner that caused the officer to decide that Piast was under the influence of alcohol to the extent that he was a less safe driver.

Piast was then placed under arrest, read his implied consent rights, and asked to take a State-administered blood test. Piast refused to take the test. Piast was charged with driving under the influence of alcohol, speeding, and no proof of insurance.

Subsequently, Piast moved to suppress the evidence that he had refused to take the blood test, and based upon the evidence presented at the hearing, the trial court granted the motion and prohibited the prosecution from making reference to Piast’s refusal at trial. Prior to trial, however, the trial court also granted the prosecution’s motion to prevent Piast from making any mention of the lack of a State-administered alcohol test. After a jury trial, Piast was convicted of driving under the influence and speeding. This appeal followed. Held:

1. The trial court did not err by excluding comment on the inability of the prosecution to present evidence of an alcohol test. Piast’s reliance on Morgan v. State, 267 Ga. 203 (476 SE2d 747), is misplaced. In Morgan, our Supreme Court overruled the line of cases holding that a criminal defendant could not argue about the failure of the State to call witnesses who from matters properly in evidence could be expected to testify about material and relevant facts. That situation is not presented in this case. Here, at Piast’s request, the prosecution was prevented from presenting evidence concerning his refusal to take a blood test. It would be manifestly unfair to prevent the prosecution from presenting this evidence and at the same time comment upon the prosecution’s failure to do so. Moreover, the exclusion of this argument is but a logical extension of the trial court’s initial ruling excluding mention of the failure of Piast to take the blood test.

2. Piast contends the trial court erred by refusing to give his charge that after quoting OCGA § 40-6-391 stated, “In other words, the driver had been so affected by the intoxicant that it adversely affected his operation of the motor vehicle. This is the level of proof which is required for a conviction. It is not enough that the evidence merely shows that the defendant was affected to any extent whatsoever.” It is a fundamental rule in this state that jury instructions must be considered as a whole in determining whether there was error in the charge. Hambrick v. State, 256 Ga. 688 (353 SE2d 177). And, it is not error to fail to charge in the exact language of a requested charge if the principles of law embodied in the request are included in the charge given. Church’s Fried Chicken v. Lewis, 150 Ga. App. 154, 160 (256 SE2d 916). Although the matters contained in the requested charge were not necessarily objectionable, we find no error in the trial court’s refusal to charge because the entire charge given fully and adequately instructed the jury on the evidence necessary before Piast could be convicted of driving under the influence, and Piast has identified no portion of the requested charge which was not covered in the charge given.

3. Having reviewed the evidence, and in particular the arresting officer’s testimony, in the light most favorable to the jury’s determination, we conclude that a rational trier of fact could have found the defendant guilty of the crimes for which he was convicted beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Crawford v. State, 245 Ga. 89, 90 (263 SE2d 131).

Judgment affirmed.

Ruffin and Eldridge, JJ, concur.

Decided January 16, 1998.

Germano, Kimmey & Cheatwood, John L. Kimmey III, for appellant.

Joseph N. Walden III, Ralph T Bowden, Jr., Solicitor, W. Cliff Howard, Assistant Solicitor, for appellee.