text:
    A00A2119.
    STONE v. THE STATE.
    (546 SE2d 787)
   Mikell, Judge.

After a bench trial, Rachel S. Stone was convicted of driving under the influence of alcohol to the extent that she was a less safe driver. Stone appeals her conviction, enumerating as error the sufficiency of the evidence and the trial court’s exclusion of her expert’s testimony regarding the Intoxilyzer 5000. We affirm.

On appeal from a criminal conviction, the evidence is viewed in a light most favorable to the verdict. We do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient under the standard of Jackson v. Virginia. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Viewed in a light most favorable to the verdict, the evidence shows that at approximately 2:00 a.m. on October 22,1998, Officer C. B. Johnson was assigned to a vehicle checkpoint location on Peach-tree Road. At least five to six other officers were also working the location. All of the officers wore orange police vests and used flashlights to direct each car to the checkpoint. Before reaching the officers, drivers were alerted to the checkpoint by a sign that read, “proceed ahead; vehicle checkpoint; prepare to stop.” Johnson testified that the average driver decreased his speed after passing the sign, then slowly came to a stop.

Johnson noticed Stone approaching the checkpoint because she did not decrease her speed. He testified that while signaling her to stop, he jumped out of the path of her car because he thought she might hit him. Johnson and the other officers yelled at Stone to stop the vehicle. Stone finally stopped approximately 75 feet past the checkpoint.

Johnson smelled a strong odor of alcohol emanating from Stone as she rolled down her window. When asked if she had been drinking, Stone said she had not. She explained that she did not stop because she did not see the sign. As a basic preliminary test, Johnson asked her to recite the alphabet from C to Q. Stone was unable to follow his directions.

Johnson told Stone to move her car to the side of the road and asked her to walk across the street with him. Johnson testified that it was necessary to cross the street because he wanted the videocamera in his car to record their interaction, including their conversations.

As they walked across the street, Stone was unable to answer simple questions. Once they reached the other side, Johnson activated the videocamera from an on/off switch located on his gun belt. Again, Johnson asked Stone to recite the alphabet from C to Q, and she was unable to do so. Johnson attempted to conduct the horizontal gaze nystagmus sobriety test on Stone, but she could not comply with his directions. Stone’s eyes were bloodshot and red, and she was swaying, disoriented, and confused. Before Johnson could conduct the walk and turn test, one-leg stand test, and the portable breath test, Stone walked away from him into the street. As she crossed the street, Johnson warned Stone that she was going to get hit by traffic, but she continued to walk toward her friend, who was a passenger in the car. Johnson followed her.

Though they were out of video range, the camera recorded their conversation. Johnson asked Stone if she was willing to participate in the field sobriety evaluations. He testified that she appeared confused and disoriented and could not make a decision. Finally, she said she was not going to participate. After she refused the evaluations, he placed her under arrest for DUI. The videotape, which was played during the trial and admitted into evidence, was consistent with Johnson’s testimony about his observations of Stone. Johnson testified that based on his observations of Stone, he did not feel that she could safely drive.

1. In her first enumeration of error, Stone contends that the evidence is insufficient to support her conviction. We disagree.

Stone was charged with violating OCGA § 40-6-391 (a) (1), which provides, “A person shall not drive or be in actual physical control of any moving vehicle while [u]nder the influence of alcohol to the extent that it is less safe for the person to drive.” Since there was no dispute that Stone was driving, the state was simply required to show that she had consumed alcohol and was a less safe driver as a result of that alcohol. This Court has held that opinion testimony from police officers may be offered to make this showing. Also, the state is not required to prove the results of a breath test to make the showing.

In Waits v. State, this Court found that an officer’s testimony that the suspect had red, glassy eyes, slurred speech, and a strong odor of alcohol on his breath and that he was unable to maintain his balance was sufficient to authorize a conviction under OCGA § 40-6-391 (a) (l). Similarly, in Moore v. State, this Court held that “no documentary evidence of intoxication was required.” Instead, the evidence was sufficient to establish a violation of OCGA § 40-6-391 (a) (1) where the officer opined that the defendant was driving under the influence of alcohol to the extent that it was less safe for him to drive. The officer in Moore also noticed the defendant’s slurred speech, red, glassy eyes, loudness and boisterousness and smelled alcohol.

In this case, Johnson testified that he smelled a strong odor of alcohol on Stone’s breath and that her eyes were bloodshot and red. Johnson also testified, and the videotape confirmed, that Stone could not recite the alphabet as instructed, swayed, and appeared disoriented and confused. Finally, based on his observation of Stone, Johnson opined that it was “absolutely not” safe for her to drive. Thus, following Waits and Moore, we find that Johnson’s testimony about his observations of Stone, coupled with his opinion that she was less safe to drive, constituted sufficient evidence to authorize the trial court’s finding of guilt.

As the defendant argues in her motion for reconsideration, the officer never expressly opined that the driver’s “less safe” condition was due to the consumption of alcohol. But there is in the record some circumstantial evidence that Stone had consumed alcohol. The officer testified that, when he first stopped the vehicle and the defendant lowered her window, he smelled a strong odor of alcohol “coming from the vehicle.” Later he stated at three points in his testimony that he continued to smell a “strong odor of alcohol on her breath.” The evidence, including the videotape shown to the jury, was overwhelming that the defendant was impaired and was an unsafe driver. We hold that it was proper for the trial judge, sitting as the trier of fact, to infer from those two circumstances, the strong odor of alcohol and the obvious impairment, that the defendant was “[u]nder the influence of alcohol to the extent that it [was] less safe for the person to drive.”

Stone argues that Clay v. State supports the reversal of her conviction. The facts in Clay, however, are distinguishable. The defendant’s DUI conviction was reversed in Clay because the officer testified that the defendant’s speech was not slurred, he was not staggering, and that there was nothing unusual or erratic about his driving. The only evidence of guilt was the officer’s testimony that the defendant’s eyes were glassy and he had an odor of alcohol on his breath, which was contradicted by the defense witnesses’ testimony. In this case, as stated previously, the record shows that Stone was initially detained because of her erratic and unusual driving. Specifically, she drove through the checkpoint and almost hit Johnson. Also, Stone was swaying, disoriented, and confused. Finally, she was unable to answer simple questions. Accordingly, unlike Clay, the overwhelming evidence of guilt in this case supports the conviction.

2. Stone argues that the state relied upon her alleged refusal to take the breath test as evidence of the presence of alcohol. For this reason, she contends, the trial court abused its discretion when it precluded her expert witness’ testimony about the Intoxilyzer 5000 and the proper procedures pertaining to refusals of the breath test. The record does not support Stone’s contention that her refusal to take the breath test was the crux of the state’s case against her. As stated in Division 1, the testimony of Officer Johnson and the evidence on the videotape were sufficient to authorize Stone’s conviction. We note the conflicting evidence about Stone’s refusal to take the breath test when asked if she wished to do so at the pretrial detention center. On appeal, however, “[t]he credibility of witnesses and the weight accorded their testimony rest with the trier of fact. . . .” Thus, “the trial court’s findings on disputed facts and credibility must be accepted unless clearly erroneous.”

Though the “admissibility of evidence is a matter which rests largely within the sound discretion of the trial court,” we note that “Georgia courts favor the admission of any relevant evidence, no matter how slight its probative value.” Further, “greater latitude is permissible in the introduction of evidence in a bench trial.” We are surprised that the trial court in a bench trial in a criminal case was not more liberal in admitting whatever evidence, short of a filibuster, the defense wished to proffer. When making its decision, of course, the court would consider only the admissible evidence. But giving the defendant at a bench trial the benefit of close calls on the admissibility of evidence precludes the possibility of a reversal on appeal. Nonetheless, in light of the overwhelming evidence of Stone’s guilt in this case, we cannot find that the trial court’s exclusion of Stone’s expert testimony on the breath test requires the reversal of Stone’s conviction. At most, the exclusion of the evidence was harmless error. Accordingly, we affirm.

Decided December 15, 2000

Reconsideration denied February 22,2001.

Spruell, Taylor & Associates, Billy L. Spruell, Melinda D. Taylor, for appellant.

Joseph J. Drolet, Solicitor, Dawn Belisle-Skinner, Assistant Solicitor, for appellee.

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

       OCGA § 40-6-391 (a) (1).

        Shabazz v. State, 229 Ga. App. 465 (1) (494 SE2d 257) (1997).

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Barber v. State, 235 Ga. App. 170 (509 SE2d 93) (1998).

       Johnson testified, and the videotape confirms, that Stone’s passenger suggested that she participate in the tests.

        Waits v. State, 232 Ga. App. 357, 358 (1) (501 SE2d 870) (1998).

       Id.

       See Tomko v. State, 233 Ga. App. 20, 21 (1) (503 SE2d 300) (1998) (if the state were required to prove the results of a breath test, every case in which the court suppresses the test would be dismissed).

       Supra.

       Although this Court found the evidence was sufficient to sustain the conviction in Waits, the failure to charge the jury on circumstantial evidence was deemed reversible error. Waits, 232 Ga. App. at 359 (2).

       234 Ga. App. 332 (506 SE2d 685) (1998).

       Id. at 334 (3) (c).

       Id.

       OCGA § 40-6-391 (a) (1).

       193 Ga. App. 377 (387 SE2d 644) (1989).

       Id. at 379 (2).

       Defense counsel proffered that Dr. Citron was an expert in the Intoxilyzer 5000 and could testify about the procedure pertaining to refusals to take the breath test.

       After watching the videotape, Stone admitted during cross-examination that she told Officer Johnson that she would not take the breath test when initially asked if she wished to do so, but she asserted during the trial that she did not understand what was asked. Officer Johnson testified that when Stone was given the option to take the test while at the pretrial detention center, she made no attempt to participate. Stone testified, however, that she was never given the opportunity to take the test at the pretrial detention center.

