text:
    A01A2121.
    LEE v. THE STATE.
    (562 SE2d 800)
   Blackburn, Chief Judge.

Domenic Lee appeals his convictions of trafficking in cocaine, possession of marijuana with intent to distribute it, and driving without a license, contending that: (1) he was denied due process and the assistance of counsel during a critical stage of the proceedings by not having counsel at his arraignment and (2) he was denied due process and the effective assistance of counsel by the trial court’s refusal to grant a continuance of the trial. Finding no error, we affirm.

Lee was arrested on April 24, 2000. The same day, he indicated on the standard form headed “Application for Appointment of Counsel and Certificate of Financial Resources” that he could afford a lawyer and did not want the court to provide one. Sometime later that month, he was released on bond. On June 6, 2000, an accusation was filed, and, on July 20, 2000, Lee waived indictment and pled not guilty. Lee appeared without an attorney on the latter date. The record before us, however, is devoid of other indications about what may have occurred on July 20, 2000, except that the order denying Lee’s motion for a new trial states that, on that date,. Lee “refused court appointed counsel” and “[the] case was set for trial on Monday, September 18, 2000.”

Lee’s trial attorney, Michael Edmunds, testified at the hearing on Lee’s motion for a new trial that Lee hired him on the previous Friday — i.e., September 15. Edmunds further testified that he appeared in court on Monday, and he was given until the following Thursday, September 21, to prepare for trial. On September 21, Edmunds filed a written motion for continuance, but at the conclusion of a bench conference it was denied. The only thing in the motion that relates at all to Lee’s contentions on appeal with respect to his arraignment is a statement that “Mr. Lee was unable to retain counsel until September 17, 2000, due to the fact he did not have ample funds to retain an attorney.” We find no indication in the record that Lee or his attorney raised any issue regarding the arraignment procedures prior to Lee’s conviction, and Lee does not claim that he did. Cf. Spear v. State (“any error in the lack of arraignment was waived by Spear’s failure to raise the issue prior to verdict”). Thereafter, the court proceeded to hear (and deny) a motion to suppress and then tried the case. It appears that this motion had not been filed at or before arraignment as required by Uniform Superior Court Rule 31.1, as Lee’s trial attorney testified on Lee’s motion for a new trial that no motions were filed at arraignment, and the State does not dispute this assertion. In any event, the prosecution made no objection to consideration of the motion.

1. As noted above, Lee contends that he was denied due process and the assistance of counsel during a critical stage of the proceedings by not having counsel at his arraignment (or without having properly waived his right to counsel). In Ledford v. State, we stated that “[arraignment is a critical stage in a criminal prosecution.”

Here, Lee does not challenge the sufficiency of the evidence on appeal. Bache v. State. We emphasized the need for a showing of harm in cases such as this:

“[R]eversal is by no means automatic for absence of counsel [at arraignment]. The harmfulness of counsel’s absence must appear. . . .” Further, “an appellate court, using the appropriate standard, may find in a particular case that error committed by the trial court was constitutionally harmless, without remanding the case for further proceedings.” In the case sub judice, defendant argues that “(i)f (he) had been represented by counsel at Arraignment he would not have signed a waiver of his right to trial by jury, and he would have filed appropriate motions, demurrers, and pleas, which could have been beneficial to his defense.” However, defendant fails to explain what “motions, demurrers, and pleas” would have enhanced his defense and he does not challenge the sufficiency of the evidence on appeal. . . . [T]he record indicates, beyond a reasonable doubt, that no harm resulted in accepting defendant’s plea of not guilty in the absence of defense counsel.

(Citation omitted; emphasis in original.) Id. at 592 (1), (2).

Here, the record does not indicate what harm resulted from any error in proceeding in the absence of counsel. As noted above, the order denying Lee’s motion for a new trial states that at the arraignment, “Defendant refused court appointed counsel.” The law requires that “[t]he harmfulness of counsel’s absence must appear.” Bache, supra at 592 (1). See Babb v. State, where we remanded the case upon a finding of prejudice to the defendant. Lee “fails to explain what [actions by counsel at arraignment] would have enhanced his defense.” Bache, supra. This enumeration lacks merit under the facts of this case.

2. Lee also argues that he was denied due process and the effective assistance of counsel by the trial court’s refusal to grant a continuance of the trial. It is a rule of criminal procedure, however, that “[i]n all cases, the party making an application for a continuance must show that he has used due diligence.” OCGA § 17-8-20. See Foote v. State (“[w]here it affirmatively appears that the possible time for investigation and preparation of the defense is short, and the defendant has not been dilatory in obtaining counsel, the discretion of the court on motions for postponement should be liberally exercised in favor of a fair trial”) (emphasis supplied); Patterson v. State (finding no error in denial of continuance; after quoting OCGA § 17-8-20, we wrote, “[t]he defendants . . . proffered no evidence that they had exercised . . . due diligence, nor did they explain their delay in hiring counsel”); Marion v. State (no error in denial of continuance requested because of recent retention as counsel; OCGA § 17-8-20 quoted and Patterson, supra, cited); accord Turner v. State.

Lee failed to show such due diligence. Lee, who had refused counsel, failed to make arrangements for representation until the eve of trial, nearly two months after arraignment and five months after arrest. “[W]here defendant negligently failed to employ counsel promptly . . . , the burden of convincing the court that due diligence has been exercised is that of the movant. . . . OCGA § 17-8-20.” (Punctuation omitted.) Tinker v. State. In this connection, it should be noted that the only thing in Lee’s motion for a continuance bearing on diligence is a statement that he was “unable to retain counsel until September 17, 2000, due to the fact he did not have ample funds to retain an attorney.” Moreover, generally, “[w]hether a defendant has exercised due diligence in hiring counsel is a factual question, and the trial court’s grant or denial of a continuance on this basis will not be disturbed absent an abuse of discretion.” Id.

Decided March 25, 2002

Robert M. Goldberg, James C. Bonner, Jr., for appellant.

Richard G. Milam, District Attorney, Paul E. Hemmann, Assistant District Attorney, for appellee.

Additionally, “[a] 11 applications for continuances are addressed to the sound legal discretion of the court.” OCGA § 17-8-22. In particular, “[a] motion for continuance based on counsel’s claim of insufficient time to prepare for trial is addressed to the sound legal discretion of the trial court.” (Punctuation omitted.) Patterson, supra at 441 (1). See also Marion, supra at 414; Foote, supra. Moreover, “[t]he refusal of a motion to continue will not be reversed unless it is manifest that there has been an abuse of discretion on the part of the trial judge.” (Punctuation omitted.) Patterson, supra. See also Marion, supra. On the facts presented by this record, we find no abuse of discretion.

Judgment affirmed.

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

       See Uniform Superior Court Rule 29.3 (D).

       The waiver and plea are signed only by the district attorney (or his representative) and Lee, the line labeled “Defendant’s Attorney” being blank. The attorney who represented Lee at trial testified at the hearing on Lee’s motion for a new trial that Lee was not represented at his arraignment, and the State does not dispute this assertion.

        Spear v. State, 270 Ga. 628, 632 (5) (513 SE2d 489) (1999).

        Ledford v. State, 247 Ga. App. 885, 887 (545 SE2d 396) (2001).

        Bache v. State, 208 Ga. App. 591 (431 SE2d 412) (1993).

        Babb v. State, 252 Ga. App. 518, 520-521 (6) (556 SE2d 562) (2001).

        Foote v. State, 136 Ga. App. 301 (1) (220 SE2d 786) (1975).

        Patterson v. State, 202 Ga. App. 440 (1) (414 SE2d 895) (1992).

        Marion v. State, 224 Ga. App. 413, 414-416 (1) (480 SE2d 869) (1997).

        Turner v. State, 247 Ga. App. 775, 780 (5) (544 SE2d 765) (2001).

        Tinker v. State, 218 Ga. App. 792, 794 (1) (b) (463 SE2d 368) (1995).


source: Caselaw Access Project

author: Blackburn, Chief Judge.

license: Public Domain

text:
    A01A2419.
    BAILEY v. THE STATE.
    (562 SE2d 803)
   Blackburn, Chief Judge.

James Edward Bailey was tried by a jury and found guilty on two counts of aggravated assault. He appeals, contending that there was insufficient evidence to convict him and that his counsel should have been allowed access to documents with which a witness for the State refreshed her memory. We affirm.

1. Bailey argues that there was insufficient evidence for the jury to find him guilty of either of the counts of aggravated assault, placing particular emphasis on the fact that his conviction was based on the testimony of Simone Kellacher, one of the victims, who has since recanted her testimony.

The issue when reviewing a conviction for sufficiency of the evidence is whether, based on the evidence presented, a rational finder of fact could have found the accused guilty of the charged offenses beyond a reasonable doubt. Leaving the resolution of conflicting or contradictory testimony and the credibility of the witnesses to the jury, we construe the evidence in favor of the jury’s verdicts. In this regard, even though a witness may recant on the stand, [her] prior inconsistent statements constitute substantive evidence on which the jury may rely.

(Footnotes omitted.) Gunsby v. State.

Viewed in this light, the evidence shows that on the evening of May 3, 1996, Bailey and Kellacher attended a cook-out at the home of Scott White and Robin Howard. Bailey and Kellacher each drove to the cook-out from the home of Kellacher’s mother. Bailey drove his light blue Ford pickup truck, and Kellacher and her ten-month-old daughter, Savannah Bailey, rode in her Pontiac Grand Am. Sometime between 10:00 and 11:00 p.m., Bailey, White, and another man left White’s trailer. They spent most of the night drinking beer and did not return until approximately 6:30 a.m., bringing White’s mother-in-law and sister with them.

Upon their return, Kellacher, upset and angry with Bailey, went outside to confront him. She found him in the back of White’s car with White’s sister. After a heated argument, Kellacher put Savannah into the car and left, driving toward Alma on Highway 32. Bailey followed her and, at some point, caught up with her and rammed her car on the driver’s side. Kellacher came to a stop on the side of the road. Unable to get into the car, Bailey took a shovel from his truck and began beating on the windshield of Kellacher’s car, finally knocking a hole in the windshield on the passenger side where Savannah lay in her car seat. After the windshield broke, Kellacher got the car started and drove away. She stopped at a convenience store and called 911. Her conversation with the 911 operator was recorded and played at trial for the jury. In that conversation, she told the operator that Bailey had rammed her car, forced her off the road, broken her windshield, and threatened to kill her before she could get back to Alma. She also said that she had removed the pieces of broken glass from her baby and that the baby appeared to be unharmed.

