author: Andrews, Chief Judge.

text:
    A98A0951.
    DAVIS v. KAISER FOUNDATION HEALTH PLAN OF GEORGIA, INC.
    (508 SE2d 431)
   Andrews, Chief Judge.

Mary Lou Rippstine Davis appeals from the trial court’s grant of summary judgment to Kaiser Foundation Health Pían of Georgia, Inc. (Kaiser) on its claim for reimbursement for medical payments made under Davis’s health care plan. Because we hold the parties were free to contract for reimbursement even when the insured was not completely compensated, we affirm.

The facts giving rise to this appeal are as follows. Davis was hit by a drunk driver in a pickup truck and suffered injuries requiring surgery to remove her spleen and to repair her foot and ankle. Davis sued the driver of the pickup truck and settled her claim for $15,000, the policy limits of his insurance. Davis had $100,000 under-insured motorist coverage with State Farm and recovered $85,000 from this policy. Kaiser then filed a complaint and sought to recover the $40,361.42 it had paid in medical expenses for Davis. The trial court granted Kaiser’s motion for summary judgment on its claim, and this appeal followed.

The issue in this case is the one left open by the decision in Duncan v. Integon Gen. Ins. Corp., 267 Ga. 646 (482 SE2d 325) (1997). In Duncan, the Court held that the complete compensation rule was the law in Georgia when the insurance policy at issue contained no provision to the contrary. Id. at 648. The Court did not decide the issue of whether public policy prevented enforcing policy provisions which expressly modified the complete compensation rule. Id.

After Duncan, the General Assembly enacted OCGA § 33-24-56.1, which codifies the complete compensation rule and provides that no policy or contract provisions for reimbursement in conflict with this Code section may be enforced by a benefit provider. OCGA § 33-24-56.1 (j)- But, this statute did not become effective until July 1, 1997, and does not apply to this case.

Therefore, we must determine whether the complete compensation rule applies when there is a provision in the policy to the contrary. The provision in question reads as follows: “Even if the total amount you collect is less than your actual losses from the accident, you must pay us. However, you are not required to pay us more than the total amount you collect from the insurer and/or third party. If you make a reasonable effort but collect nothing, you owe us nothing.”

It is general contract law that parties are free to contract about any subject matter and on any terms unless prohibited by statute or public policy, or when injury to the public interest clearly appears. Century 21 &c. v. Cason, 220 Ga. App. 355, 356 (469 SE2d 458) (1996). Here, the contract provision is not prohibited by statute, and no injury to the public interest is clearly apparent. As to whether the provision is prohibited by public policy, basic criteria have been set down for the determination of whether a contract is void as against public policy as follows: “A contract cannot be said to be contrary to public policy .unless the General Assembly has declared it to be so, or unless the consideration of the contract is contrary to good morals and contrary to law, or unless the contract is entered into for the purpose of effecting an illegal or Immoral agreement or doing something which is in violation of law.” (Citations and punctuation omitted.) Dept. of Transp. v. Brooks, 254 Ga. 303, 312 (328 SE2d 705) (1985). Here, there is nothing to show the consideration for the contract was contrary to good morals or to the law or that it was for the purpose of effecting an illegal or immoral agreement. Indeed, we must presume that freedom to contract away the complete compensation rule was the law because, under the rules of statutory construction, we presume that at the time the legislature enacted OCGA § 33-24-56.1 (j), it was aware of existing law and the decision in Duncan and intended by its enactment to make some change in the existing law. Balest v. Simmons, 201 Ga. App. 605, 607 (411 SE2d 576) (1991); C. W. Matthews &c. Co. v. Capital Ford Truck Sales, 149 Ga. App. 354, 356 (254 SE2d 426) (1979). Additionally, we note that “the delicate and undefined power of courts to declare a contract void as contravening public policy should be exercised with great caution, and only in cases free from substantial doubt.” Foster v. Allen, 201 Ga. 348, 349, hn. 3 (40 SE2d 57) (1946).

In determining whether public policy renders the provision unenforceable, Justice Sears’s strong dissent in Duncan is also helpful. “Although I understand the nature of equitable subrogation, as well as the considerations supporting the complete compensation rule, under the standards for determining public policy discussed above, I cannot conclude that these equitable considerations constitute a public policy of this state so that an insurer and an insured can never enter into a clear agreement allocating their risks differently from those considerations.” Duncan, supra at 652. The majority, as noted above, did not address the issue of whether or not parties could specifically contract so as to modify the complete compensation rule and, thus, did not disagree with this statement by the dissent. In light of this, we therefore adopt the excellent analysis set out in Justice Sears’s dissent in Duncan and hold that public policy does not prohibit the enforcement of a policy provision specifically modifying the complete compensation rule.

This conclusion accords with our recent decision in State Farm &c. Ins. Co. v. Walker, 234 Ga. App. 101 (505 SE2d 828) (1998), in which we upheld the enforceability of an exclusion in an insurance policy providing: “If the injured person has been paid damages for the bodily injury by or on behalf of the liable party in an amount . . . equal to or greater than the total reasonable and necessary medical expenses incurred by the injured person, we owe nothing under this coverage.” Walker, supra at 102. Although the issue in Walker is slightly different from the issue in this case because State Farm did not seek reimbursement or subrogation but instead relied on a coverage exclusion, it is similar in that we rejected the argument that the exclusion was against public policy, finding no reason to interfere with the parties’ right to exclude coverage by express agreement. Id.

Decided October 28, 1998

Larry R. Wight, Patrick J. Gibbs, for appellant.

Dennis, Corry, Porter & Gray, Grant B. Smith, John D. Dixon, Sharon W. Ware & Associates, Thomas C. MacDiarmid, for appellee.

Similarly, for the reasons outlined above and in the dissent in Duncan, we find no reason to interfere with the right of these parties to contract for reimbursement of medical benefits even if the insured has not been completely compensated. Therefore, we hold the trial court did not err in granting Kaiser’s motion for summary judgment.

Judgment affirmed.

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


source: Caselaw Access Project

author: Judge Harold R. Banke.

license: Public Domain

text:
    A98A1709.
    MICHAEL v. THE STATE.
    (508 SE2d 426)
   Judge Harold R. Banke.

Joseph Michael was convicted of possession of marijuana with intent to distribute. He enumerates seven errors on appeal.

This case arose after a Federal Express driver notified police that a damaged package due for delivery appeared to contain marijuana. After verifying its contents, officers left the package outside the residence to which it was addressed and set up video surveillance.

Eventually, Laura Mattox drove up with her young child and picked up the package. When the officers intercepted her, she admitted that two similar boxes were in the back of her truck. She explained that she received $250 for each box she delivered to “Joe,” who ran an herbal store in Atlanta.

At the officers’ request, Mattox set up a meeting with Joe at a local car dealership by complaining of car trouble and arranging for him to meet her there and retrieve the packages while she left her car for repairs. The officers then videotaped Michael as he arrived, looked around suspiciously, and asked Mattox if she had been followed. After Michael placed the boxes in his car, Mattox mentioned getting paid when she got home, and he nodded his head and later said yes. When Michael was arrested shortly thereafter, officers discovered $870 on his person. Held:

1. The evidence was sufficient to support the verdict. Assuming solely for the sake of argument that Mattox was an accomplice, notwithstanding the arresting officer’s opinion that she was a mere pawn, the record provides adequate corroboration of her testimony. Parkerson v. State, 265 Ga. 438 (2) (457 SE2d 667) (1995) (even slight evidence of corroboration connecting a defendant to a crime satisfies the requisites of OCGA § 24-4-8 and that may be entirely circumstantial).

The videotape showed that Michael was suspicious when he arrived at the dealership and inquired whether Mattox had been followed. Both Mattox and the arresting officer testified that when Mattox mentioned payment upon arrival at her house, Michael agreed. Further, funds sufficient to pay $250 for each of the three packages were seized from Michael’s person. This evidence, viewed in the light most favorable to the verdict, was sufficient to corroborate Mattox’s testimony. See Sharpe v. State, 213 Ga. App. 280, 282 (1) (444 SE2d 600) (1994). Combined, they raise a jury question on whether Michael possessed the marijuana with intent to distribute.

2. The trial court did not err in denying Michael’s motion for continuance to permit defense counsel to investigate evidence related to the packages sent to Mattox. Michael argues that he needed more time to obtain documentary evidence offered for impeachment subpoenaed from Federal Express showing that Michael had not previously sent Mattox packages. McTaggart v. State, 225 Ga. App. 359, 362 (1) (483 SE2d 898) (1997) (satisfaction of each statutory ground is necessary to justify continuance).

The record shows that Michael sent previous packages via other delivery services and to Mattox’s relatives at other addresses, facts which eliminate any reasonable probability that the admission of the evidence at issue would have affected the verdict. Dowis v. State, 232 Ga. App. 111, 113 (2) (a) (501 SE2d 275) (1998). We decline to reach the remaining arguments asserted in this enumeration. Guest v. State, 229 Ga. App. 627, 628 (1) (494 SE2d 523) (1997) (appellants may not enlarge their enumerations through their briefs).

3. Michael argues that the trial court erred by admitting similar transaction evidence without complying with Uniform Superior Court Rule 31.3. We question whether the evidence at issue, Mattox’s comment that she had picked up boxes for Michael four or five times before, could properly be characterized as similar transaction evidence. USCR 31.3, by its nature, applies only to “ ‘other criminal acts by the defendant,’ ” and no evidence of the other boxes’ contents was introduced. King v. State, 230 Ga. App. 301, 302 (1) (496 SE2d 312) (1998). In any event, because Michael failed to object to the admission of this testimony, the issue was waived. Kim v. State, 230 Ga. App. 342, 343, n. 1 (496 SE2d 272) (1998).

4. Michael maintains that the State failed to reveal the deal Mattox received for testifying. The record shows that the arresting officer believed Mattox’s claim of ignorance about the package’s contents. He did not press charges. He denied threatening to prosecute if she did not cooperate or offering her anything for her assistance. The State also specifically denied the existence of any deal.

Without question, in response to the appropriate defense filings, the State must reveal any agreement,.even an informal one, concerning criminal charges against that witness. Owen v. State, 265 Ga. 67, 68 (2) (453 SE2d 728) (1995). However, because the record reveals no prosecutorial misconduct or any false testimony regarding a deal involving Mattox, Michael’s reliance on Giglio v. United States, 405 U. S. 150 (92 SC 763, 31 LE2d 104) (1972) is misplaced. Anderson v. State, 193 Ga. App. 540, 541 (2) (388 SE2d 351) (1989). Moreover, the alleged “deal” developed in this record lacked sufficient specificity to support a finding that it offered even marginal benefit to Mattox. See Patillo v. State, 258 Ga. 255, 260 (4) (c) (368 SE2d 493) (1988). We also observe that Michael’s cross-examination of Mattox did not delve into the question of a deal. Compare Lariscey v. State, 254 Ga. 241, 243 (4) (328 SE2d 213) (1985).