       (Citations and punctuation omitted.) Taylor v. State, 239 Ga. App. 858 (522 SE2d 266) (1999).

       (Citations and punctuation omitted.) Rider v. State, 222 Ga. App. 602 (475 SE2d 655) (1996).

       (Citation omitted.) Kellogg v. State, 233 Ga. App. 817, 819 (505 SE2d 794) (1998).

        Evans v. State, 233 Ga. App. 879, 881 (3) (506 SE2d 169) (1998).

       Id.

       See Schaffer v. City of Marietta, 220 Ga. App. 382, 384 (2) (469 SE2d 479) (1996); Pardo v. State, 215 Ga. App. 317 (450 SE2d 440) (1994).


source: Caselaw Access Project

author: Blackburn, Chief Judge.

license: Public Domain

text:
    A00A1909.
    HERRON v. HOLLIS et al.
    (546 SE2d 17)
   Blackburn, Chief Judge.

Terry Herron, individually and as administrator of the estate of Cassidy M. Herron, appeals the trial court’s order granting summary judgment to Dennis L. Hollis. Herron brought the underlying action against Hollis and Debbie Herron for negligent supervision and negligence as a result of the drowning death of his daughter, Cassidy Herron, in a pool located at the home shared by Hollis and Debbie Herron, Cassidy’s mother. For the reasons set forth below, we affirm the grant of summary judgment to defendant Hollis.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). To obtain summary judgment, a defendant need not produce any evidence, but must only point to an absence of evidence supporting at least one essential element of the plaintiff’s claim. Our review of a grant of summary judgment is de novo, and we view the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmovant.

(Citation omitted.) Kirkland v. Pioneer Machinery. See also Lau’s Corp. v. Haskins.

Viewed in this light, the evidence establishes that after Terry and Debbie Herron’s separation, Debbie Herron moved with three-year-old Cassidy into Hollis’ house. Although the backyard was fenced, there was no fence separating an in-ground pool from the rest of the backyard. The record is uncontroverted that on the day of the incident while Hollis was taking a nap, Debbie Herron watched Cassidy. Debbie allowed Cassidy to go into the backyard where the pool was located. After Debbie watched Cassidy play for a little while, Debbie went back into the house without Cassidy. When Debbie looked out the window to check on Cassidy, Debbie saw the child’s play car floating in the pool, and she called to Hollis as she ran outside to find Cassidy. Debbie pulled Cassidy out of the pool. Tragically, Cassidy died the next day.

The trial court determined that Hollis was not liable for Cassidy’s death under a theory of negligent supervision because it was undisputed that Hollis was asleep at the time of the accident, and he had, therefore, not undertaken supervisory control of the child at that time. Additionally, the trial court determined that Hollis was not negligent as the owner of the pool and house. The trial court found that the deceased child was a licensee and that a landowner’s duty to a licensee was to prevent wilful or wanton injury. As there was no evidence that the injury to the deceased was wilful or wanton on the part of Hollis, there could be no liability based upon Hollis’ status as the landowner.

1. The trial court correctly determined that Hollis is not liable for Cassidy’s death under a negligent supervision theory.

As a general rule, a person who undertakes the control and supervision of a child, even without compensation, has the duty to use reasonable care to protect the child from injury. Such person is not an insurer of the safety of the child. He is required only to use reasonable care commensurate with the reasonably foreseeable risk of harm.

(Punctuation omitted.) Wallace v. Boys Club of Albany

Herron contends that because Hollis deposed that he generally participated in the parenting, supervising and disciplining of Cassidy he should be liable for negligently supervising her on the day of the incident. However, because it is undisputed that Cassidy was being supervised by her mother at the time of the incident, and Cassidy’s mother knew that Hollis was taking a nap, we must agree with the trial court that Hollis is not liable under a negligent supervision theory. “ ‘[I]t would normally be the duty of a parent or other adult having primary supervisory control over the child to see to it that a child would not be going into a place of obvious danger.’ ” Hemphill v. Johnson At the time of the incident, Cassidy’s mother had primary and exclusive supervisory control over Cassidy.

2. The trial court correctly granted Hollis’ motion for summary judgment on Herron’s claims involving premises liability. Gregory v. Johnson, cited by Herron, is distinguishable from the present case, because therein, the victim was a trespasser and the pool was not fenced in any manner. Additionally, the victim in Gregory was not being supervised. In the present case, Cassidy was being supervised by her mother. Therefore, this case is more similar to the facts in Wren v. Harrison,wherein we stated that “the duty of providing a safe playground for a child rests upon [her] parents.”

Although Herron contends that the trial court erred in determining that Cassidy was a licensee, we do not reach this issue because Hollis’ relationship with Cassidy required that he exercise reasonable care to protect her when she was in his care. When Hollis undertook supervisory responsibility, he became responsible for injury to Cassidy “through his negligence, and his duty to use reasonable care to protect the child is not measured by what his duty would have been to a social guest or licensee.” (Punctuation omitted.) Bunn v. Landers

“The measure of precaution that must be taken by one having a child in his care, who stands in no relation to the child except that he has undertaken to care for it, is that care which a prudent person would exercise under like circumstances. As a general rule, a person who undertakes the control and supervision of a child, even without compensation, has the duty to use reasonable care to protect the child from injury. Such person is not an insurer of the safety of the child. He is required only to use reasonable care commensurate with the reasonably foreseeable risk of harm.”

Bunn v. Landers, supra.

Although there is always a risk of harm when small children are playing in and around water, we must determine whether Hollis used reasonable care in leaving Cassidy under the supervision of her mother, knowing that an uncovered pool was present in the fenced-in backyard.

We have previously determined that a swimming pool is not a mantrap. See Hemphill, supra. The evidence establishes that Hollis spoke to Cassidy about the dangers of water and that Hollis did not leave Cassidy alone in the yard. On the day of the drowning, Hollis merely left Cassidy under her mother’s supervision. Additionally, there is no evidence that Cassidy’s drowning was caused by any defect in the pool. Although Herron contends that Hollis was aware that Cassidy was not afraid of the water, this fact is without weight under our present analysis because it was Cassidy’s mother who left her unattended by the swimming pool, not Hollis. Under the present circumstances, it is plain that it is not reasonably foreseeable that a mother would leave her three-year-old daughter unsupervised near an uncovered pool.

Herron contends that Hollis should have built a small fence around the pool in the exercise of reasonable care to protect Cassidy. However, no statute or ordinance requires such a fence, and Herron has cited to no case law which does so. Here, no ordinances have been violated. Hollis was not supervising the child at the time of the incident and was not otherwise negligent in a manner that contributed to the child’s death. The child’s mother, who was supervising the child at the time of the incident, was negligent in failing to do so. Hollis cannot be held responsible for the death of the child under these facts. To hold otherwise would be to make him strictly liable for injuries to the child which resulted from a failure of the child’s mother to properly supervise her.

The evidence is plain, palpable and indisputable that the proximate cause of Cassidy’s death was not any negligence of Hollis. Therefore, the trial court properly granted Hollis’ motion for summary judgment.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

Decided February 22, 2001.

Deming, Parker, Hoffman, Green & Campbell, Paul M. Hoffman, for appellant.

Tisinger, Tisinger, Vance & Greer, Glenn M. Jarrell, Julian M. Treadaway, for appellees.

        Kirkland, v. Pioneer Machinery, 243 Ga. App. 694, 695 (534 SE2d 435) (2000).

        Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

        Wallace v. Boys Club of Albany, 211 Ga. App. 534, 535 (1) (439 SE2d 746) (1993).

        Hemphill v. Johnson, 230 Ga. App. 478, 481 (2) (497 SE2d 16) (1998).

        Gregory v. Johnson, 249 Ga. 151 (289 SE2d 232) (1982).

        Wren v. Harrison, 165 Ga. App. 847, 849 (303 SE2d 67) (1983).

        Bunn v. Landers, 230 Ga. App. 744, 745 (2) (498 SE2d 109) (1998).


author: Miller, Judge.

text:
    A00A2252.
    GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY v. GASTER et al.
    (546 SE2d 30)
   Miller, Judge.

Georgia Farm Bureau Mutual Insurance Company issued a homeowner’s insurance policy to Bonnie Gaster. Albert F. Weis fell and was injured in Gaster’s home. Weis sued Gaster for damages, and Gaster demanded that Georgia Farm Bureau defend her under the homeowner’s policy. Claiming that Weis’s injuries came within the policy’s business pursuits exclusion clause, Georgia Farm Bureau brought this action seeking a declaration that it had no duty to defend Gaster against Weis’s claim. The trial court denied Georgia Farm Bureau’s motion for summary judgment and awarded summary judgment to Gaster and Weis sua sponte. Georgia Farm Bureau appeals. Since Weis’s injury falls under an exception to the policy’s business pursuits exclusion, we affirm.

We conduct a de novo review of a trial court’s grant of summary judgment. In so doing, we construe the evidence in favor of Georgia Farm Bureau to determine if any genuine issue of material fact exists and if Gaster and Weis are entitled to judgment as a matter of law. A trial court may grant summary judgment sua sponte so long as the grant is proper in all other respects, particularly the opportunity to be heard. Here the determinative issue was argued at length by both parties.

Under Georgia law, contracts of insurance are interpreted by ordinary rules of contract construction.

Three well known rules . . . apply. Any ambiguities in the contract are strictly construed against the insurer as drafter of the document; any exclusion from coverage sought to be invoked by the insurer is likewise strictly construed; and insurance contracts are to be read in accordance with the reasonable expectations of the insured where possible.