The first officer to respond to the 911 call was Officer Lance Pierce of the Glynn County Sheriff’s Office. When he arrived on the scene, he found Kellacher sitting on the curb with Savannah. The door on the driver’s side of her car had been rammed in, the windshield was broken, and there was glass on the front seat and in the infant car seat. Kellacher repeated to Pierce what she had told the 911 operator. She later took him to the site on Highway 32 where Bailey had forced her off the road. Also called to the scene was Detective Nanci Taylor, who spoke with Kellacher and photographed the car and its contents. These photographs show the damage to the side of the car, the shattered windshield, and the glass in the front passenger seat. A third Glynn County police officer who was called to the convenience store was Jim Kelly, leader of the major accident investigative team. Kelly, who was tendered and accepted without objection as an expert in the field of accident investigation and accident reconstruction, testified that the damage to the driver’s side door was recent because flakes of the paint were still present and the exposed metal had not begun to oxidize. He also testified that there was light blue transfer paint on the side of Kellacher’s vehicle, indicating that it had been struck by a light blue vehicle. He testified further that the damage to the windshield had been caused by a blunt instrument striking the windshield from the outside.

The evidence in this case was sufficient under the standard of Jackson v. Virginia to authorize the jury’s verdict beyond a reasonable doubt on both counts.

2. Bailey contends that the trial court erred in not allowing his ‘ trial counsel to examine the documents which were contained in a State’s witness’ case file. We disagree. Testimony revealed that the witness had been reviewing the file as she sat at counsel’s table prior to testifying. She did not bring the file to the stand when called to testify.

Bailey’s counsel informed the judge that he believed that he was entitled to see the documents contained in the case file, but stated no legal basis for such right. The State objected, telling the judge that “[u]nder the law he’s entitled to review anything that she reviews after she takes the witness stand which is nothing.” This is neither a complete nor accurate statement of the law. The defendant here, however, did not attempt to establish that the witness had reviewed the file for the purpose of refreshing her memory, a necessary element to defendant’s right to review the file. The judge agreed with the State and sustained its objection.

Our Supreme Court has fixed the right to examine documents when used by witnesses for the purpose of refreshing their memories after the inception of the trial, even if they do not do so while actually testifying at the hearing or trial. Johnson v. State.

In Baxter [v. State], we held that a criminal defendant has the right, upon request, to examine documents used by witnesses to refresh their recollection. There has been some difficulty in trying to decide where to draw the line between access and non-access. There is confusion about whether the line should be drawn according to where a particular witness is physically located (i.e., on the witness stand, in the courtroom, etc.) or at some specified time relative to the witness (i.e., at the time the witness is testifying, immediately before the witness testifies, etc.). To resolve this, we will fix the right to examine such documents at the commencement of hearing or trial. Accordingly, if a witness uses documents to refresh memory after the inception of a hearing or trial, then during that hearing or trial, the cross-examiner is entitled to examine such documents.

Decided March 25, 2002.

Patrick C. Kaufman, for appellant.

Stephen D. Kelley, District Attorney, Charles K. Higgins, Assistant District Attorney, for appellee.

(Emphasis in original.) Id. Johnson makes it clear that the trial judge in this case did not err in its ruling as there was no showing that the witness had reviewed the case file for the purpose of refreshing her memory.

Even if the trial court had erred in its ruling, the error is harmless. Bailey had filed motions seeking discovery, and the discovery provided him included narrative portions of the police case file. Bailey’s counsel referred to this narrative in his cross-examination of a State witness. Moreover, much of Detective Taylor’s testimony concerned her conversation with Kellacher at the convenience store from which she had called 911 and the photographs which she had taken of Kellacher’s car. Her testimony regarding Kellacher’s previous statements was also part of the testimony presented through the 911 tape and the testimony of another police officer. Her testimony concerning the damage to Kellacher’s car was consistent with the testimony of Officer Kelly, leader of the major accident investigative team. Bailey had the opportunity to, and did, cross-examine Taylor in a thorough fashion. Given the cumulative nature of Taylor’s testimony and Bailey’s opportunity to cross-examine her concerning all she told the jury, it is highly probable that the trial court’s error, if any, did not contribute to the verdict and is, therefore, harmless. Johnson, supra.

Judgment affirmed.

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

        Gunsby v. State, 248 Ga. App. 18 (545 SE2d 56) (2001).

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

        Johnson v. State, 259 Ga. 403, 405 (383 SE2d 118) (1989).

        Baxter v. State, 254 Ga. 538, 548 (331 SE2d 561) (1985).


author: Andrews, Presiding Judge. Eldridge, Judge,

text:
    A01A1999.
    COLE v. THE STATE.
    (562 SE2d 720)
   Andrews, Presiding Judge.

Jason Neil Cole was found guilty of possessing methamphetamine and marijuana found during a search of his car conducted by police after he was stopped for a traffic offense. He appeals claiming the search was illegal and that the trial court erred by denying his motion to suppress the search results. Because we conclude the traffic stop and detention were legal and that Cole voluntarily consented to the search, we affirm.

The following testimony was given at a hearing before the trial court on Cole’s suppression motion. After stopping Cole for failure to properly maintain his lane, Officer Smith noticed the smell of marijuana coming from the interior of Cole’s car. He observed that Cole was shaking, acting nervous, and had watery, bloodshot eyes. When the officer told Cole he smelled marijuana, Cole became even more nervous and agitated. Based on these observations, the officer suspected Cole might be under the influence of marijuana and asked him to step out of the car so he could observe him on his feet. The officer stated that Cole appeared steady on his feet and that, other than bloodshot eyes, he appeared to be “okay.”

Still suspecting there might be marijuana in the car, the officer asked Cole for consent to search the car. When Cole refused to give consent, the officer asked for consent a second time telling Cole, “[t]his will only take five minutes to satisfy my suspicions of smelling the odor of marijuana, you’re telling me nothing is in the vehicle, then why do you have a problem with me searching it.” When asked if he then told Cole he could go get a drug dog to come out and sniff the car, the officer testified that he could not recall whether or not he made that statement to Cole, that it was possible he did so, but he did not write down in his report that he did so. The officer further testified that, although he believed Cole was free to leave after he refused the first request for consent to search, Cole consented when he asked the second time. The methamphetamine and marijuana were found under the driver’s seat of the car during the search.

1. Cole does not challenge Officer Smith’s authority to stop him for the traffic offense, but claims the detention and investigation that led to the search were unwarranted. There is no merit to this claim. When the officer smelled marijuana and observed Cole’s appearance and demeanor, he had reasonable, articulable suspicion under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968), to detain Cole to investigate whether he was driving under the influence of marijuana or was in possession of marijuana.

2. Similarly, there is no merit to claims that the search was involuntary because the officer told Cole he could go get a drug dog or that the search was the product of an illegal detention because the officer believed Cole was free to leave after he initially refused to consent to the search.

In ruling that Cole’s consent to the search was voluntary, the trial court found no basis for the claim that the officer made a statement to Cole about getting a drug dog to coerce the consent. The trial court noted that Officer Smith testified he could not recall telling Cole he could get a drug dog and that this testimony was supported by the fact that the officer did not write in his police report that he made any such comment. Based on this evidence, the trial court concluded that “no affirmative testimony by Smith or statements in Smith’s police report support [the claim] that Smith threatened Defendant with a drug dog ... if Defendant did not consent.” Cole did not testify at the hearing, and he never said that the officer made any statement to him about a drug dog. Accordingly, the only evidence before the trial court about the alleged drug dog statement was the officer’s testimony that he could not recall making such a statement, but it was possible he did so.

Although the State had the burden of proving that the consent to search was voluntary, it was not necessary for the State to produce additional evidence affirmatively disproving the possibility that the officer might have made the statement about a drug dog. Rather, the State could simply argue that the statement was not made, and it was up to the trial court to consider the weight to be given the possibility that it was made. See Anderson v. State, 247 Ga. 397, 399 (276 SE2d 603) (1981). “On appeal of a motion to suppress, the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them.” (Citations and punctuation omitted.) Sprauve v. State, 229 Ga. App. 478, 479 (1) (494 SE2d 294) (1997). Applying these principles, the evidence supports the trial court’s finding that the officer made no statement about getting a drug dog.

Moreover, even if the officer did tell Cole that he could get a drug dog if he did not consent to the search, this did not constitute coercion that rendered the consent involuntary. The fact that the officer detected the smell of marijuana coming from the interior of the car was sufficient to create a reasonable suspicion that Cole had marijuana in the car. State of Ga. v. Montford, 217 Ga. App. 339, 340-341 (457 SE2d 229) (1995). At a minimum, this suspicion justified the officer’s detention of Cole under Terry v. Ohio, 392 U. S. 1, to investigate the possible criminal activity and would have justified the officer’s use of a drug dog within the scope of that investigation to sniff around the exterior of the car to see whether the dog detected illegal drugs. Montford, 217 Ga. App. at 341. Having a trained dog sniff the exterior of a car is not a search within the meaning of the Fourth Amendment of the United States Constitution or Art. I, Sec. I, Par. XIII of the Georgia Constitution. Id. at 341. It follows that, even if the officer asserted he could get a drug dog, this was not an attempt to coerce consent by claiming he had lawful authority to search the car if Cole refused to consent. Compare Bumper v. North Carolina, 391 U. S. 543, 549-550 (88 SC 1788, 20 LE2d 797) (1968) (consent to search given in acquiescence to a claim of lawful authority is not considered voluntary).

Furthermore, the fact that the officer testified at the suppression hearing that he thought Cole was “free to leave” after he refused the officer’s first request for consent to search does not establish that any continued detention was illegal. The officer’s subjective belief that he lacked authority to detain Cole for continued investigation does not control where the facts objectively show the officer had such authority. Farmer v. State, 156 Ga. App. 837, 839 (275 SE2d 774) (1980). “Because we decide whether reasonable suspicion justifies a detention based on all the objective facts, we are not limited by the detaining officer’s subjective opinions.” United States v. Jones, 990 F2d 405, 408 (8th Cir. 1993), cert. denied, Jones v. United States, 510 U. S. 934 (114 SC 350, 126 LE2d 314) (1993). The objective facts established reasonable suspicion that there was marijuana in the car and justified Cole’s continued detention regardless of the officer’s subsequent testimony that he considered Cole “free to leave.” Accordingly, the officer’s continued investigation during which he eventually obtained Cole’s voluntary consent to search was lawful.