5. The trial court did not err in denying Michael’s motion for new trial based on newly discovered evidence that Federal Express found no record of transporting packages to Mattox or her various aliases at the addresses she specified at trial. The standard for granting a new trial based on newly discovered evidence is the six-criteria test set forth in Timberlake v. State, 246 Ga. 488, 491 (1) (271 SE2d 792) (1980). Riggins v. State, 230 Ga. App. 757, 758 (2) (498 SE2d 117) (1998). All six criteria must be met to warrant a new trial. Id. at 758-759 (2).

Here, as noted, the record shows that Michael utilized delivery services other than just Federal Express. This fact mandates a finding that the evidence was not so material that it would probably have produced a different result. Young v. State, 269 Ga. 490, 492 (2), n. 5 (500 SE2d 583) (1998). Further, apparently the evidence was offered solely to impeach Mattox’s statement that she picked up several other packages for Michael. Id. Michael’s failure to satisfy the Timberlake criteria precludes a finding that the trial court abused its discretion in denying the motion for new trial. Riggins, 230 Ga. App. at 759 (2).

6. Michael argues that the admission of a videotape of the transaction between him and Mattox without the proper foundation requires reversal. Michael’s failure to timely assert this objection and indicate the missing foundational elements waived the issue. Tolver v. State, 269 Ga. 530, 531-532 (2) (500 SE2d 563) (1998).

7. Michael maintains his trial counsel was ineffective in seven specific ways. We disagree.

To establish ineffectiveness, a defendant must prove that trial counsel’s performance was deficient and but for the deficiency a reasonable probability existed that the result of the trial would have been different. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Brown v. State, 257 Ga. 277, 278 (2) (357 SE2d 590) (1987). An error by counsel, even if professionally unreasonable, does not warrant reversal of a criminal conviction if it had no effect on the judgment. Goodwin v. Cruz-Padillo, 265 Ga. 614, 615 (458 SE2d 623) (1995). Further, we need not inquire into counsel’s alleged deficiency, absent a showing of prejudice. Trammel v. State, 265 Ga. 156 (1) (454 SE2d 501) (1995). Review of counsel’s performance must be highly deferential. Rogers v. State, 195 Ga. App. 446, 448 (2) (394 SE2d 116) (1990).

(a) Michael asserts that trial counsel’s failure to interview Mattox prior to trial was ineffective. However, the record shows that trial counsel questioned Mattox during related forfeiture proceedings. Michael’s failure to demonstrate prejudice from the alleged deficiency is fatal to this argument. Goodwin, 265 Ga. at 615.

(b) Michael maintains that trial counsel’s failure to assert a lack of foundation objection to the admission of the videotape of the transaction constitutes ineffectiveness. The fact that the State laid an adequate foundation for the videotape’s admission undermines this argument. See Wingfield v. State, 226 Ga. App. 448, 449 (2) (486 SE2d 676) (1997). Because a witness was available to testify about the tape’s accuracy State v. Berky, 214 Ga. App. 174, 176 (447 SE2d 147) (1994), vacated, 266 Ga. 28 (463 SE2d 891) (1995), is inapplicable.

(c) Michael failed to show a reasonable probability that the result of the trial would have been different had counsel successfully excluded Mattox’s statement that she had picked up boxes for Michael four or five times before, particularly in view of the substantial evidence showing guilt and the dearth of evidence showing that the other boxes contained contraband. See Goodwin, 265 Ga. at 615.

(d) This same reasoning applies to Michael’s contention that trial counsel was ineffective for failing to object to the arresting officer’s perception that Mattox knew nothing about the marijuana. See Yi v. State, 267 Ga. 171, 172-173 (2) (475 SE2d 623) (1996).

(e) The record refutes Michael’s contention that trial counsel’s failure to lay a foundation for striking two jurors constituted ineffectiveness. The record shows that trial counsel objected that one juror’s ties to law enforcement and the other’s to Federal Express rendered them incapable of impartiality.

(f) Michael claims trial counsel was ineffective in failing to properly present character evidence. Because the record shows that she did present favorable evidence of his character and Michael failed to specify how counsel erred or what evidence she failed to elicit, prejudice cannot be established. Id.

Decided October 28, 1998.

Hector R. Cora, for appellant.

Daniel J. Porter, District Attorney, Donald P. Geary, Assistant District Attorney, for appellee.

(g) Michael maintains that trial counsel’s decision not to present rebuttal evidence concerning threats Michael made to Mattox constituted ineffectiveness. However, his failure to specify the nature of the potential rebuttal evidence which could have had a reasonable probability of affecting the outcome of his case precludes a showing of prejudice. Id.

Judgment affirmed.

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


text:
    A98A1728.
    MARTIN v. CITY OF FORT VALLEY.
    (508 SE2d 244)
   Judge Harold R. Banke.

After allegedly experiencing continued flood damage to his property, Mack M. Martin asserted claims for nuisance, trespass, bad faith, and inverse condemnation against the City of Fort Valley (the “City”). Enumerating three errors, Martin appeals the summary judgment awarded against him.

Martin’s property faces U. S. Highway 341 South and Lawn Street. To assist Martin with runoff problems caused by the resurfacing of U. S. Highway 341, under the supervision of the City’s superintendent of public utilities, City employees constructed and installed a storm sewer along Lawn Street. In so doing, they attached pipes to the existing drainage system built by the Department of Transportation.

Martin asserted that his residence and commercial garage sustained significant damage from the surface water runoff that discharged from that storm sewer onto his property. According to Martin, the storm sewer installed by the City discharged on the edge of his property and opened toward his home. Martin alleged that the flood damage had caused severe damage to his home including its carpet, drywall, floors, doors, and walls. As some proof that the City had assumed some liability for the flood damage, Martin testified that the City reimbursed him for part of the expense for repairing the doors of his shop.

Robert E. DeLoach, Jr., a professional civil engineer, conducted a personal inspection of Martin’s property. DeLoach determined that the relief storm sewer had been “poorly built” by the City. DeLoach specifically criticized the vertical placement of the invert of the storm sewer as it exited from the DOT junction box and the inadequate relief capacity of the storm sewer. DeLoach concluded that “[t]he manmade [sic] drainage of the roadway storm water onto the Martin property appears to have been and continues to be the cause of water damage to the Martin property and improvements.”

The trial court held that the City owed no duty to Martin for maintaining U. S. 341, a state highway, because the City had never entered a specific agreement to do so. OCGA § 32-4-93 (b). The trial court found that the City exercised ordinary care in installing the storm sewer and granted the City judgment as a matter of law. Held:

1. Martin contends that the trial court overlooked the legal consequences of the City’s actions in constructing a drainage system that affected his property. We agree.

Municipal responsibility for creating or maintaining a nuisance which constitutes a danger to life and health or a taking of property is an established historic principle in Georgia. City of Thomasville v. Shank, 263 Ga. 624-625 (1) (437 SE2d 306) (1993). A nuisance is “anything that causes hurt, inconvenience, or damage to another,” regardless of whether the action is otherwise lawful. OCGA § 41-1-1. Further, “where a municipality negligently constructs or undertakes to maintain a sewer or drainage system which causes the repeated flooding of property, a continuing abatable nuisance is established, for which the municipality is liable.” (Emphasis in original.) Hibbs v. City of Riverdale, 267 Ga. 337, 338 (478 SE2d 121) (1996). Accord Thrasher v. City of Atlanta, 178 Ga. 514, 518 (3) (173 SE 817) (1934).

It is undisputed that the City built a storm sewer and installed some plastic pipe to attempt to alleviate the water runoff problem apparently created by a state highway. According to the uncontroverted testimony of Martin’s expert, this storm sewer erected by the City was defective in several specified ways. Notwithstanding the City’s contention to the contrary, Martin’s expert attested that the man-made drainage system, not the highway or its maintenance, caused damage to Martin’s property. See Stelts v. Epperson, 201 Ga. App. 405, 407 (411 SE2d 281) (1991) (even a gratuitous undertaking must be non-negligently performed). Whether the City’s activities worsened or failed to alleviate the pre-existing runoff problems cannot be determined on the record before us. Therefore, in light of the disputed questions of material fact as to both the existence of an “abatable nuisance” and the cause thereof, the trial court erred in taking these issues from the jury. Shank, 263 Ga. at 625-626 (2). Similarly, a jury must decide whether the City’s actions constituted a taking of property or an “unlawful trespass.” See Fulton County v. Wheaton, 252 Ga. 49, 50 (1) (310 SE2d 910) (1984), overruled on other grounds, DeKalb County v. Orwig, 261 Ga. 137, 138 (1) (402 SE2d 513) (1991). See Powell v. Ledbetter Bros., 251 Ga. 649 (307 SE2d 663) (1983) (government action causing repeated flooding may constitute an unlawful trespass), overruled on other grounds, David Allen Co. v. Benton, 260 Ga. 557, 558 (398 SE2d 191) (1990).

Decided October 28, 1998.

Collins & Aromatorio, Lawrence C. Collins, for appellant.

Thurbert E. Baker, Attorney General, Walker, Hulbert, Gray & Byrd, Charles W. Byrd, for appellee.

2. In light of the above holding, we need not determine whether Lawn Street or U. S. Highway 341 comprised a part of a “Street Drainage System” of the City.

Judgment reversed.

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


text:
    A98A1741.
    HELTON v. THE STATE.
    (508 SE2d 697)
   Judge Harold R. Banke.

Gregory Lynn Helton was convicted of entering an automobile. He enumerates two errors on appeal.

This case arose after the victim, a restaurateur, left his Maxima running in front of his establishment and went inside to lock up for the evening. Moments later, he saw Helton enter the Maxima and rummage through his belongings. The victim rushed out and confronted Helton, who got out immediately and claimed he was looking for a cab. After the victim called the police, Helton was arrested nearby During the ensuing investigation, the arresting officer learned of thefts from several other cars in the area which had been broken into that evening. Held:

1. Helton claims the State improperly placed his character into evidence. The exchange at issue occurred during the State’s cross-examination of Helton, after he testified to a prior anxiety attack. The State asked, “Is that why you weren’t driving, because of your anxiety?” Helton responded, “Yes, sir. I live with fear.” The State immediately responded, “Of going to prison?” Helton answered, “No, sir. If that is to be the outcome of this —.” At that point, defense counsel objected. During argument on the objection, the State indicated that it had intended to impeach Helton’s statement that anxiety kept him from driving, when his habitual violator status was the reason he could not drive. The court prohibited the State from inquiring about Helton’s prior arrests.