Where the terms are clear and unambiguous and capable of only one reasonable interpretation, the court is to look to the contract alone to ascertain the parties’ intent. The contract is to be considered as a whole, and each provision is to be given effect and interpreted so as to harmonize with the others.

Georgia Farm Bureau’s homeowner’s insurance policy excludes coverage for bodily injury or property damage “arising out of business pursuits of an insured.” The exclusion does not apply to “activities which are usual to non-business pursuits.” The policy defines “business” to include a “trade, profession or occupation.”

The record shows that Gaster worked as a realtor. She had an office in an upstairs bedroom in her home. She also maintained a separate office, and there were no signs outside the house indicating it was a place of business. Gaster normally presented offers to clients in their homes, but would occasionally meet with them at her residence. Gaster learned that Weis had property for sale, and she contacted him. On or about February 27 or 28, 1997, Weis came to Gaster’s house in order to pick up an offer on the property. Gaster had volunteered to go by Weis’s residence, but Weis suggested that he stop by Gaster’s home because he planned to be in the area.

Weis read through the documents while seated at Gaster’s dining room table. , Gaster then went upstairs to her office to make copies of the papers. While Gaster was making copies, Weis got up from the dining room table to look around. He decided to go look out a window and fell on the step leading down into the sunken living room. Weis claims the step was negligently maintained.

Georgia Farm Bureau argues that because Weis came to Gaster’s home to conduct business that the policy’s business pursuits exclusion applies. While we appreciate that but for Gaster’s profession as a real estate broker, Weis would not have been in Gaster’s home, the analysis does not end there. The policy’s business pursuits exclusion does not apply to activities which are “usual to non-business pursuits.”

In its ruling the trial court found Nationwide Mut. Fire Ins. Co. v. Collins to be instructive. A child burned her hand on the insured homeowner’s floor furnace grill and sued for damages. The child was in the home under an arrangement where her parents paid the homeowner $5 a day to care for her. The insurer brought a declaratory judgment action seeking a judgment that it owed no defense to the homeowner under the policy’s business pursuits exclusion clause. We held that the business pursuits exclusion provision did not apply because “babysitting for pinmoney” was not a commercial business. But we also noted that the policy did not apply to acts ordinarily incident to nonbusiness pursuits and the maintenance of heat by a floor furnace was an activity ordinarily incident to a non-business pursuit.

Collins was revisited in Alewine v. Horace Mann Ins. Co. , where we commented that “[pjroviding heat for a home in which a babysitter keeps children is clearly ‘non-business in nature,’ in that the home would be heated whether or not baby-sitting activities were pursued.” Similarly, the maintenance of residential premises is an activity usual and incident to home ownership, a nonbusiness pursuit. Clearly, the maintenance of Gaster’s step down into her living room would occur whether or not her real estate activities were being pursued.

Georgia Farm Bureau argues that to apply the policy’s nonbusiness pursuits exception here would be to interpret it so broadly as to render the business pursuits exclusion wholly ineffective. By example, they note that Weis’s act of walking could be considered usual to a nonbusiness pursuit in almost every situation. But Georgia Farm Bureau focuses on Weis’s action instead of the relationship between the injury and Gaster’s maintenance of the premises. Gaster’s maintenance of the residential premises was a normal nonbusiness activity.

In the authorities cited by Georgia Farm Bureau, the instrumentality of the injury in question was directly connected to the insured’s business pursuits activities, and so are not persuasive. The trial court did not err in granting summary judgment to Gaster and Weis.

Decided February 22, 2001.

Brennan, Harris & Rominger, Mason White, James D. Kreyenhuhl, for appellant.

Barrow & Sims, R. Stephen Sims, John G. Hunter, for appellees.

Judgment affirmed.

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

        Southern Gen. Ins. Co. v. Ross, 227 Ga. App. 191, 192 (489 SE2d 53) (1997).

       Id.

        Plantation Pipeline Co. v. Royal Indent. Co., 245 Ga. App. 23, 29-30 (4) (537 SE2d 165) (2000).

        Park ‘N Go of Ga. v. U. S. Fidelity &c. Co., 266 Ga. 787, 791 (471 SE2d 500) (1996).

       (Citations omitted.) Richards v. Hanover Ins. Co., 250 Ga. 613, 615 (1) (299 SE2d 561) (1983).

        Park ‘N Go, supra, 266 Ga. at 791.

        McCann v. Glynn Lumber Co., 199 Ga. 669, 674 (34 SE2d 839) (1945).

       136 Ga. App. 671 (222 SE2d 828) (1975).

       Id. at 671-672.

       Id. at 672.

       Id.

       Id. at 674.

       197 Ga. App. 479 (398 SE2d 756) (1990).

       Id. at 481.

        Larson v. Ga. Farm &c. Ins. Co., 238 Ga. App. 674 (520 SE2d 45) (1999) (injury-occurred on a cable car system that insured had been paid to construct on another’s property); Alewine, supra, 197 Ga. App. at 479 (the source of the injury was traced to the failure of a fence to enclose cattle, and the raising of cattle was a business); Dixon v. Midland Ins. Co., 168 Ga. App. 319 (309 SE2d 147) (1983) (the injury alleged was malicious prosecution, but the prosecution in question could be traced to a sale of a truck by the insured); Davis v. Frederick’s, Inc., 30 Utah.2d 321 (517 P2d 1014) (1973) (the insured injured a passerby when he opened the door to his workplace); Martinelli v. Security Ins. Co. of New Haven, 490 SW2d 427 (Mo. App. 1973) (the insured walked into another employee at their mutual place of work, injuring him).


author: Barnes, Judge.

text:
    A00A2441.
    POPE et al. v. BOARD OF COMMISSIONERS OF FULTON COUNTY.
    (546 SE2d 333)
   Barnes, Judge.

Webster R. Pope and Rita A. Lewis Devereaux (“the petitioners”) are former members of the Board of Tax Assessors of Fulton County who were relieved of their positions by the Fulton County Board of Commissioners under OCGA § 48-5-295 (b). This Code section permits a member of the cotrnty board of tax assessors to be removed by the county governing authority for cause. After the Board of Commissioners voted to remove them, they petitioned the Fulton County Superior Court for a writ of certiorari to review the Board of Commissioners’ decision. The petition named the Fulton County Board of Commissioners as the respondent, but did not name a defendant in certiorari. Within the time prescribed in OCGA § 5-4-6 (b), a copy of the petition was served on the Board of Commissioners by a deputy sheriff and the Board’s attorney was served by mail.

Subsequently, Fulton County, as a separate entity from the Board of Commissioners, moved to dismiss the petition because the petitioners failed to designate a defendant in certiorari in their initial petition and also failed to designate Fulton County, rather than the Board of Commissioners, as the defendant in certiorari. Thereafter, the petitioners amended the petition to name the Board of Commissioners as both the respondent and the defendant in certiorari. Nevertheless, the superior court granted the County’s motion based on the petitioner’s failure to name Fulton County as the defendant in certiorari in the original petition. From that decision the petitioners obtained authority under OCGA § 5-6-35 (a) (1) to file a discretionary appeal.

1. The petitioners argue that in removal proceedings under OCGA § 48-5-295 (b) the Board of Commissioners is both the respondent (the inferior judicatory) and the opposite party or defendant in certiorari (the county governing body). Therefore, they assert they were not required to name the Board of Commissioners as the defendant in certiorari. See Swafford v. Dade County Bd. of Commrs., 266 Ga. 646, 647 (2) (469 SE2d 666) (1996). They argue further that nothing in Fisher v. City of Atlanta, 212 Ga. App. 635 (442 SE2d 762) (1994), relied upon by Fulton County, can be fairly read as authority to the contrary.

Pretermitting whether the petitioners were required to name the Board of Commissioners as the defendant in certiorari as well as the respondent in the first instance, the petitioners amended their petition to name the Board of Commissioners as the defendant in certiorari before the case was dismissed. Because a petition for certiorari “shall be amendable at any stage, as to matters of form or substance” (OCGA § 5-4-10), a defendant in certiorari was named in this case.

2. Fulton County is not an essential party in this case. The dismissal of the petition for certiorari in Fisher was affirmed because the petitioner failed to serve the Civil Service Board as respondent as required by OCGA § 5-4-6 (b). Thus, this court affirmed the trial court’s dismissal of the petition for certiorari in Fisher because service on the City did not constitute service on the respondent Civil Service Board. Fisher held that this result was warranted because the City and the Board have conflicting interests: The Board is merely the respondent, but the City was a party to the dispute.

Fisher was correctly decided, as the Civil Service Board did not initiate or prosecute the proceedings before it, but sat solely as a judicial decision-maker in a dispute between the City and a civil servant. In this case, however, the Board of Commissioners performs a more expansive role. Under OCGA § 48-5-295, the tax assessors are appointed by the county governing authority for terms of office selected by that authority and may be removed by the county governing authority. In such circumstances, it is the Board of Commissioners, as the governing authority, which is the proper defendant in certiorari.

Here, however, unlike Fisher, the superior court was petitioned to review a quasi-judicial decision of the Board of Commissioners of Fulton County under OCGA § 48-5-295 (b). Because it appears that Pope and Devereaux’s petition for certiorari was procedurally sound, the superior court erred in dismissing the petition for lack of service on Fulton County. Therefore, the superior court’s dismissal of the petition for certiorari is vacated, and the case is remanded to the superior court for further proceedings.

Judgment vacated and case remanded.

Blackburn, C. J., and Eldridge, J., concur.

Decided February 22, 2001

Harman, Owen, Saunders & Sweeney, Timothy J. Sweeney, James R Robertson, Jr., for appellants.