Cole’s consent to the search was voluntary, and the trial court correctly denied the motion to suppress the methamphetamine and marijuana found in the search.

Judgment affirmed.

Johnson, P. J, Ruffin and Ellington, JJ., concur. Eldridge, Miller and Phipps, JJ., dissent.

Eldridge, Judge,

dissenting.

Because the consent to search obtained by Officer Smith was not voluntary, I must respectfully dissent.

1. After Officer Smith determined that Cole’s failure to maintain a lane was not the result of being under the influence of marijuana, Smith decided to ask for consent to search Cole’s car because he thought there might be marijuana there. Cole refused consent. It was then Officer Smith testified:

A: I wanted to inspect his vehicle and he stated no the first time. So at that point I have nothing to hold him on, he’s free to go. . . .
Q: If when he said no to the consent and he had tried to leave, would he have been free to leave?
A: Yes, sir.
Q: Did you think you had anything to hold him on at that point?
A: No, sir.

(Emphasis supplied.) Smith did not tell Cole this, but instead asked again for consent to search. And it was during this second request — after Officer Smith had already determined that Cole was free to go — Smith testified that he might have threatened to get a drug dog if Cole did not consent to a search. Smith, in an admirably candid fashion, admitted that he had used such threat before with other detainees and possibly had used it in this instance:

Q: And then as far as asking him whether or not if he didn’t consent, you’d go get a drug dog, you said that you’ve actually made that particular statement to people before?
A: Yes, sir.
Q: And you said that you didn’t recall whether or not you made that statement to Mr. Cole?
A: No, sir.
Q: Okay. So you could have made that statement to him, is that what you’re telling the Court?
A: It’s possible, yes, sir.

The State has the burden to prove consent was freely and voluntarily given, and consent to search “must be the product of an essentially free and unrestrained choice by its maker.” Cole did not have the burden to present “affirmative evidence” that the drug dog statement was in fact made. The State had the burden to present evidence that such statement was not made. Moreover, the majority’s assertion that “the State could simply argue that the statement was not made” is patently insufficient. It is a tenet of the law that a prosecutor’s argument is not evidence, and, in this case, there was no factual basis upon which the prosecutor could argue that the drug dog statement was not made, since Officer Smith plainly testified that “It’s possible, yes, sir” he made such statement. The majority’s holding presents a new and interesting development in the law when the State is permitted to meet an affirmative constitutional burden by proving only that an officer “cannot recall” if he said or did something he should not have done and, further, testifies it is possible he did it.

Since the only evidence before the trial court — and before this Court — is that Officer Smith made drug dog statements in the past, and “[¡]?8 possible, yes, sir,” he made such statement here, the prosecution cannot as a matter of fact or law (or common sense) meet its burden to show that “Officer Smith made no statement about getting a drug dog,” as was concluded by the trial court and adopted by the majority. The finding that Officer Smith did not threaten Cole with a drug dog is clearly erroneous.

2. Equally interesting for the future of Terry stop/detention cases is the majority’s conclusion that “reasonable articulable suspicion” can be imputed to an officer who specifically testifies that “I have nothing to hold him on, he’s free to go,” but continues to detain the suspect in order to obtain a consent to search. I believe this is the first time in Georgia an appellate court has found that an officer who did not have a reasonable articulable suspicion should have had it and has supplied it for him. The propriety of the majority’s imputation is based on a reviewing court’s ability to find “probable cause” where an officer is unsure whether such exists.

In my view, however, “probable cause,” is an objective determination — by an officer or otherwise — based on objective factors; while “reasonable articulable suspicion” is a subjective determination by an officer in the field based on objective circumstances on the scene. As such, if objective circumstances in the field do not create in an officer a reasonable suspicion of wrongdoing, we cannot give it to him after the fact.

But pretermitting this and given that a majority of this Court wishes to be able to impute “reasonable articulable suspicion” to an officer who does not have it, I find this case an especially diverting vehicle for the majority’s holding because of the strong, strong evidence that Officer Smith was absolutely correct when he determined that the odor of marijuana present on the scene was insufficient to support a further detention of Cole:

A: Upon making contact with the driver, Mr. Cole, I smelled a slight odor of marijuana come [sic] from the car. ... It didn’t have the fresh sort of like —.
Q: It didn’t smell like it was burning right then?
A: No, sir, but it was like it was like the smoke was in the car, it had been smoked a lot in the car.
Q: When he rolled down the window, like a big cloud of smoke didn’t come billowing out?
A: No, sir. . . . It’s the smoke that’s embedded into the vehicle, and it’s kind of hard to tell if it’s recently been smoked or it’s old. . . .
Q: Now, you stated that prior to you beginning this search, that this embedded smoke or whatever you want to call it was a — I believe you used the words a slight odor?
A: From standing at the driver’s side door with my head two to three feet above the car. . . .
Q: [M]y question is, Mr. Cole may not have been smoking at all; some other people may have been smoking days earlier. Is that a possibility based on the slight odor?
A: It is possible.
Q: Am I correct in assuming since I didn’t hear it on direct, that you did not smell any marijuana coming from his person, did you?
A: It’s not in the report. . . .
Q: Well, that would be something you would put in your report had it happened. . . . You’d put it in the report?
A: Yes, sir.

In addition, Officer Smith’s investigation into whether Cole might be driving under the influence of drugs showed that, “Once he stepped out of the vehicle and talked to me, he was steady on his feet, and other than the bloodshot eyes, he seemed to be fairly okay.”

In State v. Folk, we determined that the odor of burning marijuana alone was sufficient to justify an officer’s warrantless search of a vehicle. In Patman v. State we distinguished between the odor of burning marijuana which “suggests that marijuana is still present,” and the smell of marijuana smoke which “merely suggests that marijuana was present in the past.” Such distinction was predicated on the fact that the standard necessary for a detention is a reasonable articulable suspicion that a suspect “either currently or would soon be engaged in an unlawful activity.”

Decided March 5, 2002

Reconsideration denied March 26, 2002

Steven A. Cook, for appellant.

Patrick H. Head, District Attorney, Henry R. Thompson, Dana J. Norman, Assistant District Attorneys, for appellee.

Here, Officer Smith, present on the scene, determined from the surrounding circumstances — including the marijuana smell — that he had “nothing further to hold Cole on.” And the above evidence certainly supports this conclusion, since the odor of marijuana was only “slight”; did not appear to be fresh; and Cole, himself, neither smelled of marijuana nor acted as if he were under the influence.

However, on the basis of the evidence as noted above, we give the boot to Officer Smith’s determination that Cole was free to go. The majority finds, instead, that the marijuana odor on the scene — an odor that this Court obviously did not experience — was of such consequence and immediacy that it should have created a “reasonable articulable suspicion” in Officer Smith that Cole was engaged in wrongdoing — even though it did not. Respectfully, I cannot give credence to this exercise of clairvoyant powers.

Because the facts in this case do not support a reasonable suspicion of current wrongdoing based on the odor of marijuana and plainly support Officer Smith’s determination to the contrary, this Court cannot impute such reasonable suspicion to Officer Smith — even if it wanted to.

I am authorized to state that Judge Miller and Judge Phipps join in this dissent.

       (Punctuation omitted.) Walton v. State, 194 Ga. App. 490, 492 (2) (390 SE2d 896) (1990).

        Sprauve v. State, 229 Ga. App. 478, 479 (1) (494 SE2d 294) (1997).

       Compare State v. Gibbons, 248 Ga. App. 859, 863 (2) (547 SE2d 679) (2001) (“An officer who questions and detains a suspect for reasons other than those connected with the original purpose of the stop exceeds the scope of permissible investigation unless he has ‘reasonable suspicion’ of other criminal activity.”).

       Indeed, the case relied upon by the majority, United States v. Jones, 990 F2d 405, 408 (8th Cir. 1993), premised its conclusion on the probable cause analysis contained in Klingler v. United States, 409 F2d 299, 304 (8th Cir. 1969), cert. denied, 396 U. S. 859 (90 SC 127, 24 LE2d 110) (1969). See also United States v. McKie, 951 F2d 399, 402 (D.C. Cir. 1991), also cited in United States v. Jones, supra, and holding that a court looks to the record as a whole to determine what facts were known to the officer who testified that he had reasonable articulable suspicion to detain. .

       See United States v. Knights, 534 U. S. 112 (122 SC 587, 593, 151 LE2d 497) (2001) (Souter, J., concurring) (“I would therefore reserve the question whether [the] holding [in Whren v. United States, 517 U. S. 806, 813 (116 SC 1769, 135 LE2d 89) (1996)], that ‘subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis’ should extend to searches based only upon reasonable suspicion”) (citation omitted).

       238 Ga. App. 206 (521 SE2d 194) (1999).

       244 Ga. App. 833, 835 (537 SE2d 118) (2000).

       (Emphasis supplied.) State v. Banks, 223 Ga. App. 838, 840 (479 SE2d 168) (1996).


author: Ruffin, Judge.

text:
    A01A2174.
    A02A0148.
    In the Interest of B. A. S., a child. JOHNSON v. STILLS et al.
    (563 SE2d 141)
   Ruffin, Judge.

These two appeals concern a Houston County Juvenile Court’s order terminating Steven Trainer’s parental rights in B. A. S. and a Fulton County Superior Court’s order granting the petition of Terry and Christal Stills to adopt the child. The case has a long and contentious history that is partially discussed by the Supreme Court of Georgia in Stills v. Johnson. We consolidated the two appeals, which share a common background, to finally resolve the issues and bring certainty and stability to the lives of the child and the other parties. For reasons that follow, we affirm the termination order and the order granting the Stillses’ adoption petition.

As revealed in Stills, B. A. S. was born out of wedlock to Cassandra Stills and Trainer in February 1994, only days after Trainer was arrested and charged with committing numerous crimes. Trainer was eventually sentenced to serve two consecutive ten-year sentences, but legitimated the child. Cassandra Stills died in August 1997, and at that time her mother, Doris Stills, and Trainer began contending for custody of B. A. S.