In so doing, the trial court prevented the admission of the bad character evidence. Thus, as it stánds, the record contains no implication of any prior crimes or other actions sullying Helton’s character. Hall v. State, 177 Ga. App. 464, 465 (339 SE2d 658) (1986). This fact is fatal to Helton’s argument and precludes a showing of harm. See Parker v. State, 226 Ga. App. 462, 464 (5) (486 SE2d 687) (1997). Helton’s failure to request a curative instruction waives that issue. Simmons v. State, 266 Ga. 223, 226 (2) (c) (466 SE2d 205) (1996); Underwood v. State, 218 Ga. App. 530, 534 (3) (462 SE2d 434) (1995).

Decided October 28, 1998.

W. Keith Barber, for appellant.

Benjamin F. Smith, Jr., District Attorney, Charles M. Norman, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

2. Helton maintains the trial court erred in denying his motion for new trial. Assuming Helton is challenging the sufficiency of the evidence, we find the evidence of guilt, viewed in the light most favorable to the verdict, sufficient to sustain the conviction. Court of Appeals Rule 27 (a) (3) (requiring argument and citation of authorities for each issue presented in the brief); see Williams v. State, 228 Ga. App. 622 (1) (492 SE2d 290) (1997). The record shows that Helton entered the victim’s car, opened the glove compartment, and was examining one of the victim’s books when he was discovered. Heflin v. State, 183 Ga. App. 149, 150 (2) (358 SE2d 298) (1987).

Judgment affirmed.

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


text:
    A98A0957.
    In the Interest of C. G., a child.
    (508 SE2d 246)
   Judge Harold R. Banke.

M. G., the natural mother of three-year-old C. G., appeals a juvenile court order terminating her parental rights. She contends the trial court erred by finding the cause of C. G.’s deprivation was likely to continue or not be remedied.

The juvenile court based its decision to terminate M. G.’s parental rights primarily upon its findings that she was unable to care for the child because she had a mental disability which rendered her unable to function as an independent adult. The juvenile court concluded M. G. could not and would not meet the goals of the reunification plan and she would never function as an independent adult or care for her child or herself because of a mental disability that rendered her unable to function with awareness and ability. The juvenile court found that M. G. had physically, mentally, and emotionally neglected C. G., had no meaningful contact with him, and had not complied with the plan for reunification with C. G. The court concluded that M. G.’s mental disability rendered her unable to function as an adult on a day-to-day basis. Held:

The standard of review is whether, after viewing the evidence in a light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights should have been lost. In the Interest of J. H., 210 Ga. App. 255, 258 (1) (435 SE2d 753) (1993). This Court defers to the trial court’s factfinding and will affirm unless the appellate standard is not met. In the Interest of R. N., 224 Ga. App. 202 (480 SE2d 243) (1997). Because the termination of parental rights has a final, ultimate, and significant result, that judgment “must conclusively show compliance with the statutory criteria prescribed as a condition precedent. . . .” McCary v. Dept. of Human Resources, 151 Ga. App. 181, 182 (2) (259 SE2d 181) (1979). Here, the record does not contain the requisite finding.

Although the failure to comply with the reunification plan and to contact and support C. G. otherwise might support the termination of parental rights, the testimony and the juvenile court’s order demonstrate that the crux of this case is the mother’s mental condition and that the other factors arose from that condition. Therefore, as there is no dispute that M. G. has some sort of mental disability, at issue is whether the State established by clear and convincing evidence that M. G.’s mental deficiency, the cause of C. G.’s deprivation, was likely to continue or not be remedied. See OCGA § 15-11-81 (b) (4) (A) (iii).

Notwithstanding the juvenile court’s finding that M. G.’s mental disorder precluded her from caring for her child or herself, no diagnosis or prognosis for her mental disorder appears in the record. The testimony showed M. G. received Supplemental Security Income («SSI”) benefits from Social Security for her mental disorder. M. G. testified that she lived in a trailer with her sister, who received the SSI check as her representative, and that her own mother, who lived nearby, acted as the responsible adult in her life. M. G.’s testimony showed some confusion and disorientation about the details of her life. Notwithstanding the evidence of M. G.’s dependency on others, no evidence was introduced which proved to a high degree of probability that M. G.’s mental disability necessarily would continue or would not be remedied. The State failed to introduce evidence showing the criteria for awarding SSI benefits, and it introduced no evidence to show that SSI benefits were awarded only for permanent or long lasting disabilities.

The fact that the record contains no evidence identifying the nature of M. G.’s mental condition or its expected duration totally undermines the State’s case. White Missionary Baptist Church v. Trustees of First Baptist Church &c., 268 Ga. 668, 669 (1) (492 SE2d 661) (1997) (hearsay has no evidentiary value). The State’s failure to offer any medical or psychological testimony or reports notwithstanding OCGA § 15-11-87’s authorization of physical or mental evaluations of parents involved in these proceedings precludes satisfaction of the requisite clear and convincing evidence standard. OCGA § 15-11-81 (b) (4) (A) (iii). Clarke v. Cotton, 263 Ga. 861 (440 SE2d 165) (1994). Because continuation of the disability is a required finding under OCGA § 15-11-81 (b) (4) (A) (iii), the termination of the mother’s parental rights regarding C. G. cannot stand under the evidence in this record.

Decided October 29, 1998.

Thomas J. Killeen, for appellant.

Thurbert E. Baker, Attorney General, Shalen A. Sgrosso, Stephanie M. Baldauff, Assistant Attorneys General, Garcia & Powell, Tony D. Coy, Nadine D. Bailey, for appellee.

This ruling, however, does not mean that the mother is entitled to regain custody of C. G. because the record supports the juvenile court’s conclusion that M. G. is currently unable to provide proper care and support for her son. Upon remand, if the State introduces clear and convincing evidence showing that such deprivation is likely to continue to the detriment of the child, then the juvenile court would be authorized to terminate the parental rights of M. G. In the Interest of K. J., 226 Ga. App. 303, 309 (2) (486 SE2d 899) (1997); In the Interest of R. A., 226 Ga. App. 18, 20 (486 SE2d 363) (1997); In the Interest of A. S. M., 214 Ga. App. 668, 672 (1) (448 SE2d 703) (1994).

Judgment reversed and case remanded with direction.

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


author: Ruffin, Judge.

text:
    A98A1342.
    BRADSHAW et al. v. BYRD.
    (508 SE2d 433)
   Ruffin, Judge.

Lettie Mae Bradshaw and William M. Bradshaw sued Betty Anderson Byrd for injuries they allegedly sustained in an automobile collision. A jury returned a verdict in favor of Byrd, and the Bradshaws appeal, asserting that there was insufficient evidence to support the verdict and that the trial court erred in denying their motion for a new trial because they had to use a peremptory strike to remove a disqualified juror. We affirm.

1. In their first three enumerations of error, the Bradshaws attack the sufficiency of the evidence upon which the verdict was based. However, they present no argument or citation of authority to support these enumerations. Consequently, they are deemed abandoned pursuant to Court of Appeals Rule 27 (c). See George v. D’Angelo, 171 Ga. App. 433, 434 (4) (171 SE2d 874) (1984); MacDonald v. MacDonald, 156 Ga. App. 565, 569 (2) (275 SE2d 142) (1980). Moreover, even if the issues were preserved, the record contains no transcript of the trial proceedings from which we could assess the sufficiency of the evidence presented. McClaskey v. Jiffy Lube, 197 Ga. App. 537-538 (398 SE2d 825) (1990).

2. The Bradshaws also contend they are entitled to a new trial because they were forced to use a peremptory strike to remove a juror who should have been disqualified. This argument is without merit.

During voir dire, the Bradshaws’ attorney asked the court to qualify the jury in regard to Byrd’s insurer, State Auto Insurance Company (“State Auto”). Both he and Byrd’s attorney were not sure whether the company was a mutual one or not. Specifically, Byrd’s attorney stated “I don’t think it’s a mutual company.” Thereafter, the trial court qualified the jury as to officers, directors, employees, or stockholders of State Auto, but did not qualify them as to policyholders. One juror volunteered that he was a policyholder of State Auto, but the Bradshaws neither questioned him on that matter nor requested that he be struck for cause on this ground. Instead, the Bradshaws used one of their peremptory strikes against this juror. A jury was subsequently impaneled, and the remainder of the panel was released from service.

Prior to the start of trial, the Bradshaws learned from defense counsel that State Auto in fact was both a stock and mutual company. They asked the court either to continue the trial or allow them to select a new jury, arguing that they had been forced to use a peremptory strike to remove the State Auto policyholder and that they did not know who else on the panel may have been a policyholder as well. The trial court denied this request and subsequently denied their motion for a new trial because they “did not timely object nor exercise due diligence to determine the existence of the disqualification.” We agree with the trial court’s decision.

“ ‘When parties are furnished with a list of the jury, it is their duty, if they know that any of the jurors are disqualified, to call attention to the same, or the disqualification will be held to have been waived. If they have reasonable grounds to suspect that any of the jurors are disqualified, it is their duty to call attention to the fact, so that due inquiry may be made of the panel.’ ” Jennings v. Autry, 94 Ga. App. 344, 345 (7) (94 SE2d 629) (1956).

Decided October 29, 1998.

Fowler & Wills, Samuel A. Fowler, Jr., for appellants.

It is clear from the record that counsel for both parties were unsure whether State Auto was a mutual or stock company at the time they asked the trial court to qualify the jury. The Bradshaws could have discovered this information prior to trial, asked the court for a continuance to ascertain whether State Auto was a stock or mutual company, or asked to have the jury qualified as to policyholders of the company. See Weatherbee v. Hutcheson, 114 Ga. App. 761, 765 (1) (a) (152 SE2d 715) (1966) (“It has been held not error to make the inquiry as to policyholders of any company when it does not appear whether or not it is a mutual [company].”). They did not do so, but proceeded on the assumption that State Auto was not a mutual company. Given that counsel for Byrd could not definitively state that State Auto was a mutual or stock company, and given that the juror at issue stated that he was a policyholder of State Auto, counsel for the Bradshaws had all the information he needed about this juror’s relationship to State Auto and elected not to move to strike him for cause. Under these circumstances, the Bradshaws’ attorney did not use due diligence to determine the proper status of the company for purposes of qualifying the jury in a timely manner. Compare Patterson v. Lauderback, 211 Ga. App. 891, 896 (3) (440 SE2d 673) (1994) . Moreover, because the Bradshaws did not ask the court to excuse the juror for cause due to his status as a State Auto policyholder, but instead chose to exercise a peremptory strike, they have waived any right to assert that the juror should have been excused for cause. Hughes v. State, 217 Ga. App. 766, 769 (4) (458 SE2d 911) (1995). See also Green v. Wilcox, 206 Ga. App. 192, 193 (424 SE2d 801) (1992).