Elarbee, Thompson & Trapnell, Richard R. Gignilliat, J. Lewis Sapp, Reddy & Silvis, K. Prabhaker Reddy, Franklin N. Biggins, for appellee.


text:
    A01A0099.
    GRANT v. THE STATE.
    (546 SE2d 339)
   Blackburn, Chief Judge.

Harvey Lee Grant appeals his conviction of the sale of cocaine contending that the evidence was insufficient to support his conviction and that the trial court erred in allowing the introduction of similar transaction evidence. For the reasons set forth below, Grant’s conviction is affirmed.

1. Grant contends that the State failed to produce sufficient evidence of the perpetrator’s identity in order to support his conviction.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Grant] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The . . . verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Punctuation omitted.) Kovacs v. State. See Jackson v. Virginia.

In the present case, both Agent Mark Brown, with the TriCircuit Drug Task Force, and Don Ellis, police informant, identified Grant as the person who sold cocaine to Brown. Immediately after the drug purchase, Brown described the perpetrator as a black male with a scar on his face, weighing approximately 180 to 200 pounds and measuring between five feet seven inches to five feet eleven inches tall. The description of Grant contained in Grant’s arrest report describes him as having four gold caps on his front upper teeth and a mustache. The arrest report does not mention a scar on his face. Grant contends that because the descriptions are different, he was not adequately identified. However, Agent Brown explained that the drug transaction occurred on February 20, 1998, and the arrest did not take place until June 23, 1998. So Grant’s appearance could have changed in that time.

Additionally, within an hour of the transaction, Agent Brown reviewed a photographic lineup compiled by another investigator. Agent Brown identified Grant’s picture as the perpetrator of the drug transaction. The jury also reviewed a videotape of the transaction. The videotape did not reveal Grant’s face; however, in the audio portion of the tape, the informant clearly refers to “Harvey Lee.” No evidence was presented regarding mistaken identity.

The jury properly resolved the issue of identification based upon the credibility of the witnesses. Kovacs, supra.

2. Grant contends that the trial court erred in admitting similar transaction evidence impugning his character.

The present crime was a drug buy on the street in Glennville. Agent Brown drove to the drug buy location with the police informant. They made two trips to the same location in a short period of time. Grant was present during the first transaction but was not directly involved. Upon Agent Brown’s return to the same area, the informant asked Grant to come to the car, and Grant refused. Grant told the informant to get out of the car. The informant got out of the car and joined Grant on the porch whereupon he purchased $20 worth of crack cocaine from Grant. Agent Brown informed Grant that he wanted to purchase $40 worth of crack cocaine. Grant told Agent Brown to get out of the car, but Agent Brown said he would toss the money on the ground and Grant could put the cocaine on the ground. Grant then approached the vehicle and made the sale.

The similar transactions were also sale of crack cocaine cases. Therein, Agent Hutchins and a police informant parked on a side street in Glennville, and the informant recognized Grant. The informant called to Grant to come over to the car, but Grant required the informant to get out of the car and come to him. The informant arranged for a buy of $400 worth of crack cocaine. While they waited for the cocaine, Grant walked over to Agent Hutchins’ car and talked about whether they wanted the cocaine in large or small rocks. A young man walked up to the car and handed Grant the cocaine. Grant then gave the cocaine to the informant and took $400 from Agent Hutchins.

The second similar transaction took place two weeks after the first one in the same location. Again, Agent Hutchins and a confidential informant were driving around looking for crack cocaine. After telling an unknown male that they were looking for crack, Grant approached the agent’s car with about 15 black males. An argument ensued because some of the men were accusing the agent of working with the Georgia Bureau of Investigation. Grant eventually made the sale of $500 in crack cocaine to the confidential informant, away from the agent’s car.

To render evidence of another crime admissible, two conditions must be satisfied. First, there must be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged, that proof of the former tends to prove the latter. [Additionally, the court is required] to find that the evidence will be introduced for an appropriate purpose and not to raise an improper inference as to the accused’s character.

(Punctuation, footnote and emphasis omitted.) Evans v. State. After these criteria are met, “the trial court retains the sound legal discretion to exclude relevant similar crimes evidence on the ground that its probative value is substantially outweighed by the danger of unfair prejudice.” (Punctuation omitted.) Smith v. State.

The exercise of this discretion requires that the court consider whether “the State’s need for the similar transaction evidence out-weights] the prejudice inherent to the defendant.” (Emphasis supplied.) Phillips v. State. “This consideration consists of at least two questions. First, is the issue for which the State is introducing the evidence a genuinely disputed issue? . . . Second, does the State need this evidence to prove the issue, or can the fact be proved otherwise?” Smith, supra at 292-293.

“Here, the State’s need for extrinsic evidence relevant to the disputed issue of identity is undisputed. The question is whether the extrinsic crime was sufficiently similar to the crime charged so as to have authorized the trial court to admit it in evidence.” Evans, supra at 580. On appeal, the trial court’s determination on the issue of similarity or connection of similar transaction evidence should not be disturbed unless it is clearly erroneous. Id.

In the present case, the trial court determined that (1) the similar transaction evidence was admissible to show identity, motive, and state of mind; (2) there was sufficient evidence to establish that the accused committed the independent offense; and (3) there was a sufficient connection of similarity between the independent offenses and the crime charged so that proof of the former tended to prove the latter. The trial court’s determination regarding the similarity of the independent offenses and the crime charged is not clearly erroneous.

Decided February 22, 2001.

Barbara J. Nelson, for appellant.

J. Thomas Durden, Jr., District Attorney, Joe G. Skeens, Assistant District Attorney, for appellee.

Both the independent offenses and the crime charged deal with purchases of crack cocaine from Grant standing on the streets of Glennville. In all instances, the police informant was required to leave the car, and Grant was reluctant to sell to the agents. These similarities are sufficient to support the introduction of the similar transaction evidence to prove identity, motive, and state of mind. Evans, supra.

Judgment affirmed.

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

        Kovacs v. State, 227 Ga. App. 870-871 (1) (490 SE2d 539) (1997).

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Evans v. State, 235 Ga. App. 577, 580 (3) (510 SE2d 313) (1998).

        Smith v. State, 232 Ga. App. 290, 292 (1) (501 SE2d 523) (1998).

        Phillips v. State, 215 Ga. App. 526, 527 (4) (451 SE2d 517) (1994).


text:
    A01A0116.
    ELLERBEE v. HAWES et al.
    (546 SE2d 332)
   Blackburn, Chief Judge.

Rodney Ellerbee appeals the trial court’s order granting summary judgment to defendant John Howard on his counterclaim in the underlying action. Ellerbee filed the underlying action against Howard, Mary Hawes and SunTrust Bank seeking, among other things, specific performance of a lease/purchase agreement originally executed between Ellerbee, as lessee, and Howard, as lessor. Howard filed a counterclaim for amounts he asserted were due under the lease/purchase agreement. The trial court granted summary judgment to Howard on his counterclaim. For the reasons set forth below, we reverse the trial court’s order.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Matjoulis v. Integon Gen. Ins. Corp.

Viewed in that light, the evidence reveals that Ellerbee and Howard entered a lease/purchase agreement with respect to the property located at 221 Concord Drive, Watkinsville. The agreement purported to last from October 6, 1992, through October 9, 1997. By its terms, the agreement set forth a specific amount of money for rent and a specific amount of money owed to Howard should Ellerbee exercise the option to purchase the property from Howard. The agreement further provided that the lessor had unqualified rights to assign the agreement, subject to the option to purchase.

On January 18, 1994, Howard sold the subject property to Mary Hawes. The contract for the sale of real estate prepared in connection with the sale of the subject property indicates that Howard was to assign the lease/purchase agreement to Hawes. Ellerbee was never informed of the sale of the property and continued to make lease payments under the agreement until he sought to exercise his option to purchase the property.

Ellerbee filed the underlying action for specific performance of the lease/purchase agreement. The parties entered into a consent order under which Ellerbee paid SunTrust Bank $86,373.74 to be applied toward payment of the indebtedness owed by Hawes to Sun-Trust, such indebtedness being secured by the subject. property. Hawes delivered a general warranty deed to Ellerbee conveying fee simple title to the subject property. The consent order set forth that Hawes and Howard were still entitled to file counterclaims against Ellerbee. Thereafter, Howard filed his counterclaim seeking to recover sums allegedly owed to him by Ellerbee on the lease/ purchase agreement. Hawes did not file a counterclaim. The trial court granted summary judgment to Howard on his counterclaim.

As a general rule, an action on a contract is brought by a party to it. Reaugh v. Inner Harbour Hosp., Ltd. Nevertheless, if one of the original contracting parties assigns all of its rights, title and interest in that contract to an assignee, the assignee is the real party in interest. Allman v. Hope. And, every action shall be prosecuted in the name of the real party in interest. OCGA § 9-11-17 (a).

(Punctuation omitted.) Walker v. Virtual Packaging.

In the present case, the evidence indicates that Howard sold the subject property and assigned his interests in the lease/purchase agreement to Hawes. Hawes is the real party in interest, and Howard has no standing to bring an action on the lease/purchase agreement. Goldgar v. North Fulton Realty Co. , cited by Howard, is inapposite as it involved a broker’s efforts to collect his commission on the sale of a house after the sale was rescinded. Based on the foregoing, the trial court erred in granting Howard’s motion for summary judgment.

Decided February 22, 2001.

Robert J. Huff, for appellant.

James C. Warnes II, for appellees.

Judgment reversed.

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

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

        Reaugh v. Inner Harbour Hosp., Ltd., 214 Ga. App. 259, 261 (3) (447 SE2d 617) (1994).

        Allman v. Hope, 200 Ga. App. 137, 138 (1) (407 SE2d 107) (1991).

         Walker v. Virtual Packaging, 229 Ga. App. 124, 127 (3) (493 SE2d 551) (1997).