After Cassandra died, B. A. S. went to live with Doris Stills, who was appointed his temporary legal guardian by the Probate Court of Houston County. Trainer objected to the guardianship, however, and attempted to transfer custody to his mother, Gertrude E. Johnson, a New Jersey resident. To accomplish this goal, Trainer executed a document purporting to relinquish his parental rights to Johnson and his sister and filed a petition in Houston County Superior Court to transfer physical custody of B. A. S. from Doris Stills to Johnson. Johnson was later added as a plaintiff in that custody action.

While these proceedings were pending, Doris Stills died of cancer, and B. A. S. went to live in Texas with Cassandra’s brother and sister-in-law, Terry and Christal Stills. Terry Stills was substituted as the defendant in Trainer’s custody action, and, on June 21, 1999, Stills filed a petition to terminate Trainer’s parental rights in B. A. S. that was eventually transferred to the Houston County Juvenile Court.

B. A. S. continued living with the Stillses until approximately June 29, 1999, when the Houston County Superior Court granted Trainer’s custody petition and awarded custody of the child to Johnson. Thereafter, B. A. S. went to live with Johnson in New Jersey.

Terry Stills subsequently appealed the Houston County Superior Court’s custody order, and on July 10, 2000, the Supreme Court of Georgia reversed. That Court held that the Houston County Superior Court erred in concluding that Trainer’s purported relinquishment of parental rights vested in Johnson a superior legal right to custody of B. A. S. The Court also ruled that the proper standard for determining custody was not the fitness of the custodian, as applied by the trial court, but the best interest of the child. The Court remanded the matter back to the Houston County Superior Court for a redetermination of custody under the proper standard. In its opinion, the Court noted

that there remains pending a petition filed by Terry Stills in the juvenile court to terminate the parental rights of Steven Trainer. Should the juvenile court conclude that in accordance with the standards set forth in OCGA § [15-11-94] there is clear and convincing evidence of Steven Trainer’s inability or failure to render proper parental care to the child, and that it" would be in the best interest of the child to terminate Steven Trainer’s parental rights, then Trainer’s attempt to relinquish his parental power to his mother by voluntary contract would be of no effect. On remand, the trial court should first resolve the termination proceeding before finally adjudicating the custody issue.

On July 21, 2000, shortly after the Supreme Court issued its opinion in Stills v. Johnson, Terry and Christal Stills, who had relocated to Fulton County, petitioned the Fulton County Superior Court to adopt B. A. S. At some point during the year 2000, Johnson filed a competing adoption petition in a New Jersey court and also intervened in the Stillses’ adoption action.

Seeking finality to the various actions, the Houston County Superior Court judge presiding over the remanded custody action contacted both the New Jersey court and the Fulton County court so that the three judges could determine the most appropriate forum for deciding the custody and adoption disputes. The New Jersey court subsequently dismissed Johnson’s adoption action, finding that Georgia was a more appropriate venue. The Houston County Superior Court likewise transferred venue of Trainer and Johnson’s custody action to Fulton County Superior Court so that it could be consolidated with the Stillses’ adoption action1.

On September 25, 2000, the Houston County Juvenile Court entered an order terminating Trainer’s parental rights in B. A. S., and on June 19, 2001, the Fulton County Superior Court granted the Stillses’ petition to adopt B. A. S. In Case No. A01A2174, Trainer, pro se, appeals the Houston County Juvenile Court’s termination order, and in Case No. A02A0148, Johnson appeals the Fulton County Superior Court’s adoption order. In addition to these two appeals, the parties have filed numerous motions. Although many of these motions are now moot, we will address them, as necessary, in our discussion of the respective appeals.

Case No. A01A2174

In challenging the juvenile court’s termination order, Trainer contends that the court lacked personal and subject matter jurisdiction, that the court’s order was unsupported by sufficient factual findings, and that the termination violated his fundamental right to raise B. A. S. Finding no merit in Trainer’s assertions, we affirm.

1. Before turning to Trainer’s enumerations of error, we must address Stills’ motion to dismiss the appeal. Stills argues that Trainer’s appeal should be dismissed because Trainer directly appealed the court’s order and, as an incarcerated litigant, the Prison Litigation Reform Act required him to file an application for discretionary appeal. We disagree. The Act requires a prisoner to file an application for discretionary appeal only if he filed the underlying action. Because Trainer did not file the termination petition at issue here, the Act did not apply, and Stills’ motion to dismiss is denied.

2. In his first enumeration of error, Trainer asserts that the Houston County Juvenile Court lacked subject matter jurisdiction to decide the termination petition, that the court’s order is void because it fails to recite sufficient facts supporting its subject matter jurisdiction, and that the court lacked personal jurisdiction over him. We disagree.

Subject matter jurisdiction over the termination petition was conferred by OCGA § 15-11-28 (a) (2) (C), which provides that juvenile courts

shall have exclusive original jurisdiction over juvenile matters and shall be the sole court for initiating action . . . [f]or the termination of the legal parent-child relationship . . . other than that in connection with adoption proceedings under Chapter 8 of Title 19, in which the superior courts shall have concurrent jurisdiction to terminate the legal parent-child relationship.

Here, Trainer asserts that the juvenile court lacked jurisdiction because the superior court had exclusive jurisdiction to entertain Terry Stills’ termination petition, which, Trainer claims, Stills filed in connection with an adoption proceeding. Trainer apparently relies on the former version of OCGA § 15-11-28 (a) (2) (C) that gave the superior court exclusive jurisdiction over such combined proceedings. Inasmuch as the amended statute now gives the superior court concurrent jurisdiction with the juvenile court, this assertion is without merit.

We also disagree with Trainer’s argument that the court’s order failed to recite sufficient jurisdictional facts. The court’s order expressly stated that it was addressing Stills’ petition to terminate Trainer’s parental rights, which, as discussed above, is within the juvenile court’s jurisdiction.

Finally, Trainer, who was personally served with process, asserts that the juvenile court lacked personal jurisdiction over him. Again we disagree. Personal jurisdiction is an issue that can be waived, and in this case Trainer has not shown that he challenged the court’s personal jurisdiction below. Thus, we deem the issue waived on appeal. Furthermore, even if Trainer had preserved the issue below, he has not asserted any argument or pointed to any evidence establishing that the court lacked jurisdiction over him. Thus, this unsupported claim of error is also deemed abandoned under Court of Appeals Rule 27 (c) (2).

Perhaps confusing the issue of personal jurisdiction with venue, Trainer argues that the Houston County Juvenile Court was the wrong court to address the termination petition because the child did not reside in that county. But the récord shows that Trainer stipulated to venue in Houston County, and this issue is, therefore, also waived for appeal.

3. Trainer next asserts that insufficient evidence supported the juvenile court’s termination order. A juvenile court’s decision to terminate parental rights under OCGA § 15-11-94 involves a two-step process.

The court must first determine whether clear and convincing evidence exists of parental misconduct or inability. The court [must] then determine! ] whether termination is in the best interest of the child. [The] standard on review is whether a rational trier of fact could have found by clear and convincing evidence that the parent’s rights were lost.

The evidence in this case showed that Trainer has an extensive criminal history. On numerous occasions since the early 1980s, Trainer has been either jailed or imprisoned for offenses in North Carolina, Missouri, New Jersey, and Georgia. Most recently, in 1994, Trainer was convicted in DeKalb County on two counts of robbery, and one count each of battery, theft by receiving stolen property, and possessing crack cocaine in violation of the Georgia Controlled Substances Act. Approximately 14 to 15 months after his DeKalb County convictions, Trainer pled guilty to robbery charges in Gwinnett County.

Since being incarcerated in 1994, Trainer has been less than a model prisoner. He has been repeatedly disciplined by prison officials for behavioral problems, including an altercation with a guard, threatening guards, repeated insubordination, unauthorized possession of contraband, and obstructing correctional officers in their duties. Apparently based on these disciplinary problems, Trainer’s security classification was at one point increased from medium security to close security, and following further disciplinary reports, it was increased to maximum security. Trainer has been incarcerated for the entire life of B. A. S., he remains incarcerated, and he will not be eligible for parole until June 2004, at the earliest.

This evidence provides clear and convincing proof that Trainer’s parental rights in B. A. S. have been lost. It is clear that, due to Trainer’s persistent criminal conduct and resulting incarcerations, B. A. S. has been deprived of any parenting by his natural father.

Although incarceration alone need not always compel the termination of parental rights, it can support such a ruling when sufficient aggravating circumstances are present. When an incarcerated parent has a criminal history of repetitive incarcerations for the commission of criminal offenses, this constitutes an additional factor which may be considered in determining whether the child presently is without the proper parental care and control of the offending parent, and that such is likely to continue.

Trainer’s extensive criminal history and continuous incarceration are not the only aggravating circumstances establishing that he has not been, and will not be, able to care for B. A. S. The transcript reveals that Trainer has unbridled contempt for the prison system and that his associated disciplinary problems, which show no signs of abating, have made him a maximum security prisoner, a circumstance that could delay his eligibility for parole.

In addition to these aggravating factors, there is also evidence that Trainer has, without justifiable cause, failed to develop any parental bonds with B. A. S. or provide financial support for him. In fact, since the time he was first incarcerated, Trainer’s contact with B. A. S. has been almost nonexistent. Trainer has seen B. A. S. only once since early 1997 and did not participate in court-ordered telephone visitation. In addition, although Trainer has exhausted his savings to pay his attorney fees, he has never contributed any financial support for the child. Considering these circumstances, the juvenile court did not err in finding sufficient evidence of Trainer’s parental misconduct and inability.

There is also sufficient evidence supporting the juvenile court’s conclusion that the termination is in the best interest of B. A. S. Indeed, the same evidence discussed above shows that it is in B. A. S.’s best interest to terminate Trainer’s parental rights. B. A. S. needs emotional and moral stability and a secure, stable home. The termination of Trainer’s parental rights is clearly a step in that direction.