The Bradshaws waived their right to have any jurors disqualified on the basis they were policyholders of State Auto because they did not request such qualification or object to the court’s qualification prior to striking the jury. See Jennings, supra. Accordingly, the trial court did not abuse its discretion in denying the Bradshaws’ motion for a new trial.

Judgment affirmed.

Pope, P. J., and Beasley, J., concur.

Fulcher, Hagler, Reed, Hanks & Harper, David P. Dekle, for appellee.

       The trial court found, and counsel for the Bradshaws agreed, that defense counsel did not intentionally withhold this information during voir dire.


text:
    A98A1410.
    RICHARDSON v. CHESKY.
    (508 SE2d 441)
   Andrews, Chief Judge.

Harry Richardson appeals from denial of his motion for new trial after a jury returned a verdict in his and his wife’s favor in their automobile accident case. Richardson seeks a new trial on the issue of damages, contending the trial court improperly charged the jury and that denial of his motion for new trial was error.

1. Viewed in favor of the jury’s verdict, the evidence was that, on December 23, 1995, Mr. Richardson was driving his wife to lunch after church. He was headed west on Derenne Avenue in Savannah when he stopped at the red light at its intersection with Habersham Street. Derenne Avenue is a four-lane street with added turn lanes at this intersection. Both streets are straight and level, with no obstructions to sight near the intersection.

Richardson was going to turn left onto Habersham, and his was the second car in the left turn lane. Mrs. Richardson noticed that the turn arrow had turned green and told Mr. Richardson. As Mr. Richardson testified, “I just started off the car and turned to start turning the corner. . . . As I got into my turn and I come to the light I was looking to my left to see where I was going. . . . These are cars stopped [facing him on Derenne in the inside lane], so I figured everybody had come to a stop. And I didn’t really look at the truck. ... I never saw the pickup truck.” Mr. Richardson had made it across the turn lane and the inside lane before he was struck in the curb lane by Chesky.

Coming from the east, Chesky’s pickup was in the curb lane heading toward the intersection when he saw a car two- or three-car lengths ahead of him go through the yellow light, and he thought he could also make the intersection before the light turned red. Realizing he could not, Chesky hit his brakes, which did not function properly, and began skidding before reaching the crosswalk of the intersection. His truck left 18 feet of skid marks before striking the Richardson car in the passenger side door. Chesky said he saw the Richardson car in front of him as his truck skidded through the crosswalk with its brakes locked and there was nothing else he could do at that point to avoid the collision.

Mrs. Richardson suffered cuts, contusions, and broken ribs and, with medical bills of over $9,000, was awarded $34,604.45 in damages. Mr. Richardson was taken to the hospital with a head laceration and, at that time, made no complaint of any injury to his right shoulder. He was later operated on for a rotator cuff injury which he claimed was attributable to the accident. In addition to the emergency room physician’s testimony that Mr. Richardson made no complaint of his shoulder the day of the wreck, Mr. Richardson’s orthopedist Dr. Lorenzen testified that an injury such as that suffered by Mr. Richardson, who was in his 60s, could occur from wear and tear. Mr. Richardson’s medical bills from the emergency room visit were around $2,000 and for surgical correction of his rotator cuff approximately $11,000. He was awarded $6,904.80.

2. Richardson complains in his enumerations 2, 3, and 5 of the court’s instructing the jury on the issues of his negligence, comparative negligence, and avoidance of consequences, contending there was no evidence of any negligence of Mr. Richardson.

In addition to the evidence set out above, Mr. Richardson acknowledged that, in making a left-hand turn across two westbound lanes, it would be a safe and reasonable driving practice to look for oncoming cars. Further, he testified that it was possible he could have stopped suddenly and avoided Chesky if he had looked toward the oncoming traffic and seen him approaching.

“It does not follow from the fact that a driver has the right-of-way at an intersection that he is thereby entitled ‘to drive blindly or recklessly across (the) intersection, . . . without regard to the conditions and consequences.’ [Cits.] ‘(E)ven if the (other) driver ... is guilty of negligence per se or has otherwise failed to exercise ordinary care in approaching the intersection, this will not relieve the driver having the right-of-way of his own legal duty to exercise ordinary care under the facts and circumstances of the situation. It is his duty to exercise ordinary care, to remain alert in observing the vehicles approaching the crossing, and to exercise ordinary care ... to avoid a collision, after he sees or by ordinary diligence could have seen that one is threatened or imminent.’ Currey v. Claxton, 123 Ga. App. 681, 682 (1) (182 SE2d 136) (1971). (Emphasis supplied.)” Stroud v. Woodruff, 183 Ga. App. 628, 629 (1) (359 SE2d 680) (1987). See also Davis v. Hammock, 123 Ga. App. 33, 35 (2) (179 SE2d 283) (1970).

There was sufficient evidence to merit the charges given. Norman v. Williams, 220 Ga. App. 367, 370-371 (4), (5) (469 SE2d 366) (1996); Whatley v. Henry, 65 Ga. App. 668, 673 (6) (16 SE2d 214) (1941).

3. Mr. Richardson also complains of the court’s charge tracking OCGA § 40-6-123, contending that, because he had a green turn arrow, that section was inapplicable.

Decided October 29, 1998.

David Roberson, for appellant.

Beckmann & Pinson, Joseph H. Barrow, FitzGerald & Schultz, John K. FitzGerald, for appellee.

That section provides, in subsection (a) that “[n]o person shall turn a vehicle at an intersection unless the vehicle is in proper position upon the roadway as required in Code Section 40-6-120 ... or otherwise turn a vehicle from a direct course . . . unless and until such movement can be made with reasonable safety. No person shall so turn any vehicle without giving an appropriate and timely signal. . . .”

OCGA § 40-6-120 (a) provides that in making a left turn a driver should use the extreme left turn lane available to traffic moving in his direction, and subsection (b) provides that officials may place traffic control signals at intersections and “thereby require and direct that a different course from that specified in this Code section be traveled by turning vehicles, and when such devices are so placed, no driver of a vehicle shall turn a vehicle other than as directed and required by such devices.”

Distilled to its essence, Richardson’s argument is that, when one is turning as directed by a traffic control device, he need not comply with any other rules of the road, such as signaling or maintaining a diligent lookout. We decline to accept such an interpretation of these two statutes. There was no error. See Crouch v. Nicholson, 116 Ga. App. 12, 15 (3) (156 SE2d 384) (1967).

Judgment affirmed.

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

       See generally regarding these concepts McEachern v. Muldovan, 234 Ga. App. 152 (505 SE2d 495) (1998).


author: Johnson, Presiding Judge.

text:
    A98A1884.
    LONDON v. THE STATE.
    (508 SE2d 247)
   Johnson, Presiding Judge.

London was convicted of one count each of armed robbery, hijacking of a motor vehicle, possessing a vehicle with altered identification, and carrying a concealed weapon and two counts each of using a license plate to conceal the identity of a vehicle, theft by taking of a motor vehicle, and theft by receiving stolen property. He appeals.

London asserts that the evidence was insufficient to support his convictions of armed robbery, hijacking, carrying a concealed weapon and one count of theft by receiving stolen property.

“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. [Cit.]” Russell v. State, 230 Ga. App. 546, 549 (4) (497 SE2d 36) (1998). The test established in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), “is the proper test for us to use when the sufficiency of the evidence is challenged.” Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436) (1984).

1. The evidence is sufficient to support London’s conviction of armed robbery, hijacking, and theft by taking an automobile. The state is entitled to assert alternative theories of criminality to a jury. At trial, the state advanced two theories to establish London’s criminality as to these offenses. The state argued that London was guilty of these offenses either as the perpetrator or as a party to the crimes. See generally OCGA § 16-2-20; see also Walthour v. State, 269 Ga. 396, 398 (3) (497 SE2d 799) (1998). The record contains the following evidence regarding these two theories:

(a) London as the perpetrator: On January 20, 1997, Kenneth Wilkins drove his employer’s 1997 Cadillac to his apartment. As he got out of the car, Wilkins was approached by a man who was wearing a green army overcoat with the hood up, blue jeans, and a blue bandanna across the lower portion of his face. The assailant pointed a chrome-plated handgun at Wilkins, cocked the hammer, and told Wilkins to give him the car keys or he would “bust a cap in [Wilkins’] ass.” Wilkins gave the assailant the car keys. The assailant first forced Wilkins to lie down on the ground and then told Wilkins to stand up because he was taking Wilkins with him. Wilkins stood up and ran away. The assailant drove off with the car.

In the early morning of January 21, 1997, London drove the stolen Cadillac to a hotel where his friend, Rosalyn Smith, was staying. He told Smith that he had bought the car that afternoon. Based on a citizen’s report, London was apprehended nine days after the robbery while driving the stolen Cadillac. The car had an Alabama temporary tag. London told the police that he purchased the Cadillac from an Alabama car dealer named Dave Thomas. He produced two different handwritten bills of sale; one was for $19,000, and the other was for $27,000. London claimed a woman loaned him the money to purchase the vehicle and that two bills of sale had been prepared so his friend could avoid tax problems. He would not identify the woman.

At trial, Wilkins testified without objection that he had heard his assailant’s voice during the incident and that a police detective subsequently played a tape for him which was a recording of a similar male voice. The state, however, has not provided any page citation to the record where it was established that London’s voice was on the tape. Wilkins also testified that the handgun, found in London’s apartment and introduced into evidence by the state, was similar to the gun which the assailant pointed at him during the robbery. Wilkins has never been able to identify London as his assailant. At trial, London modified his prior statement to the police by claiming that he had purchased the car from Dave Thomas, who he now asserts was a friend of Rosalyn Smith. Thomas has never been located.