        Goldgar v. North Fulton Realty Co., 106 Ga. App. 459 (127 SE2d 189) (1962).


text:
    A01A0163.
    NUNLEY et al. v. NUNLEY.
    (546 SE2d 330)
   Blackburn, Chief Judge.

In this partnership dispute regarding the operation of a hen farm, the plaintiffs, Ruben Nunley and R. L. Payne, appeal the trial court’s grant of defendant Steve Nunley’s motion for directed verdict based on the plaintiffs’ failure to introduce evidence of damages. On appeal, the plaintiffs contend that sufficient evidence was presented from which the jury could determine the amount of damages. For the reasons set forth below, we affirm the trial court.

A directed verdict is proper only if there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict. OCGA § 9-11-50 (a). In determining whether any conflict in the evidence exists, the court must construe the evidence most favorably to the party opposing the motion for directed verdict. The standard used to review the grant or denial of a directed verdict is the any evidence test.

Evans Timber Co. v. Central of Ga. R. Co.

In the present case, Ruben Nunley approached his nephew, I Steve Nunley, about forming a partnership to operate a hen farm.) The parties orally agreed that Steve Nunley would provide the start-up capital and the plaintiffs would manage and maintain the farm. The parties agreed to use all profits to pay off the mortgage entirely before the partners would realize any return on their investment. The partners got into a dispute over the terms of a proposed written partnership agreement, and the plaintiffs quit working the farm. The mortgage was not paid off, and, in fact, the farm had never produced enough income to make the yearly required payments on the mortgage.

The plaintiffs testified that they both worked on the farm for three years without any remuneration. The plaintiffs contend that they were entitled to their part of the partnership assets plus damages. However, the plaintiffs failed to present any evidence of the partnership’s accounting records, income tax returns, or capital contributions and expenses. Essentially, the only evidence before the jury indicated that the partnership never made a profit to be distributed. Furthermore, the plaintiffs were not entitled to recover under quantum meruit for the value of their services. See Kwickie/Flash Foods v. Lakeside Petroleum (recovery in quantum meruit is not authorized when the claim is based upon an express contract). See also OCGA § 14-8-18 (6).

In essence, the plaintiffs failed to present any evidence from which the jury could determine whether the partnership held any assets after the discharge of its liabilities. These facts were necessary pursuant to OCGA § 14-8-38 (a) and the terms of the partnership agreement. Although some financial evidence was referenced, no evidence was introduced showing the financial status of the partnership. “[T]he mere existence of conflicts in the evidence does not render a directed verdict erroneous if it was demanded either from proof or lack of proof on the controlling issues in the case.” Sheldon v. Ramey Builders. The trial court properly granted the defendant’s motion for directed verdict because the plaintiffs failed to present any evidence from which the jury could determine the remaining assets in the partnership in order to assess damages.

Decided February 22, 2001.

George J. Thomas II, for appellants.

Johnson & Ward, John C. Dabney, Jr., for appellee.

Judgment affirmed.

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

        Evans Timber Co. v. Central of Ga. R. Co., 239 Ga. App. 262 (1) (519 SE2d 706) (1999).

       The agreement provided the following terms: (1) Steve Nunley provided the capital for the down payment and obtained financing for the balance of the purchase price on a hen farm; (2) the plaintiffs were to manage the farm and to perform the necessary repairs to keep the farm at an acceptable standard; (3) all income produced on the farm was to be applied to the mortgage; (4) when the mortgage was paid off, three options were to be considered: (a) one party would sell the other party their share of the farm at a mutually agreeable price; (b) the farm would be sold for the highest price, and the proceeds would be divided after returning the down payment amount to Steve Nunley with 50 percent to Steve Nunley and 25 percent each to the plaintiffs; or (c) the parties would continue to operate the farm with the profits paying back the down payment to Steve Nunley then being split 50 percent to Steve Nunley and 25 percent to each plaintiff.

        Kwickie/Flash Foods v. Lakeside Petroleum, 246 Ga. App. 729 (541 SE2d 699) (2000).

        Sheldon v. Ramey Builders, 156 Ga. App. 670, 671 (1) (275 SE2d 743) (1980).


text:
    A01A0171.
    HAYWOOD v. THE STATE.
    (546 SE2d 325)
   Blackburn, Chief Judge.

Adrian Haywood appeals his convictions of possession of cocaine with intent to distribute and possession of cocaine with intent to distribute within 1,000 feet of a housing project. Haywood contends that the evidence was insufficient to support his conviction.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Haywood] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The jury’s verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Punctuation omitted.) Kovacs v. State. See Jackson v. Virginia

In the present case, the evidence reveals that Agent Mark Esquivel, Agent Spencer Hawkins and Commander Joey Autrey, members of the Southwest Georgia Drug Task Force, were patrolling Butler Street in Camilla looking for Haywood in response to information received. Upon their approach to Haywood, he began to run, and Agents Esquivel and Hawkins exited the vehicle to chase him. Agent Hawkins yelled, “Stop, police!” Haywood did not stop, and Agent I Hawkins continued to chase him in the southbound lane of Butler Street. During the chase, Agent Hawkins saw Haywood reach into his pocket, pull out a small bag containing a white solid material, put I the bag in his mouth and tear it open. Haywood threw three pieces of I white substance to the ground. Agent Hawkins yelled to the other [ agents that Haywood had thrown something to the ground. Agent! Hawkins apprehended Haywood over 476 feet from where the chase began. Agent Hawkins found $260 in Haywood’s pocket.

Commander Autrey testified that Haywood was standing in front of an apartment in Walker Homes when he was first seen. Walker Homes is a publicly operated low to moderate income housing project run by the Camilla Housing Authority. As Agents Hawkins and Esquivel began chasing Haywood, Commander Autrey put the car in reverse and followed. Commander Autrey backed his car into a driveway in front of Haywood, and Haywood pushed off the car and ran around the trunk. Commander Autrey recovered three pieces of crack cocaine and a torn plastic bag from the street. The cocaine had been flattened by passing vehicles, but was still shiny and bright white with no dirt on it. Commander Autrey further testified, as an expert in the field of drug law enforcement, that Haywood was charged with possession with intent to distribute because of his location, the amount of cash he was carrying in his pocket and its denomination and the amount of and the specific packaging of the cocaine. Haywood was charged with intent to distribute within 1,000 feet of a housing project because he was first seen on housing authority property and he did not run over 1,000 feet from such project before he was apprehended.

Although Haywood testified that he did not throw cocaine during the chase and that the officers saw the cap to his asthma inhaler fall to the ground, Commander Autrey testified that he did not find anything on the street except the cocaine. It is well settled that “ 'it is the prerogative of the jury to accept the defendant’s statement as a whole, or to reject it as a whole, to believe it in part, or disbelieve it in part. In the exercise of this discretion they are unlimited.’ ” Eason v. State.

1. Although mere possession of cocaine, without more, will not support a conviction for possession with intent to distribute,

“[w]e have considered various kinds of additional evidence as proof of intent to distribute, including drug measuring and weighing paraphernalia, the packaging of the contraband, possession of certain amounts or denominations of currency, a prior possession with intent to distribute conviction, and expert testimony that the amount of contraband possessed was consistent with larger amounts usually held for sale rather than for personal use.”

Tate v. State

Decided February 22, 2001.

Ernie M. Sheffield, for appellant.

J. Brown Moseley, District Attorney, Charles M. Stines, Assistant District Attorney, for appellee.

Here, the State offered evidence that the amount of money found on his person, the specific denominations of currency and the amount and specific packaging of the cocaine was all consistent with the intention to distribute cocaine. Based upon the evidence presented at trial, the jury was authorized to find that Haywood committed possession of cocaine with intent to distribute beyond a reasonable doubt.

2. Haywood contends that insufficient evidence was presented that the housing project where he was caught was a housing project as defined by OCGA § 16-13-32.5 (b). Such Code section provides:

It shall be unlawful for any person to . . . possess with intent to distribute a controlled substance ... in, on, or within 1,000 feet of any real property of any publicly owned or publicly operated housing project. . . . For the purposes of this Code section, the term “housing project” means any facilities under the jurisdiction of a housing authority which constitute single or multifamily dwelling units occupied by low and moderate-income families pursuant to Chapter 3 of Title 8.

Commander Autrey and Agent Hawkins testified that Haywood was apprehended within 1,000 feet of the housing project. Commander Autrey specifically testified that Walker Homes was a publicly operated low to moderate income housing project run by the Camilla Housing Authority. This testimony was sufficient to support Haywood’s conviction. See Menefee v. State (officer’s testimony that defendant’s actions took place within 1,000 feet of city-owned housing project sufficient).

Judgment affirmed.

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

        Kovacs v. State, 227 Ga. App. 870-871 (1) (490 SE2d 539) (1997).

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Eason v. State, 215 Ga. App. 614, 617 (8) (451 SE2d 820) (1994).

        Tate v. State, 230 Ga. App. 186, 187 (1) (b) (495 SE2d 658) (1998).

         Menefee v. State, 226 Ga. App. 725, 726-728 (2) (487 SE2d 489) (1997).


author: Mikell, Judge.

text:
    A01A0205.
    In the Interest of A. L. E. et al., children.
    (546 SE2d 319)
   Mikell, Judge.

The life of this mentally ill appellant unraveled after her husband was struck down by a massive stroke. Despite this tragic circumstance, we reluctantly affirm the termination of her parental rights. However, we remand for a hearing on appellant’s ineffective assistance of counsel claim.

This court has long recognized that termination of parental rights is a severe measure. There is no judicial determination which has more drastic significance than that of permanently severing a natural parent-child relationship. It must be scrutinized deliberately and exercised most cautiously. When we do this, we make a decision on human frailties and their consequences. It becomes an agonizing undertaking.