4. Trainer also asserts that the trial court erred in restricting the scope of the evidence presented at the termination hearing to events predating June 1999. The transcript shows, however, that the court’s order was precipitated by Trainer’s motion in limine to restrict the evidence. Before the termination hearing, Trainer’s counsel argued that the court should only consider whether Trainer’s parental rights should have been terminated prior to January 1998, when he attempted to relinquish his parental rights to Johnson. Thus, Trainer moved to limit the hearing to pre-January 1998 evidence.

Inasmuch as “[a] finding of unfitness must be based on present circumstances,” the trial court erred in limiting the evidence to events occurring prior to June 1999, the month the termination petition was filed. Under other circumstances, such ruling might be cause for reversal. Trainer’s trial counsel, however, moved to restrict the scope of the evidence, and the court’s ruling was prompted solely by that motion. “It is well established that induced error is impermissible and furnishes no ground for reversal.” Moreover, notwithstanding the court’s ruling in limine, the record contains ample evidence of Trainer’s current unfitness. Accordingly, the court’s evidentiary ruling does not warrant reversal.

5. Finally, Trainer asserts that the juvenile court’s termination order violated his constitutional rights to raise his child. Trainer has not shown, however, that he ever asserted these constitutional arguments below. Accordingly, we deem them waived for appeal.

Case No. A02A0148

In this appeal, B. A. S.’s paternal grandmother, Johnson, asserts that the trial court lacked subject matter jurisdiction to hear the adoption case, that the court should have resolved the transferred custody issue before addressing the Stillses’ adoption petition, that the court erroneously relied on a void termination of parental rights order, and that the court erred in granting the Stillses’ adoption of B. A. S. because their petition was fatally flawed and the evidence was insufficient.

6. Before addressing Johnson’s assertions, we must address her motion to strike the Stillses’ brief because it contains an appendix of exhibits in violation of Court of Appeals Rule 23 (f). Although we deny Johnson’s motion, in accordance with Rule 23 (f), we will not consider the exhibits attached to the brief.

Equally troublesome as the Stillses’ reliance on the appendix, but not raised by Johnson, is the Stillses’ violation of Court of Appeals Rule 27 (b) (2), which requires that an appellee’s brief “shall contain appellee’s argument and the citation of authorities as to each enumeration of error.” Although Johnson enumerated seven errors and organized her brief in accordance with Court of Appeals Rule 27 (a), the Stillses’ argument is divided into three sections that bear little correlation to Johnson’s asserted errors. In short, the Stillses’ brief, which relies heavily on the attached appendix and fails to address most of Johnson’s arguments, was of little assistance to the Court in deciding the relative merits of this appeal.

7. With regard to the merits, Johnson first asserts that the trial court lacked jurisdiction to consider the adoption petition under the Uniform Child Custody Jurisdiction Act (“UCCJA” or “Act”). We disagree.

Before addressing this assertion, we note that the UCCJA was amended in 2001 and is now codified as the Uniform Child Custody Jurisdiction and Enforcement Act. Although the recently amended version of the Act expressly provides that it is inapplicable to adoptions, and we would typically apply the law as it exists at the time of our review, the amendments also require that a custody action “which was commenced before July 1, 2001, is governed by the law in effect at the time the motion or other request was made.” At the time this adoption action was filed, July 21, 2000, the UCCJA applied to adoption proceedings. Accordingly, we will apply the former version of the Act to determine whether the trial court appropriately exercised jurisdiction in this adoption case.

Under the former version of the Act, a court could have exercised jurisdiction over an adoption action if, among other grounds: (1) the court was “competent to decide child custody matters . . . [; (2)] another state [had] declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child; and [(3) it was] in the best interest of the child that this court assume jurisdiction.”

Each of these requirements was met here. First, Georgia law confers jurisdiction upon superior courts over adoption petitions. Thus, the Superior Court of Fulton County was competent to decide this adoption matter. Second, the New Jersey court declined to exercise jurisdiction, finding that Georgia was a more appropriate forum to decide the custody issue.

Finally, it was in the best interest of B. A. S. that the Fulton County Superior Court assume jurisdiction of the Stillses’ adoption petition and Johnson’s custody action. At the time the three judges decided that Fulton County was the most appropriate forum, B. A. S. had lived most of his life in Georgia, and both his biological father and the Stillses, his aunt and uncle, reside here. Although New Jersey was technically B. A. S.’s home state, because he had been living there for at least the previous six months, this was only because a Georgia court had granted temporary physical custody to Johnson. Indeed, Georgia courts had been intimately involved in deciding B. A. S.’s fate since the inception of this longstanding custody dispute. Before the issue of jurisdiction was decided by the three judges, the Houston County Probate Court had appointed the maternal grandmother as B. A. S.’s temporary legal guardian, the Houston County Superior Court was presiding over Trainer and Johnson’s custody action, the Supreme Court of Georgia had issued an opinion that reversed the Houston County court’s custody award and presented a road map for determining final custody, and the Houston County Juvenile Court was considering whether to terminate the biological father’s parental rights. As noted by the Houston County Superior Court judge who previously presided over Johnson’s custody petition, this case involves “two families that are fighting over a child, but worst of all, you’ve got a little child that has been pushed and pulled and battered about from pillar to post.” The child needed closure, and considering the substantial connection he had with Georgia and its courts, it was in his best interest that a Georgia court assume jurisdiction over the dispute.

Alternatively, Johnson argues that the trial court lacked jurisdiction under the federal Parental Kidnapping Prevention Act (“PKPA”). It is unclear, however, whether the PKPA, which, by its express terms applies only to “custody” and visitation determinations, also governs adoption proceedings. The sole authority cited by Johnson in support of this argument; Gainey v. Olivo, held only that the Court of Appeals erred in concluding that the UCCJA did not apply to adoption proceedings. In its decision, however, the Court of Appeals also found that “the language and purpose of [the PKPA] are essentially the same as the UCCJA, and we are similarly persuaded that the PKPA does not apply to adoption proceedings.” Notwithstanding the similarity of the two acts, the Supreme Court did not address the applicability of the PKPA to adoptions in its opinion.

Even if we assume that the PKPA governs this adoption proceeding, it did not deprive the Fulton County Superior Court of jurisdiction. As stated above, the jurisdictional language in the PKPA is essentially the same as the UCCJA, and for the reasons discussed above, jurisdiction under the PKPA, if it applied, was appropriately exercised by the court.

8. In two enumerations of error, Johnson asserts that the Fulton County Superior Court erred in failing to resolve her transferred custody action before ruling on the Stillses’ adoption petition. According to Johnson, the Supreme Court’s opinion in Stills required the trial court to resolve the custody action “prior to adjudicating a new action between the same parties.”

The Supreme Court’s remand instructions in Stills are quoted above. Those instructions did not contemplate new actions between the parties, but only required resolution of “the termination proceeding before finally adjudicating the custody issue” according to the best interest of B. A. S. That is precisely what occurred here. The Houston County Juvenile Court terminated Trainer’s parental rights, and the Fulton County Superior Court subsequently found that it was in the best interest of the child to grant the Stillses’ adoption petition and order that custody be transferred to them. Furthermore, considering the need for a final resolution to the custody issue in the best interest of the child, there was nothing to be gained by extending the controversy with a piecemeal consideration of Johnson’s custody petition and the Stillses’ adoption petition, as suggested by Johnson.

In addition, contrary to Johnson’s argument, the trial court was not required to give any weight to Trainer’s release of his parental rights to Johnson. In Stills, the Supreme Court ruled that, if the juvenile court found it appropriate to terminate Trainer’s parental rights, then his “attempt to relinquish his parental power to his mother by voluntary contract would be of no effect.” The juvenile court took such action, and, in Case No. A01A2174, we affirmed the termination order.

Johnson also seems to contend, under the same enumerations of error, that the Houston County Superior Court improperly transferred the custody proceeding to Fulton County because OCGA § 9-14-4 requires that habeas corpus actions must be filed in the county where the illegal detention exists. We disagree with Johnson’s characterization of the transferred case as a habeas corpus action. Although it appears that the Houston County Superior Court construed the petition to grant custody to Johnson as one for habeas corpus, “habeas corpus is not an available remedy to inquire into the legality of the custody of a child in a case where the alleged detention is not against the right of the applicant [seeking custody].” Inasmuch as Johnson, as B. A. S.’s grandmother, did not have a legal right to custody of the child, habéas corpus was not an available remedy to transfer custody to her. Accordingly, we find no merit in Johnson’s argument that Fulton County Superior Court improperly accepted the case under the habeas corpus statute.

Furthermore, the record shows that Johnson’s counsel acquiesced in the process that resulted in that transfer. Before the transfer, the Houston County Superior Court judge proposed to both parties that all three judges should confer by telephone to determine which was the most appropriate forum to decide the custody issue, and Johnson’s counsel agreed that this was a fair way to resolve the dispute. “A party may not complain on appeal of a ruling that [she] contributed to or acquiesced in by [her] own action, trial strategy, or conduct.” The law, in all of its grandeur and magnificent splendor, does not protect use from self folly. Finally, the transfer of venue was consistent with Georgia’s policy as declared in the Child Custody Intrastate Jurisdiction Act of avoiding jurisdictional competition and promoting cooperation among courts in intrastate child custody matters.

Also subsumed in these same enumerations of error is Johnson’s assertion that res judicata and collateral estoppel precluded the Fulton County Superior Court from readjudicating facts of the custody dispute. We have reviewed Johnson’s statement of the method by which she preserved this argument and do not find that she raised it below. Accordingly, we- deem it waived for appeal. Furthermore, we are compelled to note that Johnson’s argument neglects the fact that, in Stills v. Johnson, the Supreme Court reversed the Houston County Superior Court’s custody order and remanded it for a new custody hearing, clearly contemplating the introduction of new evidence concerning the child’s best interest.

9. Johnson next asserts that the trial court’s refusal to consider her adoption petition and its failure to separately address her custody action denied her due process.

The constitutionally-guaranteed right to due process of law is, at its core, the right of notice and the opportunity to be heard. Neither the federal nor the state constitution’s due process right guarantees a particular form or method of procedure, but is satisfied if a party has reasonable notice and opportunity to be heard, and to present its claim or defense, due regard being had to the nature of the proceeding and the character of the rights which may be affected by it.