(b) London as a party to the crime: The state introduced the following evidence to show that if London was not the perpetrator, he was at least a party to the crime. In December 1996, London asked M. S., a teenager, to introduce him to some of M. S.’s friends. London said he would pay them money to steal cars for him and that he would take the cars to a chop shop. M. S. told three of his friends, J. J. B., R. C. and M. H., about London’s offer. Approximately two days after the robbery, Shavonna Smith, a friend of London’s, saw two teenage boys come to London’s apartment with the stolen Cadillac. One of the boys was named Jerrod. He had a gun which he showed London. Smith heard London ask the boys if they had to use a gun and informed them they would be paid the next day. She saw one of the boys remove the license plate from the Cadillac and replace it with an Alabama plate from a Lincoln Town Car. London threw the Cadillac’s license plate into a creek behind his apartment; the police later recovered it. J. J. B. denied that he or R. C. had stolen the Cadillac. J. J. B. admitted, however, that he was at London’s apartment and that London had asked him and R. C. if they knew anyone who would steal cars.

(c) As to the charges of armed robbery, hijacking and theft by taking of the Cadillac: When London was arrested nine days after the crime, he was in possession of the stolen Cadillac. Where a theft, whether committed by simple larceny, burglary, or robbery, is proven, the recent unexplained or inadequately explained possession of the stolen property by the defendant creates an inference or presumption of fact sufficient to convict. Williams v. State, 205 Ga. App. 397 (1) (422 SE2d 438) (1992). Whether or not a defendant’s explanation is satisfactory or reasonable is a question for the jury. Id.

Utilizing the reasonable doubt standard of Jackson v. Virginia, supra, the evidence was sufficient to support London’s conviction of armed robbery, hijacking and theft by taking of the Cadillac. London’s unexplained or inadequately explained recent possession of the stolen Cadillac, coupled with all of the other circumstances as shown by a totality of the evidence, supported his conviction of these three charges either as a perpetrator or as a party to the crime under the Jackson v. Virginia standard. See Rogers v. State, 185 Ga. App. 211, 212 (1) (363 SE2d 846) (1987).

2. London was convicted of theft by receiving a stolen Mossburg rifle and a Remington shotgun, the property of Dean Courson (Count 9 of the indictment). Applying the reasonable doubt standard of Jackson v. Virginia, supra, we find that the evidence was insufficient to support his conviction.

While the identity of the thief has not been established, the fact that someone other than the accused stole the property can be established by circumstantial evidence. See Thomas v. State, 218 Ga. App. 371, 373 (461 SE2d 305) (1995). However, there is insufficient evidence that London was in possession of and was exercising control over these stolen guns. Compare Owens v. State, 192 Ga. App. 335, 340 (1) (b) (384 SE2d 920) (1989). The evidence shows that a Moss-burg rifle and a Remington shotgun were stolen by an unknown party from Dean Courson’s truck on November 8, 1996. These guns were found during a search of London’s apartment on January 29, 1997. The rifle was found in an entryway closet, and the shotgun was found in one of the bedrooms. At the time of the search, however, London was not living in the apartment. He had moved and had allowed Rosalyn Smith to live in his apartment. Prior to moving, London had a roommate, Davis, who also lived in the apartment. Davis’ identification was found in one of the bedrooms. Rosalyn Smith testified that the guns were present in the apartment when she moved there, but she could not testify as to who had stolen the guns or whether London had ever exercised control over them. Several other guns also were found during the search. Considering the lack of direct evidence as to London’s possession or control over the weapons and the number of people who had equal access to the places in the apartment where the guns ultimately were found, we cannot conclude that the state carried its burden under a Jackson v. Virginia standard.

3. London was convicted of carrying a concealed pistol. The evidence was sufficient to support this conviction. On the day of London’s arrest, a police officer stopped the Cadillac which London was driving for a traffic violation. London began to reach under the driver’s seat. With London’s consent, the officer searched the car and found a loaded Glock pistol beneath the seat.

OCGA § 16-11-126 (a) makes the carrying of a concealed weapon a criminal offense. OCGA § 16-11-126 (d) provides in pertinent part that “[t]his Code section shall not forbid any person who is not among those enumerated as ineligible for a license under Code Section 16-11-129 from transporting a loaded firearm in any private passenger motor vehicle in an open manner and fully exposed to view or in the glove compartment, console, or similar compartment of the vehicle; provided, however, that any person in possession of a valid permit issued pursuant to Code Section 16-11-129 may carry a handgun in any location in a motor vehicle.”

The record does not establish that London had a valid permit which would have authorized him to carry the handgun anywhere within the motor vehicle. London had the burden of proving that he had such a permit. See Patterson v. State, 196 Ga. App. 754, 755 (397 SE2d 38) (1990). The pistol was not “fully exposed to view or in the glove compartment,” within the meaning of OCGA § 16-11-126 (d), and was within London’s reach under the car seat. Thus, there was evidence showing that he carried a concealed weapon in violation of OCGA § 16-11-126 (a). See Parrish v. State, 228 Ga. App. 177 (491 SE2d 433) (1997).

4. In view of our holding in Division 2, we need not address London’s enumeration that the trial court erred in sentencing him to serve ten years on Count 9.

5. London contends that the state repeatedly and erroneously placed his character in issue. His brief lists occasions when this allegedly occurred, but states the list is not all inclusive.

Except in one instance, London did not object to any of the questions or testimony which he now asserts as error. Thus, because no timely objection was made at trial, these issues are not preserved on appeal. See Lawton v. State, 259 Ga. 855, 856 (2) (388 SE2d 691) (1990).

As to the remaining issue, London asserts it was error to allow the arresting officer to testify that he made a radio call reporting that he was driving to the homicide office. Upon hearing the call made, London spontaneously stated, ‘You don’t think I am a killer? I’m not a killer.” He repeated this statement at the homicide office. Although London objected to the officer’s testimony about London’s voluntary statements, he did not object to the contents of the radio call itself. Further, the grounds for his objections were not based on a claim that his character was placed in issue. Thus, this issue also was not preserved on appeal. See id.; Frymyer v. State, 179 Ga. App. 391, 393 (3) (346 SE2d 573) (1986). Assuming it had been preserved, any error would have been harmless as it was substantially similar to other facts already admitted, without objection, to the jury. See Scott v. State, 206 Ga. App. 23, 26 (1) (c) (424 SE2d 328) (1992).

Any other instance where London’s character allegedly has been placed in issue and which is not appropriately identified in London’s brief will not be considered on appeal. We may not cull the record in search of error on behalf of either the state or the defendant. Talley v. State, 200 Ga. App. 442, 446 (4) (408 SE2d 463) (1991).

Decided October 29, 1998.

Nicholas Pagano, for appellant.

Benjamin F. Smith, Jr., District Attorney, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

6. Although not enumerated as error, London asserts in his brief that the record is silent as to whether the state gave notice of and conducted a hearing regarding similar transaction evidence, as required by Uniform Superior Court Rules 31.2 and 31.3. This issue was not enumerated as error and is not preserved on appeal. Krebsbach v. State, 209 Ga. App. 474, 475 (2) (433 SE2d 649) (1993).

7. The trial court did not err in failing to give a limiting instruction as to similar transaction evidence since London made no request for such an instruction. State v. Belt, 269 Ga. 763 (505 SE2d 1) (1998).

8. Because there was some evidence that London was a party to the crimes of armed robbery, hijacking, and theft by taking an automobile, see Division 1, the trial court did not err in charging the jury as to parties to a crime. See Payne v. State, 219 Ga. App. 318 (1) (a) (464 SE2d 884) (1995).

Based on the foregoing, the judgment of conviction is affirmed as to all charges except Count 9, receiving stolen property, which is not supported by sufficient evidence of record. The case is remanded to the trial court to have the conviction and sentence as to Count 9 expunged from London’s record.

Judgment affirmed in part and reversed in part and case remanded with direction.

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

       The state asserts in its brief that one of the firearms was found in the master bedroom closet of the apartment and that Davis’ identification was found in the other bedroom closet. The record, however, merely establishes that the shotgun was found in one of the bedroom closets. We cannot consider assertions of fact unsupported by the record on appeal. Behar v. Aero Med Intl., 185 Ga. App. 845, 846 (1) (366 SE2d 223) (1988).


text:
    A98A1924.
    BERRY v. THE STATE.
    (508 SE2d 435)
   Johnson, Presiding Judge.

Robert Sanders Berry was charged with one count of aggravated child molestation and two counts of child molestation. A jury found Berry guilty of one count of child molestation and not guilty of the remaining counts. Berry appeals. We affirm.

The facts, viewed in a light most favorable to support the jury verdict, reveal that Berry’s eleven-year-old niece, E. B., testified that she and two other children accompanied Berry into the woods behind his apartment complex. Berry brought a flashlight and some pages from a pornographic magazine. He built a fire, hung the flashlight in a tree to provide light, and told E. B. he would give her $20 if she removed her clothes. While E. B. removed her clothes, Berry removed his pants. He then masturbated.

Another time, Berry asked E. B. and another child to follow him to a bedroom in his apartment. He closed the door, and the three played a game in which they each removed pieces of their clothing. E. B. testified that she had removed her shirt and shorts when her father came home and Berry told the girls to put their clothes back on. Berry had removed his pants and underwear. During the game, Berry pulled out pornographic magazines and showed them to the children.

E. B. further testified that one time she was alone with Berry in a storage room when Berry turned off the lights and began fondling her. He touched her around her “butt and all of that” with his hands and mouth. She also testified about a time when she went to Berry’s apartment to paint his bedroom. When her father left, Berry told E. B. to remove some of her clothes and he masturbated. He offered her $20 if she would let him “put his tongue up [her].” Berry then performed oral sex on E. B.’s 12-year-old brother in her presence. Afterward, he showed the children how to use a condom by placing it on his penis.

An investigative agent read E. B.’s statement during his testimony. This statement was consistent with E. B.’s trial testimony. Her testimony was also supported by the statement her brother gave to the agent.

1. Berry contends the trial court erred by permitting the state to introduce into evidence E. B.’s statement to the agent. Berry argues that the portions of E. B.’s statement concerning the game or the incident in the woods are not covered by the child hearsay statute (OCGA § 24-3-16) because neither occurrence described an act of sexual contact. We disagree.

OCGA § 24-3-16 permits the introduction into evidence of “[a] statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another or performed with or on another in the presence of the child” if the child is available to testify and the court finds that the circumstances of the statement provide sufficient indicia of reliability. (Emphasis supplied.)

E. B.’s statements regarding Berry’s actions in the woods fall within the statute. In the challenged statement, E. B. told the investigating agent that Berry asked her to remove all her clothing and that once she had done so, Berry began to masturbate in her presence. Even absent contact with the child, Berry’s masturbation is clearly an action performed “with or on another in the presence of the child.”