An appellate court must affirm a termination order if a rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost. We do not weigh the evidence or determine witness credibility but defer to the juvenile court’s factfinding. Moreover, we review the evidence in the light most favorable to the state.

So viewed, the evidence in the instant case shows that appellant suffered her first psychotic break in 1990 when she was 27 years old. Since then she has been hospitalized in psychiatric institutions at least eight times. Appellant and her husband were married in 1992, and T. S. E. was born on October 24, 1992. During appellant’s pregnancy with A. L. E., who was born on May 30, 1998, her physician became concerned about her behavior and contacted the Cobb County Department of Family & Children Services (“DFACS”). Appellant’s husband signed a safety plan, promising to provide supervision for appellant while she was caring for the children; however, appellant failed to take her medication and was left at home alone with the children. DFACS then provided intensive in-home assistance, which significantly improved appellant’s home life until March 18, 1999, when appellant’s husband suffered a massive stroke which left him totally paralyzed, save for the ability to blink his eyes. He became comatose and died on February 10, 2000.

Appellant’s mental condition quickly deteriorated after her husband’s stroke. On April 1, 1999, appellant left her children alone in the car in the hospital’s parking lot while she visited her husband. Hospital security called the police, and appellant was arrested and charged with two counts of deprivation. On May 3, when appellant arrived at the hospital with her children, she was intoxicated and tried to give her husband beer.

On May 14, 1999, the juvenile court entered an order finding the children deprived. The order, which was not appealed, reflects that appellant had not seen her treating psychiatrist, Dr. Klopper, for several months. The court ordered appellant to keep monthly appointments with Dr. Klopper, take her medication, and undergo counseling as recommended by Dr. Klopper. DFACS was awarded temporary custody of the children.

On June 5, appellant was arrested on a charge of reckless conduct after she checked her husband out of the hospital, against medical advice, to celebrate her birthday. Ten days later, the juvenile court held a review hearing and ordered appellant to attend supervised visitation with her children, to refrain from calling the children’s foster home, and to see the same psychiatrist on a regular basis.

Appellant was arrested for DUI on July 14, 1999. Shortly thereafter, she was arrested for theft by taking cigarettes and candy from a convenience store. At a hearing on August 24, the court suspended appellant’s visitation with her children. On September 7, 1999, the juvenile court found that appellant had failed to comply with portions of the court’s previous order, although apparently she attended supervised visits with her children.

On September 24, 1999, DFACS filed a petition to terminate parental rights, citing “aggravated circumstances that do not require the use of reasonable efforts to reunify the children with the parents.”

On October 7, 1999, appellant pleaded guilty to two counts of deprivation, reckless conduct, theft by taking, and DUI. She was credited for time served and placed on almost four years probation. As a condition of probation, appellant was required to undergo psychiatric evaluation as well as treatment for alcohol dependency. On January 27, 2000, appellant’s probation was revoked for falsely reporting a crime and failing to participate in an alcohol treatment program. She was incarcerated when her husband died on February 10 and was transported from jail to-attend the termination hearing on March 10, 2000.

The state called no witnesses at the hearing, relying instead on the deprivation orders, psychological evaluations, medical records from appellant’s psychiatric hospitalization in December 1999, and her criminal history, all of which were stipulated into evidence.

John T. Cooper, Ph.D., a clinical psychologist, testified on appellant’s behalf that it was premature to terminate her parental rights. Dr. Cooper explained that appellant suffers from schizoaffective disorder, which causes paranoia, delusions, hallucinations, and depression. However, Dr. Cooper testified, appellant had been misdiagnosed until September 1999 with bipolar disorder, and the correct diagnosis had not been explained to her. Therefore, he testified, she could not be blamed for refusing to take the wrong medication or to continue psychiatric treatment. Dr. Cooper described appellant as an “involved mother in tune with her children’s needs and wants.” He testified that with a proper education as to her diagnosis, as well as medication, therapy, and an alcohol abuse program, appellant could ultimately successfully parent her children. However, he admitted that it would take at least a year before appellant could resume custody.

Dr. Amy Holland, a psychiatrist, submitted a report concurring with Dr. Cooper’s findings. Dr. Holland concluded that appellant could be reunited with her children “if close supervision is in place and if she remains in ongoing psychiatric care.” However, we observe that Dr. Holland noted that in 1990, appellant had been diagnosed with schizophrenia and prescribed Trilafon, a medication she currently takes.

It does not appear that Dr. Cooper reviewed any of the medical records from appellant’s eight psychiatric hospitalizations. On the other hand, Dr. Jeffrey Pipe, a psychiatrist, reviewed the records of her month-long hospital stay in 1998. In a report dated September 1999, Dr. Pipe diagnosed appellant with schizoaffective disorder and stated that the illness caused disordered thinking, paranoid delusions, and manic/depressive episodes. Dr. Pipe explained that appellant “is vulnerable to paranoid ideation which escalates into delusional thinking” followed by “manic episode [s] during which she . . . becomes increasingly agitated and aggressive.” Dr. Pipe concluded that these episodes, which can last from “six months to years,” are likely to continue, and “during such episodes she is likely to compromise the welfare of her children. . . .” Finally, he stated: “In the unlikely event that [appellant’s] attitude [toward] her illness should change, strict compliance with a regimen of [medication] and individual therapy would . . . significantly improve her functioning.”

In December 1999, two months after Dr. Pipe’s evaluation, appellant was admitted to Georgia Regional Hospital due to her “delusional, paranoid, agitated and abusive behavior.” She also reported auditory hallucinations and that everyone was “out to get her, the Mafia is against her, and Freddie Kreuger is one of her family members.” Appellant was diagnosed as “Bipolar . . . manic with psychotic features.”

Dr. Sheri Siegel conducted a court-ordered evaluation on February 6, 2000. Dr. Siegel reported that during the interview, appellant’s “statements made little sense”; that testing revealed “serious psychological maladjustment” as well as difficulty managing routine daily affairs; that appellant’s intensive periods of depression and psychosis would “predominate throughout her life”; and that her resistance to fully acknowledging and treating her mental problems “would seriously compromise her ability to appropriately parent her children.” Dr. Siegel recommended termination of appellant’s parental rights.

Appellant testified and was subjected to lengthy cross-examination. After the evidence was presented, the children’s guardian ad litem recommended the termination of parental rights. After reviewing the evidence, the trial court agreed and ordered the termination.

1. The statutory criteria for the termination of parental rights are the two-step procedure provided in OCGA § 15-11-94 (a). The first step requires a finding of parental misconduct or inability, which requires clear and convincing evidence that: (1) the child is deprived; (2) lack of proper parental care or control is the cause of the deprivation; (3) such cause of deprivation is likely to continue; and (4) the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child. If these four factors are satisfied, the court must then determine whether termination of parental rights is in the children’s best interests, considering their physical, mental, emotional, and moral condition and needs, including the need for a secure and stable home.

First, the unappealed deprivation orders of the juvenile court demonstrate that the children were deprived. Second, in determining whether lack of proper parental care and control caused the deprivation, the juvenile court was authorized to consider several factors, two of which apply here: (i) “A medically verifiable deficiency of the parent’s physical, mental, or emotional health of such duration or nature as to render the parent unable to provide adequately for the physical, mental, emotional, or moral condition and needs of the child,” and (ii) “[e]xcessive use of or history of chronic unrehabilitated abuse of intoxicating liquors . . . with the effect of rendering the parent incapable of providing adequately for the physical, mental, emotional, or moral condition and needs of the child.”

As recounted above, the testimony of appellant’s own expert witness, coupled with medical reports admitted without objection, sufficed to establish her medically verifiable deficiency. Appellant’s own disjointed testimony further evidenced the ravaging effects of her mental illness. Appellant had difficulty focusing on her attorney’s questions during direct examination. On cross-examination, she testified that one of her previous employers had been involved with the Mafia and was after her sexually; that she has started hearing voices since her children were removed from her custody; that sheriffs came to her house and stole her husband’s wallet and checkbook; and that a nurse at the hospital assaulted her. “ A mental disability that renders a parent incapable of caring for the child is a valid legal basis for termination.’ ”

Next, we consider whether the evidence of appellant’s chronic unrehabilitated alcohol abuse rendered her incapable of parenting her children. Appellant testified that the pain of physical separation from her children caused her to “self-medicate” with alcohol. She said she drank herself to sleep every night after the children were taken away from her. Hospital records indicate that appellant reported abusing alcohol since age 18. Most significantly, appellant blamed DFACS, and not her illness, for the criminal charges against her:

A: I would never have had a DUI if my children were home and in bed sleeping that night and I wasn’t deciding to get up and go see my husband at 2:30 in the morning at the rehab center. It was only a .08, which is not drunk in anybody’s eyes except for a Breathalyzer’s, so I blame them [DFACS] for that.
Q: And is it still your testimony today, after having admitted to Dr. Cooper [to] being drunk ... on approximately a hundred occasions, plus having a DUI just last summer, that you’re not an alcoholic [?]
A: Yeah.

Finally, appellant testified that she preferred to remain in confinement rather than be released on probation. A condition of appellant’s probation is treatment for alcohol abuse. Moreover, the children were removed from her custody after she arrived with them at the hospital while in an intoxicated state.

Accordingly, we find the evidence that the children were without proper parental care and control clear and convincing. We also find the state proved by clear and convincing evidence that the causes of the children’s deprivation were likely to continue. “ Although past deprivation is not sufficient for termination without a showing of present deprivation, the court can consider a parent’s past conduct in determining whether such conditions of deprivation are likely to continue.’ ” Here, appellant testified that she would continue to take her medication as long as she could get it. She claimed that DFACS had dropped her from Medicaid over the summer, precluding her from taking her medication for a time. Dr. Cooper also expressed concern that appellant would stop taking her medication when she feels better, as she has in the past.