In this case, the record shows that the trial court gave Johnson every opportunity to fight for custody of B. A. S. and merely prevented her from pursuing an adoption petition in Georgia because the court lacked jurisdiction over such petition. Inasmuch as Johnson was not a Georgia resident, the trial court properly prohibited her from filing an adoption petition here. And, as for custody, the record shows that, prior to the final hearing, the court observed that it was “confident that, should [it] deny the Stills’ adoption petition and award custody of the child to Ms. Johnson, the New Jersey court will reconsider its denial of jurisdiction and allow Ms. Johnson to pursue adoption of the child in New Jersey.” Although Johnson spent much of her time at the final hearing challenging the court’s jurisdiction instead of focusing on her asserted right to custody, her counsel presented argument and examined witnesses, including Johnson, concerning whether it would be in B. A. S.’s best interest to be in her custody. The trial court’s final order likewise addressed whether it was in B. A. S.’s best interest to be in the custody of the respective parties. Although Johnson was not given the New Jersey venue she preferred, it is clear that she was provided a reasonable opportunity to pursue custody of B. A. S. and to challenge the Stillses’ adoption petition, and that she was, therefore, not deprived of due process.

10. Johnson asserts that, because Trainer had already relinquished his parental rights to her, the Houston County Juvenile Court’s termination order was void, and the Fulton County Superior Court therefore erred in relying on that termination order. We addressed the validity of the Houston County Juvenile Court’s termination order in Case No. A01A2174 and the effect of Trainer’s purported relinquishment in Division 8 of our discussion of this appeal. The juvenile court’s termination order rendered Trainer’s relinquishment ineffective, and this assertion is, therefore, without merit.

11. Johnson claims that the trial court erred in granting the Stillses’ adoption petition because it was facially invalid and improperly filed. Specifically, Johnson argues that the trial court should have dismissed the petition because the Stillses had neither a written surrender of Trainer’s parental rights nor a valid termination of his parental rights. According to Johnson, the evidence instead showed that Trainer had actually surrendered his parental rights to her. In advancing this argument, Johnson again refuses to recognize that the Houston County Juvenile Court terminated Trainer’s parental rights and that his “attempt to relinquish his parental power to his mother . . . [was, therefore,] of no effect.”

12. In her last enumerated error, Johnson asserts that there was insufficient evidence supporting the trial court’s order granting the petition. Again, we disagree.

In a case like this, where no natural parent has rights in the child, the trial court, which sits as the factfinder, is vested with broad discretion. Armed with this discretion, the trial court must determine whether the “petitioner is capable of assuming responsibility for the care, supervision, training, and education of the child, that the child is suitable for adoption in a private family home, and that the adoption requested is for the best interest of the child.” On appeal, we construe the evidence in a light most favorable to the court’s judgment, and we will affirm a trial court’s finding that the adoption is in the child’s best interest if there is any evidence to support it.

In addition to the facts presented above, the evidence showed that Terry Stills, who married Christal Stills in 1998, was the natural mother’s Lamaze birthing class partner, the sole father figure for B. A. S. for the first two and one-half years of the child’s life, and provided financial support for him. Even after the mother and B. A. S. moved away to a different part of the state, Terry Stills continued his relationship with B. A. S., routinely talking to him by telephone and visiting him on alternating weekends. After custody of B. A. S. was transferred to Johnson in 1999, Terry and Christal Stills frequently attempted to speak with him by telephone and visit him in New Jersey, but were often denied access to him and confronted with hostility by Johnson and her relatives. In contrast, during the time that B. A. S. was with the Stillses, they attempted to foster his relationship with Johnson.

At the time of the hearing, the Stills family lived together in a three-bedroom home in a quiet neighborhood. Terry Stills was gainfully employed and actively involved in the Boy Scouts and other community programs. Christal Stills worked in the home raising the couple’s two children: a fourteen-year-old daughter and a son who is almost two years old. The daughter is an honor roll student and a member of her school’s band. Both children have a good relationship with B. A. S., and B. A. S. also plays in the neighborhood with other children his own age. Considering this evidence, the trial court did not clearly err in finding that the Stillses are capable of raising B. A. S. and that it is in B. A. S.’s best interest to be adopted by the couple.

13. In its final order granting the adoption, the trial court stated that the child’s “best interests are served by the adoption of him by and immediate transfer of his custody to the [Stillses].” Accordingly, the court ordered that the Stillses were “authorized to pick up [B. A. S.] and his possessions from Ms. Johnson’s home at noon on June 23, 2001.” Upon filing her notice of appeal from the trial court’s adoption order, Johnson also filed an emergency motion for superse-deas to maintain temporary custody of B. A. S. while her appeal was pending. In an attempt to minimize the harmful effects that would likely be caused by shifting B. A. S. among different custodians while the various appeals were pending, we granted Johnson’s motion. In our order, we clarified that “our grant of supersedeas merely preclude [d] enforcement of the Fulton County Superior Court’s June 19, 2001 order,” and ordered the parties to comply with an existing trial court “visitation order and with such further visitation orders as the trial court may impose while the appeal is pending.”

The trial court’s existing visitation order permitted the Stillses to visit with the child in Georgia for six weeks during his summer vacation, beginning on June 21, 2001. Contrary to the spirit of our order granting supersedeas, the trial court subsequently extended this visitation to effectively give custody to the Stillses while the appeals were pending. The trial court’s latter order invited a flurry of motions to this Court which remain pending. Although those motions are now moot, we are compelled to note our concerns with the trial court’s action.

Decided February 11, 2002

Reconsideration dismissed March 26, 2002

Steven B. Trainer, pro se.

Bernadette C. Crucilla, Joyce D. Colmar, Kathryn J. Jaconetti, for appellant (case no. A02A0148).

Husser & Frazier, Genevieve L. Frazier, Mabry & McClelland, Edwin L. Hamilton, for appellees.

Notwithstanding the trial court’s best intentions, we expected the court to comply with our mandate of supersedeas in both letter and spirit. Although, in hindsight, it may be said that the best interest of B. A. S. was served by allowing him to continue living with the Stillses, at the time we issued our order granting supersedeas, the issues of termination of parental rights and custody were far from final resolution. Without belaboring the point, it was inappropriate for the trial court to speculate as to the final outcome of these appeals and grant further, continuing visitation that amounted to a temporary transfer of custody, after we had ordered that the status quo be preserved. It is apparent that the trial court’s order only led to further uncertainty concerning the child’s temporary custody and escalated the level of hostility between the parties.

Judgments affirmed.

Johnson, P. J., and Ellington, J., concur.

       272 Ga. 645 (533 SE2d 695) (2000).

       We note that, in conflict with the Supreme Court’s opinion in Stills, the record before us indicates that Trainer was sentenced to as many as 40 years for his convictions.

       Trainer’s relinquishment of parental rights purported to “temporarily” transfer his parental rights to both his mother, “Gertrude E. Johnson, and/or Trudi Renee Johnson,” his sister.

       Stills filed the petition in Tattnall County Juvenile Court, but the case was later transferred to the Houston County Juvenile Court. Trainer challenges that transfer in his appeal of the juvenile court’s order terminating his parental rights.

       See Stills, supra.

       See id. at 649.

       Id. at 649-650.

       (Footnote omitted.) Id. at 651 (3).

       We note that, although Trainer is proceeding pro se on appeal, he was represented by counsel below.

       OCGA § 42-12-1 et seq.

       See OCGA § 42-12-8 (requiring that “[a]ppeals of all actions filed by prisoners” must proceed pursuant to the discretionary appeal procedure contained in OCGA § 5-6-35); In the Interest of K. W., 233 Ga. App. 140 (1) (503 SE2d 394) (1998).

       See id.

       (Emphasis supplied.)

       See In the Interest of D. L. N., 234 Ga. App. 123-124 (1) (506 SE2d 403) (1998) (addressing jurisdictional statute previously codified as OCGA § 15-11-5 (a) (2) (Q).

       See id.; OCGA § 15-11-28 (a) (2) (C).

       See In the Interest of M. L. C., 249 Ga. App. 435, 436 (1) (548 SE2d 137) (2001); see also OCGA § 15-11-28 (a) (2) (C).

       See M. L. C., supra.

       See id.

       See OCGA § 15-11-29 (a) (establishing venue in the county where the child resides).

       See Maalouf v. Knight, 237 Ga. App. 509, 510 (1) (515 SE2d 650) (1999).

       (Citations and punctuation omitted.) In the Interest of D. A. P., 234 Ga. App. 257, 259 (2) (506 SE2d 438) (1998) (decided under former OCGA § 15-11-81).

       (Citation, punctuation and emphasis omitted.) Id.; see also Stills, supra.

       See OCGA § 42-9-43 (a) (1), (2) (providing that parole board should consider correctional institution’s report of inmate’s conduct and the prisoner’s efforts to improve his social attitude).

       See OCGA § 15-11-94 (b) (4) (C) (i), (ii).

       See D. A. R, supra at 260; see also In the Interest of S. H., 251 Ga. App. 555, 558 (1) (553 SE2d 849) (2001).

       See In the Interest of D. T. C., 248 Ga. App. 788, 792 (3) (548 SE2d 11) (2001).

       See id.

       (Punctuation omitted.) In the Interest of J. E. E., 235 Ga. App. 247, 249 (509 SE2d 147) (1998).

       See, e.g., In re N. F. R., 179 Ga. App. 346, 348 (2) (346 SE2d 121) (1986) (reversing termination of parental rights because no evidence of current unfitness).

        Torres v. State, 272 Ga. 389, 392 (7) (529 SE2d 883) (2000).

       See Zant v. Moon, 264 Ga. 93, 94 (1) (440 SE2d 657) (1994).

       OCGA § 19-9-40 et seq.

       See OCGA § 19-9-40 (2001 Supp.).

       See OCGA § 19-9-42 (2001 Supp.).

       See D. L. N., supra at 124.

       OCGA § 19-9-102 (2001 Supp.).

       See In re Stroh, 240 Ga. App. 835, 844 (1) (c) (ii) (523 SE2d 887) (1999).

       Former OCGA § 19-9-43 (a) (4).

       See OCGA § 19-8-2 (a).

       See former OCGA § 19-9-43 (a) (4) (A).

       See former OCGA § 19-9-42 (5).