As for the statements regarding the game, the acts described were part of the res gestae of the crime charged. “[A]cts are pertinent as part of the res gestae if they are done pending the hostile enterprise, and if they bear upon it, are performed whilst it is in continuous progress to its catastrophe, and are of a nature to promote or obstruct, advance or retard it, or to evince essential motive or purpose in reference to it.” (Citations, punctuation and emphasis omitted.) Gonzalez v. State, 213 Ga. App. 667, 669 (3) (445 SE2d 769) (1994). A trial court’s determination that evidence offered as part of the res gestae is sufficiently informative and reliable as to warrant being considered by the jury will not be considered on appeal unless that determination is clearly erroneous. Id. We find no such error here. Moreover, any possible error in admitting this portion of E. B.’s statement to the investigating agent was harmless in light of the overwhelming evidence concerning Berry’s commission of child molestation. See Sparks v. State, 172 Ga. App. 891, 892 (1) (324 SE2d 824) (1984).

2. Berry asserts he was denied a thorough and sifting cross-examination of E. B.’s mother because he was not permitted to question the mother regarding her previous testimony under oath that E. B. had been sexually molested by three different persons. Berry further argues that the trial court erred in refusing to allow him to introduce such evidence to suggest or imply that someone other than he molested E. B. We disagree with Berry’s contentions since such evidence was not relevant to the crimes charged.

“Generally, evidence of a prior molestation or previous sexual activity on the part of the victim is not admissible in a child molestation case to show either the victim’s reputation for nonchastity or preoccupation with sex. [Cit.] This type of evidence may be admissible for the limited purpose of establishing other possible causes for behavioral symptoms typical of the child sexual abuse accommodation syndrome or to explain certain medical testimony introduced at trial. [Cit.]” Tidwell v. State, 219 Ga. App. 233, 237-238 (5) (464 SE2d 834) (1995). Such evidence may also be admissible to show the victim’s lack of credibility where the victim has made prior false allegations of child molestation. See Wilson v. State, 210 Ga. App. 705, 707 (1) (436 SE2d 732) (1993).

Here, none of the exceptions to the general rule of inadmissibility applies. There was no expert testimony concerning the child abuse accommodation syndrome, nor was any medical evidence admitted. There was also no evidence that E. B. ever made any false allegations of child molestation. While evidence of prior molestations may be admissible to show that someone other than the accused committed the crime alleged, there is no evidence in the record that any individual other than Berry committed the acts of child molestation charged here. The trial court did not abuse its discretion in ruling that evidence of other alleged molestations was not relevant to the present molestation charge.

Decided October 29, 1998.

B. Dean Grindle, Jr., for appellant.

Darrell E. Wilson, District Attorney, Christopher M. Quinn, Assistant District Attorney, for appellee.

Furthermore, even if the trial court should have allowed Berry to introduce such evidence and to cross-examine the child’s mother regarding such evidence, it is highly probable that the error did not contribute to the verdict. In light of the abundant evidence against Berry, including the victim’s testimony, her brother’s testimony, the testimony of another child, and the children’s statements to law enforcement officers, the trial court’s exclusion of the evidence and limitation of cross-examination was harmless. See Letlow v. State, 222 Ga. App. 339, 343 (2) (474 SE2d 211) (1996).

3. Berry also enumerates as error the trial court’s denial of his motion for new trial, based on the grounds raised in his other enumerations of error. For the reasons discussed in Divisions 1 and 2, this enumeration lacks merit.

Judgment affirmed.

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


text:
    A98A1955.
    BLAKE et al. v. BLAKE.
    (508 SE2d 443)
   Johnson, Presiding Judge.

This case involves a lawsuit brought by two minor children, through their mother, against their natural father for injuries incurred in an automobile accident on March 4, 1996. The trial court granted summary judgment to the father on the basis of parental or family immunity. The children appeal, and we affirm.

The record reveals that Angela Blake and Roger Blake were divorced in August 1994. Angela Blake was given sole physical and legal custody of the children and Roger Blake was granted visitation rights. Pursuant to the terms of the divorce, Roger Blake was obligated to pay $250 per month per child in child support. Roger Blake was also obligated to maintain medical and dental insurance on the children. There is no evidence in the record that since the divorce, including the time before the automobile accident, the time of the automobile accident, and continuously to the present, Roger Blake has failed to support his children or failed to maintain a family relationship with his children. Nor is there any evidence in the record that Roger Blake’s rights have been terminated or that he has attempted to abandon his children. While evidence was presented that at the time of the accident Roger Blake was not exercising visitation rights, but was merely transporting his children to school, this act can be considered part of his parental duties.

It is well established in Georgia that an unemancipated minor may not sue a parent for injury arising from a negligent act. Clabough v. Rachwal, 176 Ga. App. 212, 213 (335 SE2d 648) (1985); Coleman v. Coleman, 157 Ga. App. 533 (278 SE2d 114) (1981). Public policy reasons which support the parental or family immunity include: (1) disturbance of domestic tranquility, (2) danger of fraud and collusion, (3) depletion of the family exchequer, (4) the possibility of inheritance, by the parent, of the amount recovered in damages by the child, and (5) interference with parental care, discipline and control. Clabough, supra.

Angela Blake’s argument that because of the custody award the minor children are emancipated as to their father is without merit. In Coleman, supra, we held as follows: “Although primary custody for the minor was placed with the mother, the father provides support in the amount of $250 per month. Thus, although the basic family situation has been altered, the father-son relationship continues, as does defendant’s responsibility to provide for his son. There is accordingly a continued need for respect and the authority to discipline. Furthermore, the possibility of ‘friendly’ or ‘collusive’ actions [cit.] is no less real in this situation than in the traditional family situation.” Id. at 534. Based on the record before us, the present case is on all fours with Coleman.

Angela Blake relies heavily on Segars v. Southern Guaranty Ins. Co. &c., 192 Ga. App. 265 (384 SE2d 426) (1989), and contends that this case impliedly overrules Coleman. We disagree. While Segars states that case-by-case determinations must be made regarding whether family exclusion clauses are against public policy, it did not impliedly overrule Coleman or the application of family exclusion clauses in cases presenting the facts found in Coleman or the present case.

Segars involved a wrongful death cross-claim brought by a divorced father against the estate of his former wife after the minor and her mother were killed when the vehicle driven by the mother struck a tree. Not only did the case involve a different cause of action, but the death of the minor and the mother ended any legitimate concern for the public policy reasons behind the parental or family immunity. In both Coleman and the present case, all parties are still alive, and the public policy reasons behind the parental or family immunity doctrine still apply.

Decided October 29, 1998

J. M. Raffauf, for appellants.

Temple, Strickland, Counts & Dinges, William D. Strickland, William A. Dinges, for appellee.

Based on the foregoing, the trial court did not err in granting summary judgment to Roger Blake in this case.

Judgment affirmed.

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


text:
    A98A2211.
    DEWBERRY PAINTING CENTERS, INC. et al. v. DURON, INC.
    (508 SE2d 438)
   Johnson, Presiding Judge.

In this case we must decide whether an individual corporate officer has become personally liable for the debts of the corporation for which he serves as president as a result of executing guaranty agreements which purport to be signed in only a representative capacity.

Duron, Inc. sued Dewberry Painting Centers, Inc. and its alleged guarantor, D. Gary Dewberry, on two separate open accounts. During the pendency of the action, Duron apparently realized that the proper corporate party defendant was Dewberry Painting Contractors, Inc., rather than Dewberry Painting Centers, Inc. From the record before us it appears that Duron made no effort to substitute the proper corporate party or even to correct the misnomer if, in fact, a mere misnomer is what had occurred. Duron nevertheless sua sponte changed the style of the case as it appeared in subsequent pleadings to show the defendant as “D. Gary Dewberry, Ind. d/b/a Dewberry Painting Centers, Inc.” Duron then moved for summary judgment against the individual defendant, D. Gary Dewberry, only. Mr. Dewberry filed a cross-motion for summary judgment insisting that in dealing with Duron he had at all times acted in his representative capacity, never in his individual capacity. The trial court, using the style “DEWBERRY PAINTING CENTERS, INC., AND D. GARY DEWBERRY,” granted Duron’s motion for summary judgment and entered judgment against “defendant.” We are able to ascertain from the remainder of the judgment and by reference to Duron’s motion itself that the judgment refers only to the individual defendant, D. Gary Dewberry. No ruling was entered on Dewberry’s cross-motion for summary judgment. Dewberry appeals from the judgment entered in favor of Duron, Inc. For the reasons below, we reverse.

Summary judgment is appropriate only when the court, viewing all the evidence and drawing reasonable inferences in a light most favorable to the non-movant, concludes that the evidence does not create a genuine issue of material fact and that the movant is entitled to judgment as a matter of law. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). In responding to Duron’s motion,' Dewberry can survive summary judgment by showing that a genuine issue of material fact exists as to any element of plaintiff Duron, Inc.’s cause of action.

Viewed in that light, the record shows the following: On two occasions, June 5, 1991 and June 30, 1993, Dewberry Painting Contractors, Inc., through its president, executed a document described as an “Account Application/Credit Agreement” in order to open a credit account with one of its suppliers, Duron, Inc. Duron, Inc. extended credit to Dewberry Painting Contractors, Inc. by establishing two open accounts, numbered respectively 40-14066 and 40-14069. The account statements attached to the affidavit of Duron’s administrative manager indicated that as of October 31, 1993, the account balance for account no. 40-14069 was $7,809.12 and for account no. 40-14066 was $699.73. These statements reflect that both accounts had been closed.

1. Dewberry argues that the trial court erred in granting summary judgment against Dewberry Painting Centers, Inc. because, as Duron’s exhibits show, Duron established accounts with Dewberry Painting Contractors, Inc. and not Dewberry Painting Centers, Inc. However, the record reveals that Duron prayed for relief only against D. Gary Dewberry in its motion for summary judgment, and the trial court entered judgment only against D. Gary Dewberry. Thus, judgment was never entered against Dewberry Painting Centers, Inc., and this enumeration of error is premature.

2. Dewberry contends that a proper construction of the two account applications fails to establish a binding guaranty and that summary judgment should have been granted to him rather than Duron.

. (a) Account no. 40-14069: The document creating this account contained the following language:

“ALL APPLICANTS — PLEASE COMPLETE AND SIGN
TO: DURON, INC.
In consideration of your extending credit to the firm of Dewberry Painting Contractors, Inc, and in consideration of the receipt of certain materials by said firm, we the undersigned do hereby jointly and severally guarantee the payment by said firm. This is your authority to charge 1V2% per month (18% per annum) on all past due amounts, we the undersigned do hereby agree to the Summary of Terms (1-5).
The below signatures also grant to DURON, INC. the right to check any factors pertinent to a fair evaluation of establishing credit. I/WE jointly and severally personally guarantee the performance of the applicant herein agreeing to the terms hereinabove stated.”