Additionally, the evidence shows that appellant will be unable to provide the necessities of life for her children after her release from jail. While confined, appellant’s home was foreclosed upon, her cars were repossessed, and she lost her job. No family member appeared on her behalf at the hearing, and apparently no one is available to provide support for appellant after her release. “Indeed, the record strongly supports a conclusion that the mother ‘is physically, emotionally, and financially unable to manage her own life, even without the added burden of. . . young, dependent child [ren].’ ”

Finally, although appellant does not argue this issue, our review of the evidence compels us to affirm the juvenile court’s conclusion that such deprivation will cause the children “serious physical, mental, emotional, or moral harm. . . .” Dr. Cooper testified that appellant has “no stress management skills whatsoever” and that in stressful situations she may not be able to appropriately parent her children. The juvenile court did not err.

2. Next we consider whether the state sustained its burden of proving by clear and convincing evidence that termination of appellant’s parental rights is in the children’s best interests. The state offered no evidence to indicate how the children were faring in foster care. However, the guardian ad litem represented to the court that he had continuing contact with the children and their foster mother, and he believed that termination was in the children’s best interests.

Decided February 22, 2001.

Joseph T. Justice, Scott P. Semrau, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Laura W. Hyman, Assistant Attorneys General, Sanders B. Deen, for appellee.

We are constrained to adhere to the longstanding rule that the same factors that show parental misconduct or inability can support a finding that termination of parental rights is in the children’s best interests. “ ‘[T]he decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.’ ” Sadly, appellant’s history of noncompliance with medication and treatment belies her promises of future compliance. Therefore, we conclude that the juvenile court’s determination that termination was in the best interests of the children was supported by the evidence.

3. Finally, appellant claims that her trial counsel rendered ineffective assistance. As appellate counsel was appointed after trial counsel filed the notice of appeal in this case, the ineffectiveness claim has been raised at the earliest practicable moment. In regard to the claim, appellant raises numerous issues that cannot be resolved under the present record. Therefore, we remand this case to the juvenile court for a hearing on appellant’s claim of ineffective assistance of trial counsel.

Judgment affirmed and remanded.

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

       (Citations and punctuation omitted.) In the Interest of J. A. B., 189 Ga. App. 79 (374 SE2d 839) (1988).

        In the Interest of A. C., 230 Ga. App. 395, 396 (1) (496 SE2d 752) (1998).

        In the Interest of L. H., 236 Ga. App. 132, 133 (1) (511 SE2d 253) (1999).

       Id.

       Appellant did not attend this hearing. It appears that she was in jail at the time, although the juvenile court was not aware of her incarceration.

       The procedure was previously codified at OCGA § 15-11-81 (a).

       OCGA § 15-11-94 (a), (b) (4) (A) (i)-(iv).

       OCGA § 15-11-94 (a); In the Interest of D. B., 242 Ga. App. 763, 764 (531 SE2d 172) (2000); In the Interest of A. M. V., 222 Ga. App. 528, 529 (474 SE2d 723) (1996).

        In the Interest of B. L. S., 239 Ga. App. 771, 774 (521 SE2d 906) (1999).

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

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

       See, e.g., In the Interest of J. W. H., 245 Ga. App. 468 (538 SE2d 112) (2000).

       (Citations omitted.) In the Interest of L. H., supra, 236 Ga. App. at 135 (1).

        In the Interest of S. C. M. H., 238 Ga. App. 159 (517 SE2d 598) (1999).

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

        In the Interest of R. N., 224 Ga. App. 202, 204 (1) (c) (480 SE2d 243) (1997).

       (Citation omitted.) In the Interest of J. H., 240 Ga. App. 309, 315 (523 SE2d 374) (1999).

       OCGA § 15-11-94 (b) (4) (A) (iv); In the Interest of S. C. M. H., supra.

        In the Interest of V.M.T, 243 Ga. App. 732, 736-737 (534 SE2d 452) (2000).

        In the Interest ofD. I. W, 215 Ga. App. 644, 646 (1) (451 SE2d 804) (1994).

       See In the Interest of J. B. A., 232 Ga. App. 345, 350 (501 SE2d 862) (1998).

        Glover v. State, 266 Ga. 183, 184 (2) (465 SE2d 659) (1996).

        Corbin v. State, 240 Ga. App. 788, 791 (4) (525 SE2d 365) (1999).


author: Phipps, Judge.

text:
    A01A0227.
    ARKWRIGHT v. TAULBEE.
    (546 SE2d 335)
   Phipps, Judge.

Henry Arkwright sued Karyl Taulbee to recover for damages to his car resulting from a collision with her car. Taulbee loaned her car to Fred Zeigler prior to the collision, but the car was being driven by Nijuma Dunbar when the collision occurred. According to Taulbee, Dunbar stole the car. Arkwright asserts that Zeigler loaned the car to Dunbar in exchange for drugs. Arkwright seeks to hold Taulbee liable under the family purpose and second permittee doctrines, as well as certain negligence theories. We find the evidence insufficient to sustain a recovery under Georgia law and affirm the trial court’s grant of Taulbee’s motion for summary judgment.

Summary judgment is proper when there is no genuine issue of material fact and the undisputed facts, taken in the light most favorable to the nonmoving party, warrant judgment as a matter of law in favor of the moving party. Summary judgment rulings are not based on weighing of evidence or on credibility of witnesses. Moreover,

evidence offered on motion for summary judgment is held to the same standards of admissibility as evidence at trial, and evidence inadmissible at trial is generally inadmissible on motion for summary judgment. Hearsay is never admissible and has no probative value unless it comes within a recognized exception to the rule. [Cit.]

To obtain summary judgment, a defendant must point to an absence of evidence supporting at least one essential element of the plaintiff’s claim. Consequently, summary judgment is properly granted to the defendant if the evidence is insufficient as a matter of law to support a finding necessary to establishment of the plaintiff’s claim.

In this case, the following facts are undisputed.

Taulbee loaned her car to Zeigler, who lives with her and is the father of two of her three children. He has a history of criminal convictions for various nondrug offenses and was arrested for driving with a suspended license after the collision in this case. He was released from prison and placed on parole approximately two months prior to the collision. Several hours before the collision, Zeigler telephoned Taulbee and told her that he was at a pool hall and had locked the keys in the car.

At the time of the collision, Dunbar, a convicted seller of cocaine, was driving the car with two passengers. While driving the car, Dunbar ran a stop sign and collided with a car being driven by Walter Young but claimed to be owned by Arkwright. Taulbee did not know Dunbar and had not given him permission to drive her car. Following the collision, Dunbar and one of the passengers fled the scene leaving the keys in the ignition. When the police informed Taulbee of the collision, she stated that she had let a friend “hold” the car.

1. Although Zeigler testified that the car had been stolen from where he had parked it and that he did not know Dunbar and had not given him permission to drive the car, Arkwright asserts that Zeigler had loaned the car to Dunbar in exchange for crack cocaine. There is insufficient evidence to support such a finding.

The evidence relied on by Arkwright consists of a newspaper article regarding a practice by local drug users of paying for crack cocaine by loaning their cars to the dealers and then reporting the cars as stolen, as well as testimony by one of Dunbar’s passengers that he had told her that someone let him “hold” the car. This evidence is hearsay and without probative value.

The only competent evidence adduced by Arkwright in support of his claim that Dunbar did not steal the car is found in Young’s testimony that there were no visible signs of forced entry. There is also an absence of evidence that anything was taken from the car or that the car was ever reported as stolen.

2. As a matter of law, the second permittee doctrine provides no basis for imposing liability against Taulbee.

“The ‘second permittee’ doctrine provides that when a third person uses a car via another person who did have permission to use the car, this is a permissive use under the [omnibus clause of an automobile liability] insurance policy as long as ‘the use falls within the scope of the permission.’ [Cit.]”

The fact that a car is being driven by one person or another with the owner’s permission does not, in and of itself, establish a basis for imposition of liability against the owner for the negligence of the permittee. Instead, it provides grounds for holding that an accident is covered under the owner’s automobile policy.

3. There is insufficient evidence to support a recovery against Taulbee under the family purpose doctrine.

For the family purpose doctrine to be applicable to impose vicarious liability on the owner for the negligence of the driver, various factors must be present. Among other things, the driver must be a member of the defendant’s immediate household, and the automobile must have been driven with the permission or acquiescence of the defendant. The family purpose doctrine does not apply here, because it is undisputed that Dunbar was not a member of Taulbee’s household, and “[t]his is not a case where family purpose liability could be predicated upon facts showing that the member of the immediate household who was given permission to drive the car was present in the car and permitted a third person to drive the car. [Cit.]”

4. Therefore, in order for Arkwright to hold Taulbee liable for damages to the car, he must show that she was guilty of some negligent act which proximately contributed to the damage.* Arkwright seeks to hold Taulbee liable under the negligent entrustment doctrine and on a legal theory referred to as “special circumstances.”

(a) Under the “special circumstances” theory, an owner who leaves his or her vehicle in a high crime area and negligently allows it to be stolen may be held liable for injuries resulting from the subsequent negligent operation of the vehicle by the thief. We have, however, rejected this theory of liability. Moreover, if anyone were negligent in allowing the car to be stolen, it would have been Zeigler rather than Taulbee.

(b) Under the negligent entrustment doctrine,
a party is liable if he entrusts someone with an instrumentality, with actual knowledge that the person to whom he has entrusted the instrumentality is incompetent by reason of his age or inexperience, or his physical or mental condition, or his known habit of recklessness. [Cits.]