       See Mock v. Smith, 233 Ga. App. 36, 37 (503 SE2d 319) (1998) (observing that Georgia appellate courts have “recognized that in appropriate cases the state which made the initial custody determination may be the appropriate forum in which to relitigate subsequent custody matters even though that state is no longer the home state of the minor children”) (punctuation omitted).

       See Stills, supra.

       See Mock, supra at 37-38; Holt v. Leiter, 232 Ga. App. 376, 379 (1) (501 SE2d 879) (1998).

       28 USC § 1738A.

       258 Ga. 640, 644 (1) (373 SE2d 4) (1988).

        Olivo v. Gainey, 185 Ga. App. 427, 428 (2) (364 SE2d 279) (1987), rev’d in part, Gainey v. Olivo, 258 Ga. at 644.

       See Gainey v. Olivo, 258 Ga. 640.

       Compare 28 USC § 1738A (c) with former OCGA § 19-9-43 (a) (4) (A).

       (Emphasis omitted.)

        Stills, supra.

       See generally OCGA § 19-9-21 (a) (4), (6) (generally expressing need to discourage continuing child custody controversies and avoid relitigation of custody decisions).

        Stills, supra.

       (Punctuation omitted.) Spitz v. Holland, 243 Ga. 9, 10 (252 SE2d 406) (1979).

       See id.; see also Stills, supra at 649 (stating that Johnson, as a grandmother, had no superior legal right to custody of B. A. S.).

        Holcomb v. State, 268 Ga. 100, 103 (2) (485 SE2d 192) (1997).

       OCGA § 19-9-20 et seq.

       OCGA § 19-9-21 (a) (1), (2).

        See Allison v. State, 217 Ga. App. 580, 582 (2) (459 SE2d 557) (1995).

       See Stills, supra at 650, 652.

       (Citation and punctuation omitted.) Cobb County School Dist. v. Barker, 271 Ga. 35, 37 (2) (518 SE2d 126) (1999).

       See OCGA § 19-8-3 (a) (3); see also In re Stroh, supra at 840 (1) (a). We note that, although Johnson further contends that the trial court erred in refusing to accept the New Jersey court’s transfer of her adoption petition in that case, there is no evidence of record that the New Jersey court ever attempted to transfer Johnson’s petition here. Instead, the New Jersey court’s order clearly reflects that it dismissed the petition.

       See Barker, supra.

       See Stills, supra at 651.

       See generally OCGA § 19-8-7 (providing for the surrender or termination of parental rights where a relative is seeking to adopt the child).

        Stills, supra.

       See Matherly v. Kinney, 227 Ga. App. 302 (1) (489 SE2d 89) (1997).

       OCGA § 19-8-18 (b); see also Matherly, supra.

       See id. at 303; Bateman v. Futch, 232 Ga. App. 271, 274 (2) (501 SE2d 615) (1998).

       See OCGA § 19-8-18 (b); Matherly, supra; Bateman, supra.

       Based on her belief that an automatic supersedeas preserved the status quo pending appeal, Johnson initially refused to release B. A. S. to the Stillses, even though they were, at a minimum, entitled to be with him for this six-week summer visit. It appears, however, that after police officers intervened in the dispute, B. A. S. was transferred to the Stillses for the visitation.


author: Miller, Judge.

text:
    A01A1733.
    GREEN et al. v. SOMMERS.
    (562 SE2d 808)
   Miller, Judge.

Elias Green and others appeal from the trial court’s grant of summary judgment to plaintiff Jackie Sommers on Green’s counterclaims for trespass to property, wrongful filing of a dispossessory action, and illegally acquiring title to Green’s property. On appeal appellants contend that the trial court erred by (1) exercising jurisdiction over this case after the United States District Court for the Southern District of Georgia dismissed their removal petition to federal court, (2) granting Sommers’s motion for summary judgment and a writ of possession against appellants, and (3) dismissing appellants’ previous notices of appeal. We discern no error and affirm.

Viewed in the light most favorable to defendants, the record reveals that Green and the other appellants owned property that a bank acquired from them through foreclosure. Sommers bought virtually all of the property from the bank and on February 19, 1997, sought a writ of possession against Green and the other appellants with respect to the property he owned. The action was served on appellants on February 26, 1997. The trial court granted the writ of possession on April 4, 1997. Although Green had asserted counterclaims in his answer, the court failed to make a specific ruling on Green’s counterclaims. After appellants made several unsuccessful attempts to appeal or to remove the case to federal court, Sommers moved for summary judgment on Green’s counterclaims, which was granted by the court on February 8, 2001.

1. Appellants contend that the trial court erred by exercising jurisdiction over this case after the United States District Court for the Southern District of Georgia dismissed their April 14, 1997 petition to remove this case to federal court. More specifically, they argue that because the federal court did not send a certified copy of an order officially remanding the case back to the Superior Court of Chatham County, the trial court lacked jurisdiction following the federal court’s dismissal of their removal petition. We find this argument to be without merit.

“The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based. . . .” 28 USC § 1446 (b). Appellants filed their petition to remove the case over 30 days after they had been served with Sommers’s disposses-sory action, and after the trial court had already granted a writ of possession to Sommers. Since appellants themselves failed to follow proper procedures in their untimely attempt to remove this case to federal court, they will not now be heard to complain of any alleged error in the trial court’s continuing with the case after an allegedly improper remand. See, e.g., City of Demorest v. City of Baldwin, 251 Ga. App. 855 (554 SE2d 824) (2001) (“[I]t is well settled that when a party has himself induced what he subsequently assigns as error, he will not be heard to complain of it on appeal.”) (punctuation and footnote omitted).

Decided March 26, 2002.

James A. Yancey, Jr., for appellants.

Samuel Green et al., pro se.

Lee, Black, Scheer & Hart, R. Jonathan Hart, Christopher L. Rouse, for appellee.

2. Appellants further argue that the trial court erred by granting Sommers’s motion for summary judgment and by granting Sommers a writ of possession. We disagree.

When reviewing the grant or denial of summary judgment, we conduct a de novo review of the law and the evidence, construing the evidence and all reasonable deductions therefrom in favor of the non-movant. Strozzo v. Coffee Bluff Marina Property, 250 Ga. App. 212, 213 (1) (550 SE2d 122) (2001). Summary judgment is appropriate 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).

It is clear that Sommers was the legal owner of the property at issue. Therefore, all of Green’s counterclaims, which are based on the theory that Green was the owner of the property, are without merit. Appellants make no claim under any lease or other contract or under any cognizable theory of law that would grant them any legal right to possess the property. Since Sommers was the owner of the property at issue and entitled to possess it, the trial court did not err by granting him a writ of possession against appellants. See West v. Veterans Admin., 182 Ga. App. 767, 768 (1) (357 SE2d 121) (1987).

3. In light of our holding in Division 2 based on the final judgment in this action, appellants’ remaining enumeration of error is moot.

Judgment affirmed.

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


author: Phipps, Judge.

text:
    A01A1798.
    WILKES v. THE STATE.
    (562 SE2d 519)
   Phipps, Judge.

A jury found Raymond Wilkes guilty of homicide by vehicle in the first degree for causing the death of M. S. and guilty of causing serious injury by vehicle to M. S.’s mother. Wilkes appeals his conviction of homicide by vehicle, contesting the sufficiency of the evidence. Because the evidence was sufficient to sustain the conviction, we affirm.

Viewed in a light favorable to the verdict, the evidence adduced at trial showed that on July 1, 1998, at about 3:00 p.m., M. S. was a passenger in a Buick Century car driven by her mother as they traveled north on Interstate 95 in Camden County. Visibility was clear. Traffic was congested. Along that stretch of the interstate, a third lane was under construction. Barrels had been placed along both sides of the road, and construction equipment and workers were in the area. A sign warned, “Watch for slow moving traffic.” In addition, traffic was being diverted off the interstate at an exit about two miles ahead. This caused cars to slow down to merge into the right lane to exit. Although the speed limit had dropped from 70 to 55 mph in the construction zone, most vehicles, including the one in which M. S. was a passenger, had actually slowed to about 20 to 25 mph to take the detour.

A motorist, who was also driving north through the construction area but at some distance behind M. S. and her mother, testified that she noticed that a tractor-trailer truck approaching from behind in her lane was “going real fast.” Because it appeared to her that the truck was not slowing down and was not changing lanes to pass her, she changed lanes. As the truck passed her, her car “shook and there was just a shoooo (indicating sound) real fast and [she] could tell that [it] was going at an excessive rate of speed.” She estimated the truck’s speed at 70 mph.

As the truck advanced, it also caught the attention of the motorist driving immediately in front of the Buick carrying M. S. and her mother. He estimated that the truck was traveling about 60 mph as it was approaching the Buick. Because he saw that the truck was not slowing down at all, he accelerated and ran off the road “to get out of the way.” As he was pulling over, the truck crashed into the back of the Buick. Another motorist, who had been driving alongside the Buick just before the collision, testified that “the truck crunched up over the back part of the car. . . . [B]oth vehicles continued to slide.” When the vehicles stopped, they burst into flames. M. S.’s mother was able to exit the car, but M. S. could not be rescued before the car was engulfed in fire. She died of soot and smoke inhalation and thermal burns.

Wilkes was the driver of the truck. A few weeks after the incident, a Georgia State Patrol officer interviewed Wilkes at his place of employment. Wilkes told the officer that he had been driving trucks for approximately 40 years. He said that on the day of the incident he had noticed traffic slowing down. He remembered looking down to check his gauges; he looked right; he looked left. Then, as he prepared to brake, his truck collided with the back of the Buick. Wilkes estimated his speed was 50 to 55 mph. Apologizing, Wilkes said he had not seen the car in front of him before impact.

The officer also examined the collision site and the vehicles involved. He testified that the road at the scene was straight and level. By reconstructing the collision, he estimated that the truck’s minimum speed upon impact was between 55.42 mph and 60.30 mph. He determined that several factors contributed to the collision: the truck’s speed, slowing traffic, and Wilkes’s inattentiveness to his driving. He also determined that M. S.’s mother had not contributed to the collision.

During closing argument, Wilkes’s attorney pointed out that there was no evidence of drug or alcohol involvement. He repeatedly stated that Wilkes “didn’t do it intentionally.” The trial court instructed the jury on Wilkes’s sole defense of accident.