Immediately following this contract language, and immediately above the signature line, “Dewberry Painting Contractors, Inc.” was typed. The signature of D. Gary Dewberry is on the signature line, followed by the typed word “President.”

Dewberry contends he signed this document only in his representative capacity and did not personally guarantee the document. We agree.

We first note that the version of OCGA § 11-3-403 as it existed on the date of the execution of the document, rather than the version which existed at the time summary judgment was entered in this case, applies. See Marek Interior Systems v. White, 230 Ga. App. 518, 520 (1) (496 SE2d 749) (1998). Under the applicable version of that statute, a signature made in the representative capacity is one bearing “the name of an organization preceded or followed by the name and office of an authorized individual. . . .” Except as otherwise established by the parties, the representative is personally obligated “if the instrument names the person represented but does not show that the representative signed in a representative capacity.” OCGA § 11-3-403 (2) (b).

Because the contractual language quoted above clearly shows the name of the organization, Dewberry Painting Contractors, Inc., followed by the signature “D. Gary Dewberry” and the typed designation “President,” the requirements of OCGA § 11-3-403 (3) for a signature made in a representative capacity are clearly satisfied. Therefore, the trial court erred in granting summary judgment to Duron on this issue.

Dewberry contends that the trial court erred by denying his cross-motion for summary judgment as to this account. As we noted, however, there is nothing in the record to show that the trial court ruled on the issue, and so there is nothing for us to review.

(b) Account no. 40-14066: The document creating this account contained the following language, almost, but not quite, identical to the language quoted above:

Decided October 29, 1998.

Banks, Stubbs & Neville, John R. Neville, for appellants.

Mann, Bracken, Layng & Knezo, Stephen J. Knezo, for appellee.

“ALL APPLICANTS — PLEASE COMPLETE AND SIGN
TO: DURON, INC.
In consideration of your extending credit to the firm of Dewberry Painting Contractors, Inc, and in consideration of the receipt of certain materials by said firm, we the undersigned do hereby jointly and severally guarantee the payment by said firm. This is your authority to charge 1V2% per month (18% per annum) on all past due amounts, we the undersigned do hereby agree to the Summary of Terms (1-5). The below signatures also grant to DURON, INC. the right to check any factors pertinent to a fair evaluation of establishing credit. I/WE jointly and severally_the performance of the applicant herein agreeing to the terms hereinabove stated.” (Court note: The underlined empty space is included to indicate where the printed words “personally guarantee” were crossed out.)

This document language was also followed by the signature of D. Gary Dewberry, and the title “president” was added by hand immediately thereafter. However, the name of the organization, Dewberry Painting Contractors, Inc., neither precedes nor follows the signature. Thus, this particular signature does not meet the requirements of OCGA § 11-3-403 (3) for establishing that a signature is made in a representative capacity. While this fact may ultimately result in Dewberry being held personally liable by a jury for the debt on this account, it is obvious that portions of the contract language, including the printed words “personally guarantee,” are crossed out in one area while retained in another. Thus, a question of fact remains as to the intent of the parties regarding the capacity in which Dewberry executed the agreement opening account no. 40-14066. The trial court erred in granting Duron summary judgment on this issue.

' 3. Based on our holding in Division 2 (a), we need not reach D. Gary Dewberry’s remaining enumeration of error as to account .no. 40-14069.

Judgment reversed.

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


author: Smith, Judge.

text:
    A98A1473.
    HALL v. THE STATE.
    (508 SE2d 703)
   Smith, Judge.

Santonio R. Hall was indicted by a Clarke County grand jury for malice murder and felony murder in the killing of one victim and aggravated assault in the wounding of another. The jury found Hall guilty of felony murder, aggravated assault, and voluntary manslaughter as a lesser included offense of malice murder. The trial court merged the felony murder conviction into the voluntary manslaughter conviction. Hall’s motion for new trial as amended was denied, and he appeals, asserting six enumerations of error. Finding no harmful error, we affirm.

1. Hall asserts the general grounds. Construed to support the jury’s verdict, the evidence shows that Hall was standing on the street in a housing project in Athens when the occupants of a Cadillac drove slowly through the neighborhood and one of them fired a gun into the air. While other bystanders retreated inside the home of an individual known as “Shaky”, Hall left the scene to retrieve his .357 magnum revolver and returned. A bystander identified the occupants of the car, and Hall said, ‘Well, when the Cadillac come [sic] back around . . . I’m going to bust a cap.” A witness who overheard this conversation was sitting on Shaky’s porch when the Cadillac returned a short time later. Hall was nearby. As the Cadillac drove up the street the witness heard a very loud gunshot, so loud that he believed his eardrum ruptured. He fled down the alley adjoining Shaky’s house and encountered Hall, who said, “I didn’t do anything.” A bullet passed through the right rear window of the Cadillac and through one victim’s head, killing him, and struck the surviving victim in the head before lodging in the headliner of the car above the driver’s door.

Hall gave a videotaped statement to police, which was played for the jury. In the statement, he admitted he fired one shot into the car, explaining that he saw somebody in the back seat with a gun and believed this person was going to shoot him. At trial, Hall testified to death threats he had received from several individuals he believed were occupants of the car. While he acknowledged that he shot into the Cadillac, he claimed that he acted in self-defense when an occupant of the car reached out of the right rear window with a gun. The State, however, presented evidence that all the windows in the car were closed at the time of the incident.

“[A] person is justified in using force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent death or great bodily injury to himself or a third person or to prevent the commission of a forcible felony.” OCGA § 16-3-21 (a). “When a defendant presents evidence that he was justified in using deadly force, the burden is on the State to disprove the defense beyond a reasonable, doubt. [Cit.]” Andrews v. State, 267 Ga. 473, 474 (1) (480 SE2d 29) (1997). Whether the circumstances justified deadly force is a question for the jury. Anderson v. State, 245 Ga. 619, 623 (1) (266 SE2d 221) (1980).

In reviewing the jury’s verdict, we construe the evidence in the light most favorable to the verdict. We do not weigh the evidence or determine witness credibility, but only consider sufficiency of the evidence under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Conflicts in the testimony of the witnesses are matters of credibility for resolution by the jury. “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” (Citations and punctuation omitted.) Howard v. State, 227 Ga. App. 5, 8 (6) (a) (488 SE2d 489) (1997).

A person commits voluntary manslaughter when he kills another person, under circumstances which would otherwise be murder, and “he acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person.” OCGA § 16-5-2 (a).

Based on the evidence, the jury could have concluded that although the occupants of the Cadillac initially fired a pistol into the air in Hall’s presence, Hall left the scene to obtain a firearm, returned, and stated his intention to shoot at the car after the occupants were identified to him. The jury was authorized to reject Hall’s testimony that an occupant of the car reached out a window with a gun in view of the countervailing testimony that the windows of the car were closed. On the evidence before it, the jury reasonably could have concluded that Hall was provoked and acted out of an irresistible sudden passion or anger in killing the victim, but that, at the time, it was not necessary for him to do so in order to protect himself. Accordingly, the evidence was sufficient to support the jury’s guilty verdict on the lesser included offense of voluntary manslaughter. Young v. State, 229 Ga. App. 497, 499-500 (494 SE2d 226) (1997).

2. Hall next alleges as error the trial judge’s failure to recuse himself from the case. Hall’s basis for this contention is the trial judge’s attendance at the same church attended by the families of both Hall and one of the victims. The trial judge disclosed to the parties at the bond hearing that he knew the families of the victim and Hall and attended church with them. Despite this disclosure, Hall never moved for recusal. Because of his failure to seek recusal at trial, Hall has failed to preserve this issue for appellate review and we cannot reach the merits of his contention. Glean v. State, 268 Ga. 260, 264-265 (2) (e) (486 SE2d 172) (1997). See generally Kurtz v. State, 233 Ga. App. 186, 188, n. 1 (504 SE2d 51) (1998).

3. Hall next complains the trial court erred in admitting testimony, noted above, that a witness overheard a conversation between Hall and a bystander, in which the bystander identified the occupants of the car, and Hall said, “Well, when the Cadillac come back around . . . I’m going to bust a cap.” Hall contends this testimony was barred by the Supreme Court’s recent decision in Jarrett v. State, 265 Ga. 28-29 (1) (453 SE2d 461) (1995), which limited testimony regarding an absent third party’s statements based on the acquiescence or silence of the accused. Id. at 29 (1). But that decision is wholly inapplicable here. Hall was not acquiescent or silent in the face of the third party’s statement; he responded with a statement indicating his intention to harm the occupants of the car. Hall’s statement is “admissible as an admission by defendant against his penal interest. [Cits.]” Howard v. State, 227 Ga. App. 5, 7 (2) (488 SE2d 489) (1997). Moreover, the third party here was not absent. The bystander appeared at trial and testified on Hall’s behalf, denying both the statement attributed to him by the other witness and earlier statements given by him to prosecutors.

4. Hall contends the trial court erred in refusing to instruct the jury in accordance with his requests to charge and in giving other requests to charge over his objection. He asserts at least four separate instances of alleged error in a single enumeration, in violation of OCGA § 5-6-40. ‘When, as here, an appellant asserts more than one error within a single enumeration, this court in its discretion may elect to review none, or one or more, of the errors asserted within the single enumeration.” (Citations and punctuation omitted.) Toledo v. State, 216 Ga. App. 480, 482 (4) (455 SE2d 595) (1995). We elect to review Hall’s first assertion, that the trial court should have instructed the jury on reckless conduct as a lesser included offense of aggravated assault.

Hall’s contention is without merit because the record contains no evidence of reckless conduct. It is undisputed that Hall deliberately fired the pistol at the occupants of the car; he contended at trial that he was justified in doing so and acted in self-defense. “An essential element of the offense of reckless conduct is criminal negligence. In the case sub judice, there is no evidence that defendant was negligent when he pointed a [pistol] at the victim. On the contrary, defendant admits he deliberately pointed the weapon at the victim. Under these circumstances, defendant was guilty of aggravated assault or was not guilty of any crime. Accordingly, it was not error to refuse to give the requested charge on reckless conduct as a lesser included offense.” (Citations and punctuation omitted.) Perryman v. State, 208 Ga. App. 754, 756 (3) (431 SE2d 742) (1993).