Because there is no evidence of any actual knowledge by Taulbee that Zeigler was an incompetent or reckless driver for any of the above reasons and no evidence that negligence by her in entrusting the car to Zeigler was the proximate cause of the collision, the trial court did not err in granting summary judgment to Taulbee on Arkwright’s claim of negligence.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

Decided February 22, 2001.

Randall A. Schmidt, for appellant.

Brennan, Harris & Rominger, Mason White, James D. Kreyenbuhl, for appellee.

        Brown v. Allied Printing Ink Co., 241 Ga. App. 310 (526 SE2d 626) (1999).

        Jenkins v. Brice, 231 Ga. App. 843-844 (499 SE2d 734) (1998).

        Barich v. Cracker Barrel &c., 244 Ga. App. 550, 551 (1) (536 SE2d 221) (2000).

        Bendock v. Traton Corp. of Cobb, 244 Ga. App. 110, 111 (534 SE2d 849) (2000).

       See Chrysler Corp. v. Batten, 264 Ga. 723, 726-727 (3) (450 SE2d 208) (1994).

        Sanders v. State, 138 Ga. App. 774 (1) (227 SE2d 504) (1976) (newspaper article is hearsay); Hurston a State, 194 Ga. App. 226 (390 SE2d 119) (1990) (testimony considered hearsay if the witness is testifying to another party’s statement in order to prove or demonstrate truth of matter asserted in statement).

        Prudential Property &c. Ins. Co. v. Walker, 219 Ga. App. 84, 85 (1) (464 SE2d 230) (1995); compare State Farm &c. Ins. Co. v. Porter, 186 F2d 834, 839 (9th Cir. 1950) (citing rule in California that if owner’s permittee has entrusted automobile to another, latter’s use is automatically deemed to be with owner’s permission).

        Wingard v. Brinson, 212 Ga. App. 640, 641 (1) (442 SE2d 485) (1994).

       id.

        Parker v. Jester, 244 Ga. App. 494, 496 (2) (535 SE2d 814) (2000).

        Price v. Big Creek of Ga., 191 Ga. App. 534, 535 (382 SE2d 356) (1989).

        See Robinson v. Pollard, 131 Ga. App. 105, 106 (1) (205 SE2d 86) (1974).

        Price, supra; Robinson, supra.

         (Footnote omitted.) Gunn v. Booker, 259 Ga. 343, 347 (3) (381 SE2d 286) (1989).

       See Harvey v. Taylor, 193 Ga. App. 172, 174 (387 SE2d 403) (1989).

       See Seymour v. Vaughn, 181 Ga. App. 604 (353 SE2d 91) (1987); see also Williams v. Britton, 226 Ga. App. 263 (485 SE2d 835) (1997); compare Chester v. Evans, 115 Ga. App. 46 (153 SE2d 583) (1967).


author: Eldridge, Judge.

text:
    A01A0324.
    DUNN v. THE STATE.
    (546 SE2d 27)
   Eldridge, Judge.

A Murray County jury found Michael Lynn Dunn guilty of criminal attempt to commit armed robbery, conspiracy to commit armed robbery, and conspiracy to possess marijuana — more than an ounce. At sentencing, the trial court merged the criminal attempt count into the offense of conspiracy to commit armed robbery. Challenging the sufficiency of the evidence against him, Dunn contends the State (1) failed to prove the elements of conspiracy to commit armed robbery, and (2) failed to prove that the weight of the marijuana in question was more than an ounce. We disagree and affirm Dunn’s conviction.

Dunn was indicted along with four other co-defendants. Three of the co-defendants pled guilty prior to trial and testified against Dunn. The evidence established, inter alia, that one of Dunn’s co-defendants sold marijuana for the victim and knew he “had large quantities of marijuana in his house.” Knowing this, Dunn and the other co-defendants planned “to steal [the victim’s] drugs, his marijuana.”

In furtherance of this plan, Dunn and the other co-defendants drove to a locale outside the victim’s trailer park in the early morning hours of December 1, 1999. He and two of the co-defendants hiked “a pretty long way” to the victim’s trailer. They approached the trailer wearing ski masks and gloves. They were armed with “a pistol apiece.” Specifically, Dunn was carrying a .380 automatic pistol and was wearing a camouflage mask and gloves. The men cut the victim’s telephone wires and “popped” out the porch light.

Apparently nervous about whether to go through with the robbery, Dunn and his two companions left the trailer and hiked back to the car. The five co-defendants then drove into the driveway of a house belonging to the parents of one of the co-defendants. Dunn and the others argued about whether to go through with the plan. Eventually, Dunn and two of the co-defendants went to the store for cigarettes. When they returned, it was resolved that they would all return to the victim’s residence.

The five drove to the same locale outside the victim’s trailer park. Dunn and the two co-defendants who had gone to the victim’s residence during the first attempt got out of the car. “[A]nd [Dunn] . . . said that he didn’t want to go back down there, and he passed the .380 to [another co-defendant]. ... He said he couldn’t make the run or the walk or whatever.” Dunn also gave a co-defendant the camouflage gear he was wearing during the first attempt.

The two co-defendants hiked back to the victim’s trailer and entered the home through a window that they broke out with a piece of wood. The victim heard them. He let his Rottweiler dog loose on the intruders. The co-defendants shot the dog and fired three more shots at the victim in rapid succession. The victim was hit twice. He died from gunshot wounds to the body.

The two co-defendants ran back to the car. Out of breath, they told the occupants to “go, drive.” Thereafter, “we got a little way down the road and I [co-defendant] said, ‘He’s dead, man, you know. He’s dead.’ And then everybody was just kind of quiet and then everybody was conversating about it, you know, and what we was going to do.” The guns, gloves, and masks were hidden in a clothes dryer. The co-defendants’ “conversating” did not include a conversation with law enforcement about what had occurred until a week later, when an intensive investigation surrounding the victim’s death eventually led to interviews with each of them. After statements were taken and investigated, the five were arrested and charged accordingly. A search of the victim’s home immediately following the homicide revealed a quantity of marijuana in a bedroom nightstand. A stipulation signed by all parties was put before the jury during trial which specified the weight of the marijuana as 125.6 grams or 28.35 ounces. Held:

We evaluate Dunn’s challenge to the sufficiency of the evidence under the standard of Jackson v. Virginia, construing the evidence in the light most favorable to the verdict. We do not weigh the evidence or determine the credibility of the witnesses. As long as some competent evidence, even though contradicted, supports each element of the State’s case, we must affirm the judgment on the jury’s verdict.

1. A participant to a crime may be convicted although he is not the person who directly commits the crime.

A person who intentionally aids or abets in the commission of a crime or intentionally advises, encourages, hires, counsels, or procures another to commit the crime may be convicted of the crime as a party to the crime. Mere presence at the scene is not sufficient to convict one of being a party to a crime, but criminal intent may be inferred from conduct before, during, and after the commission of a crime. Whether [Dunn] was a party to the crime and aided and abetted his co-defendants in the crimes for which he was indicted or intentionally advised, encouraged, or counseled his co-defendants to commit the crimes was a question for the jury.

Here, the evidence established that Dunn was involved in the initial plan to commit armed robbery at the victim’s residence and take marijuana therefrom; that Dunn directly participated in the first attempt to commit armed robbery at the victim’s residence; that he returned to the locale near the victim’s residence with his co-defendants, knowing that an armed robbery was again going to be attempted; that he furnished his own weapon, mask, and gloves to one of the co-defendants who was to perpetrate the armed robbery; that he remained at the car awaiting the return of the perpetrators and the anticipated fruits of the armed robbery; and that, thereafter, he did not reveal the commission of the offenses to law enforcement. We find this evidence sufficient for a rational trier of fact to find Dunn guilty beyond a reasonable doubt as a party to the crime of conspiracy to commit armed robbery.

2. Even while acknowledging the fact that the parties stipulated to the weight of the marijuana found in the victim’s nightstand as 28.35 ounces, Dunn contends that “the State failed to present evidence to demonstrate the quantity of marijuana sought to he possessed [by the co-defendants] was greater than one ounce in weight.” (Emphasis supplied.) This argument is premised on the fact that the co-defendants who testified against Dunn established only that the group’s plan was to steal the victim’s marijuana, and no specific amount of marijuana was mentioned.

Dunn’s contention, then, encompasses the notion that the perpetrators would break into the victim’s residence; engage the victim’s Rottweiler dog; place the victim at gunpoint; demand his marijuana; and then deliberately cull through the 28.35 ounces of marijuana in order to remove less than an ounce before effectuating their escape. However, we find that a rational trier of fact could infer from the group’s Imowledge that the victim kept “large quantities of marijuana in his house,” and from their general plan to “steal the victim’s marijuana” at gunpoint, that the group intended to take all of the marijuana available, i.e., 28.35 ounces. We do not find it irrational for the jury to believe that the perpetrators would not commit a major felony like armed robbery in order to then selectively remove only a misdemeanor amount of marijuana. Criminal intent may be inferred from all of the circumstances connected with the act for which the accused is being prosecuted, and such intent is a question for the jury to determine. They did so. The evidence, with all reasonable inferences drawn therefrom, is sufficient to support the jury’s determination.

Decided February 22, 2001.

Jerry W. Moncus, for appellant.

Kermit N. McManus, District Attorney, for appellee.

Judgment affirmed.

Andrews, P. J., and Miller, J., concur.

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Glore v. State, 241 Ga. App. 646 (1) (526 SE2d 630) (1999).

       OCGA § 16-2-20.

       (Punctuation omitted.) Arrington v. State, 244 Ga. App. 529, 530-531 (536 SE2d 212) (2000).

        Palmer v. State, 243 Ga. App. 656, 657 (533 SE2d 802) (2000).