5. Hall also contends that his convictions on the voluntary manslaughter of one victim and the aggravated assault of the other merged as a matter of fact under OCGA § 16-1-7 (a) because only one shot was fired, striking both victims. But “the legislature did not intend one crime to be included within another if each crime affected a different person.” Harshaw v. State, 134 Ga. App. 581, 582 (215 SE2d 337) (1975). “[W]here a defendant is charged with murder of one person and aggravated assault upon another person, the aggravated assault does not merge into the felony murder; i.e., the verdicts of guilty of felony murder as to one person and aggravated assault as to another person will be upheld. [Cit.]” Adams v. State, 255 Ga. 356, 359 (5) (338 SE2d 860) (1986).

6. Finally, Hall contends the trial court erred in allowing the State to impeach a defense witness with a first offender sentence. At the time of trial, such impeachment clearly was permitted. Favors v. State, 234 Ga. 80, 86 (3) (214 SE2d 645) (1975). But in the recent decision of Matthews v. State, 268 Ga. 798, 801-803 (4) (493 SE2d 136) (1997), the Supreme Court of Georgia held that a witness may not be impeached by evidence of a first offender sentence in the absence of an adjudication of guilt. “[T]he first offender record of one who is currently serving a first offender sentence or of one who has successfully completed the first offender sentence may not be used to impeach the first offender on general credibility grounds (i.e., by establishing that the first offender has been convicted of a felony or crime of moral turpitude) because no adjudication of guilt has been entered. [Cits.]” Davis v. State, 269 Ga. 276, 277 (2) (496 SE2d 699) (1998). Although the use of the first offender record for impeachment purposes may have been correct under Favors at the time the trial court ruled, that ruling has been rendered erroneous by the Supreme Court’s subsequent decision in Matthews. Buffington v. State, 228 Ga. App. 810, 812 (492 SE2d 762) (1997).

But that does not end our inquiry. “While the trial court’s ruling in this regard was erroneous, it is fundamental that harm as well as error must be shown for reversal. [Cit.]” Matthews, supra at 803 (4). The error here was harmless, for two reasons.

First, as in Matthews, the impeached witness was not an eyewitness to the crime itself, although he was a passenger in the Cadillac and observed the aftermath. While the witness here, in response to leading questions from Hall’s counsel, agreed that certain individuals had threatened Hall and that they sometimes drove a Cadillac, he did not see Hall at the scene of the shooting and did not offer any testimony concerning Hall’s actions or state of mind at that time. Moreover, this witness’s testimony was merely cumulative of that given by other, unimpeached witnesses, including another occupant of the car, and therefore provides no grounds for reversal. See Morgan v. State, 230 Ga. App. 608, 610 (496 SE2d 924) (1998).

Decided October 30, 1998.

Thurmond, Mathis & Patrick, David T. Wooten, for appellant.

Harry N. Gordon, District Attorney, William W. Tanner, Assistant District Attorney, for appellee.

Second, Hall acknowledged that he intentionally fired a pistol into the car and gave conflicting testimony regarding his reasons for doing so. Testimony was also presented that the occupants were identified to Hall as persons other than the individuals who allegedly threatened him, but he nevertheless expressed his intention to fire on the car and did so. “Given this overwhelming evidence against [Hall], it is highly probable that the error in allowing impeachment of his witness did not contribute to the jury’s verdict of guilt. [Cit.]” Matthews, supra at 803 (4).

Judgment affirmed.

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

       In doing so the trial court followed the procedure recommended in the commentary to the Code of Judicial Conduct, Canon 3E, Disqualification (1). The official commentary states: “Judges should disclose on the record information that the court believes the parties or their lawyers might consider relevant to the question of disqualification, even if they believe there is no legal basis for disqualification.”


text:
    A98A1688.
    COOPER et al. v. EDWARDS et al.
    (508 SE2d 708)
   Judge Harold R. Banke.

Jean Stanley Edwards on her own behalf and as executor of the estate of Buford O. Edwards, Sr. (collectively “Edwards”) brought a personal injury action against Anthony Lamont Cooper, Darrell Den-son, and Canal Insurance Company. Edwards sought to recover for damages stemming from a collision occurring in Laurens County involving a tractor trailer truck owned by Denson and operated by Cooper. Denson conducted business as Denson Trucking Company and had not incorporated. Following a jury verdict for Edwards, Cooper and Denson appeal. Held-.

In their sole enumeration of error, Denson and Cooper assert that the trial court erred in denying the motion to transfer the case to Evans County because venue in Laurens County was improper.

At the time of the collision, Denson resided with his wife in Claxton in Evans County. But when Edwards filed suit nearly two years later, Denson no longer lived in Georgia having been incarcerated in a federal correctional facility in South Carolina to serve a sentence in excess of 18 years on federal drug convictions. Denson will not be eligible for parole until August 2013. Subsequent to his imprisonment, Denson sold his mobile home in Evans County and his wife moved to another county. See Lance v. Safwat, 170 Ga. App. 694 (1) (318 SE2d 86) (1984) (neither domicile nor residence of one spouse is presumed to be that of the other).

Relying on his stated intent to return to Evans County in 2013 after he is paroled, and on his avowed denial that he is a resident of South Carolina or domiciled there, Denson contends that venue was only proper in Evans County. Similarly, Cooper claims that venue was improper in Laurens County because he was not a resident of that county. It is uncontested that the incident at issue occurred in Laurens County.

Where, as here, the trial court serves as the trier of fact on the issue of venue, its decision will only be reversed if the evidence demands a contrary finding. Johnson v. Woodard, 208 Ga. App. 41, 42 (1) (429 SE2d 701) (1993); McClendon v. Albany Warehouse Co., 203 Ga. App. 865, 866 (1) (418 SE2d 130) (1992).

Pretermitting any determination as to whether the truck was carrying exempt commodities and therefore was not subject to OCGA § 46-7-17 (b), we find, as did the trial court, that the provisions of the Georgia Long Arm Statute control.

Denson argues that notwithstanding the undisputed fact that he cannot live in Evans County until at least 2013, he continues to “reside” in Evans County because he did not intentionally change his residence or domicile from there. He claims that because he continues to reside in Evans County, suit against him was only proper there and the Long Arm Statute had no application. We disagree.

In 1977, the legislature expanded the definition of “nonresident” to include “an individual . . . who, at the time a claim or cause of action [arose] under Code Section 9-10-91, was residing [or] domiciled ... in this state and subsequently becomes a resident [or] domiciled . . . outside this state as of the date of perfection of service of process as provided by Code Section 9-10-94.” OCGA § 9-10-90. (Ga. L. 1977, p. 587, § 1.) See Rose v. Ryan, 209 Ga. App. 160, 161 (2) (433 SE2d 291) (1993). In redefining “nonresident” within the context of the Long Arm Statute, the legislature did so in the disjunctive so that either a change in residence or change in domicile would suffice to make a person a nonresident. Notwithstanding Denson’s claim that a person must both intend to and actually establish a residence outside of Georgia to become a “nonresident,” no such requirements appear in the statute at issue. Nor can we rewrite this law under the guise of construing it. Tharpe v. State, 207 Ga. App. 900 (1) (429 SE2d 342) (1993).

Although we have found no cases specifically interpreting “residence” and “domicile” under the Long Arm Statute, we have analyzed those terms in other contexts. We have held that a concurrence of actual residence and intent to remain is necessary to acquire a domicile. Wright v. Goss, 229 Ga. App. 393, 396 (2) (494 SE2d 23) (1997). In contrast, a person may have several residences which are not necessarily permanent or in the same locale as the domicile. Id. It follows that regardless of whether Denson’s domicile remains in Evans County, he is currently a South Carolina resident. As such, he is subject to our Long Arm Statute. Otherwise, any former Georgia resident incarcerated in another state could avoid being deemed a “nonresident” for purposes of long arm jurisdiction by declaring his firm intent to return to Georgia someday, and, thereby, circumvent the jurisdiction and venue provisions of the Long Arm Statute. See Crowder v. Ginn, 248 Ga. 824, 825 (286 SE2d 706) (1982) (definition of “nonresident” in Long Arm Statute does not offend due process clauses of state and federal constitutions). Surely, this was not the legislature’s plan when enacting OCGA § 9-10-90.

Denson’s reliance on cases decided before the 1977 amendment to the definition of “nonresident” or on other statutory or constitutional venue provisions is misguided. Compare Williams v. Dept. of Human Resources, 150 Ga. App. 610 (1) (258 SE2d 288) (1979) (for purposes of juvenile court’s jurisdiction in parental rights termination case, the county of incarceration does not become parent’s county of residence). Compare Sorrells v. Sorrells, 247 Ga. 9, 12 (3) (274 SE2d 314) (1981) (probate court can consider whether person lacked mental capacity to acquire new domicile of choice); Scott v. Scott, 192 Ga. 370 (3) (15 SE2d 416) (1941) (involuntary confinement in another county not a voluntary change in county of domicile).

In these circumstances, we find that Denson was a “nonresident” within the meaning of the Long Arm Statute. Because the tortious acts or omissions occurred in Laurens County, venue was proper there. Evers v. Money Masters, 203 Ga. App. 546, 548 (3) (417 SE2d 160) (1992); OCGA § 9-10-93.

Decided October 30, 1998.

McNatt, Greene & Thompson, Hugh B. McNatt, Troy L. Greene, for appellants.

Chambless, Higdon & Carson, Marc T. Treadwell, Billy R. Kight, for appellees.

For a different reason, we likewise affirm the trial court’s venue ruling as to Cooper. One claiming lack of venue has the burden of proving it. Lukas v. Pittman Hwy. Contracting Co., 134 Ga. App. 305, 309 (1) (b) (214 SE2d 398) (1975). Yet, in support of the motion to transfer, Cooper failed to offer any competent evidence of his residence. Franek v. Ray, 239 Ga. 282, 286 (236 SE2d 629) (1977) (defendant’s county of residence as of the date of filing generally determines the appropriate venue). But see Bergen v. Martindale-Hubbell, 245 Ga. 742, 743 (2) (267 SE2d 10) (1980).

Judgment affirmed.

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

       The trial court agreed to permit Canal Insurance Company to be stricken from the case as a party defendant.

       When Edwards filed the complaint, Cooper was incarcerated in a State prison.

       In its motion to be dropped as a party, Canal Insurance Company claimed that no policy of insurance had been filed with the Public Service Commission and that Denson was an “exempt” carrier within the meaning of the Motor Carrier Act. Denson admitted that he hauled loads throughout the Southeast.