On appeal, Wilkes contends that the evidence was insufficient to sustain a conviction of homicide by vehicle. A person may be found guilty of homicide by vehicle in the first degree if that person, without malice aforethought, causes the death of another person through reckless driving, committed by driving any vehicle in reckless disregard for the safety of persons or property.

In support of his contention, Wilkes points to what he claims are inconsistencies or weaknesses in the evidence. But it is for the trier of fact, not this court, to resolve conflicts. This court does not weigh the evidence or determine witness credibility, but only determines whether, under Jackson v. Virginia, the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense. An appellant no longer enjoys the presumption of innocence, and we view the evidence in the light most favorable to the verdict.

Wilkes also asserts that he “accident [ally] and inadvertently caused the accident for which he was sorry.” “A person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking, intention, or criminal negligence.” “Criminal negligence as used in the statutes of this State means not merely such negligence as might be the foundation of a damage suit, but reckless and wanton negligence and of such a character as to show an utter disregard for the safety of others who might reasonably be expected to be injured thereby.” Here, the question for the jury was whether Wilkes drove the truck in a reckless manner, causing the death of M. S. Construed to favor the verdict, the evidence authorized the jury to find that Wilkes drove the tractor-trailer truck in a manner that exceeded mere negligence and constituted “reckless disregard for the safety of [others].” The evidence was sufficient to authorize the jury to find Wilkes guilty beyond a reasonable doubt of homicide by vehicle in the first degree.

Decided March 26, 2002.

Clyde M. Urquhart, for appellant.

Stephen D. Kelley, District Attorney, George C. Turner, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

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

       OCGA §§ 40-6-393 (a); 40-6-390.

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

        Hill v. State, 207 Ga. App. 65, 66 (1) (426 SE2d 915) (1993).

       Id.

       OCGA § 16-2-2.

       (Citation and punctuation omitted.) Keye v. State, 136 Ga. App. 707, 708 (1) (222 SE2d 172) (1975).

        Miller v. State, 236 Ga. App. 825, 829 (3) (513 SE2d 27) (1999).

       OCGA § 40-6-390 (a); see Miller, supra; Hill, supra.

       See Jackson, supra; Carson v. State, 250 Ga. App. 876 (553 SE2d 312) (2001); Miller, supra.


author: Smith, Presiding Judge.

text:
    A01A2309.
    WRIGHT v. DEPARTMENT OF NATURAL RESOURCES.
    (562 SE2d 515)
   Smith, Presiding Judge.

This appeal arises out of the trial court’s order granting summary judgment to the Georgia Department of Natural Resources (DNR) in a lawsuit filed by Winston Wright, in which Wright claimed that DNR’s actions constituted a taking of his alligators. The trial court granted summary judgment on a number of grounds. We find at least three of these grounds to be proper bases for granting summary judgment, and we therefore affirm.

Wright owns and operates a farm in south Georgia. In 1963, he fenced in a portion of the 30- to 40-acre pond on the farm, in which an indeterminate but small number of alligators were living. Since that time, he has fed the alligators and their offspring. In 1982, Wright applied for a license from DNR to establish an alligator farm, proposing to use the alligators he had confined and their offspring as brood stock. The application was denied. The denial letter dated January 29, 1983, referred to former OCGA § 27-1-3 (a), now OCGA § 27-1-3 (b), which states in relevant part that

[t]he ownership of, jurisdiction over, and control of all wildlife, as defined in this title, are declared to be in the State of Georgia, in its sovereign capacity, to be controlled, regulated, and disposed of in accordance with this title. . . . All wildlife of the State of Georgia is declared to be within the custody of the department for purposes of management and regulation in accordance with this title.

Based on this subsection, the commissioner who wrote the denial letter stated that “it is impossible for me to conclude that the alligators currently on your property are available to you to exploit in a commercial venture.” The commissioner added, “We are in a position to cooperate fully with you in your alligator farming operation; however, I must insist that your brood stock be obtained from a legal source, such as another alligator farmer, and not from the wildlife population of Georgia.” Wright was informed that he could appeal the denial of his application, and although he filed an appeal, he later dismissed it.

In 1983 or 1984, however, Wright was allowed to purchase alligator brood stock from a Florida alligator farm in order to establish an alligator farm on his property. He acquired eight alligators. He then applied for and received an alligator farming license, understanding that the alligators captured in 1963 were not included in the alligator farm. He was “specifically told [he] needed to keep the brood stock and the babies from that brood stock separate from the other alligators on [his] property.” Wright complied for a time, keeping the Florida brood alligators and their offspring in a separate, fenced enclosure. In 1991, however, the Florida alligators escaped into the larger portion of the pond in which the Georgia alligators lived. Wright’s license was renewed in 1991 on condition that he recapture and separate the brood animals before collecting any eggs. He did not do so, however, and has not been allowed to collect eggs since that time.

In 1996, Wright contracted with Fonseca Fur & Hide to sell all of the estimated 650 alligators on his property. DNR would not allow the sale of all the alligators, and Wright refused to agree to sell only the alligators for which he had been licensed.

Wright then filed this action against DNR seeking just and adequate compensation for the taking of the alligators. He alleged that because he fenced and fed the alligators enclosed in 1963, he acquired a property interest in the alligators and their offspring. He contends on appeal that the taking resulted from DNR’s failure to allow him to sell the alligators, for the taking of both the Georgia alligators in which he obtained a property interest and the Florida alligators purchased by him, and for the consequential damages resulting from DNR’s refusal to allow him to collect alligator eggs. In addition, he argues that he lost “economically viable use of his farm property due to the presence of a large number of alligators thereon, resulting from the Department of Natural Resources’ improper exercise of the police power granted it pursuant to law and regulations.”

The trial court granted summary judgment to DNR on several grounds. First, the court found that Wright did not own the alligators. The trial court noted that the right to farm the captured alligators had already been adjudicated, that Wright had dismissed the appeal of that decision, and that he “cannot now resurrect that issue.” The court also found that the statute of limitation barred Wright’s claims and that the State of Georgia cannot be sued for the presence of wildlife on a citizen’s property. We agree with these conclusions, and we affirm.

In concluding that Wright had no property interest in the alligators, the trial court relied on OCGA § 27-1-3, which provides that the ownership and control of wildlife are in the State of Georgia and concluded that Wright “does not and cannot own or control alligators which are not a part of a legal alligator farm which is operated in accordance with the Department of Natural Resources Rules and Regulations.” Wright points out that this Code section was not enacted until 1968, after he confined and began maintaining the Georgia alligators and obtained a property interest in so doing, and therefore that the section is inapplicable here.

Wright correctly argues that OCGA § 27-1-3 had not been enacted in 1963, but the law in effect at that time did state that “[i]t shall be unlawful for any person to hunt, trap, or in anywise engage in the activity of capturing alligators without first obtaining from the commission, a special annual alligator hunter’s license.” (Emphasis supplied.) Ga. L. 1956, pp. 590, 595. Wright did not have a license to capture the alligators when they were confined. And when he first claimed a property interest in 1982, OCGA § 27-1-3 provided that ownership of wildlife was in the State of Georgia. Because Wright failed to abide by the law at the outset in acquiring the alligators, and because the law in effect at the time he applied for a license placed ownership of wildlife in the State of Georgia, we cannot conclude that he ever obtained a property interest in those alligators.

But even if this were not so, and Wright somehow legally acquired a property interest in the Georgia alligators, the trial court correctly concluded that the lawsuit was barred by the applicable statute of limitation, which was four years after the right of action accrued. See generally OCGA § 9-3-30 (four-year statute of limitation for actions concerning damage to realty); Robinson v. Dept. of Transp., 195 Ga. App. 594 (394 SE2d 590) (1990) (four-year statute of limitation governing trespass to real property applicable in action alleging taking). See also Southfund Partners v. City of Atlanta, 221 Ga. App. 666, 667-668 (1) (472 SE2d 499) (1996). We find no merit in Wright’s argument that the operative date for determining when the limitation period began to run was February 6, 1996, the date on which DNR denied him the right to sell the alligators. Wright knew as early as 1982 that the State claimed to own the alligators on his property, and he was prohibited in 1991 from collecting eggs after he refused to separate the Georgia alligators from the brood alligators purchased in Florida. Consequently, he knew, or should have known, that the State claimed a property interest in the alligators and their offspring no later than 1991. The four-year statute of limitation had expired long before he filed this lawsuit in 1998.

Alternatively, Wright argues that if the State claims to own the alligators, because the State has not allowed him to remove the alligators, they constitute a nuisance and that the statute of limitation for this claim has not expired. Assuming, without deciding, that Wright’s complaint states a claim for nuisance, OCGA § 27-1-3 (b) provides that DNR is “immune from suit and shall not be liable for any damage to life, person, or property caused directly or indirectly by any wildlife.”

The trial court’s order granting summary judgment was correct for more than one reason, and a judgment right for any reason will be affirmed. See, e.g., Young Constr. v. Old Hickory House #3, 210 Ga. App. 559, 560 (2) (b) (436 SE2d 581) (1993). We therefore affirm.

We note Wright’s one-sentence argument in the conclusion of his appellate brief that even if this “Court should disagree with the law as presented herein regarding capturing of wild alligators, the cage should return to the trial court for a proper factual determination of which alligators came from the wild and which came from the brood stock in Florida.” But, as correctly argued by DNR, “[t]his request was not part of his complaint or within the province of the trial court.” An appellant cannot use an appellate brief to expand his or her “enumeration of errors by arguing the incorrectness of a trial court’s ruling not mentioned in the enumeration. Appellate review cannot be enlarged or transformed through switching, shifting, or mending one’s hold.” (Punctuation and footnotes omitted.) Anderson v. State, 251 Ga. App. 785, 786 (554 SE2d 811) (2001). See also Dental One Assoc. v. JKR Realty Assoc., 228 Ga. App. 307, 308 (2) (491 SE2d 414) (1997). We review errors made in the trial court rather than “assertions made by appellant and brought directly to this court.” (Punctuation and footnote omitted.) Anderson, supra at 786.

Decided March 26, 2002

Gregory, Christy & Maniklal, Hardy Gregory, Jr., Simpson & Cross, Ralph F. Simpson, Robert B. Sumner, for appellant.

Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, John C. Jones, Senior Assistant Attorney General, Devon A. Orland, Assistant Attorney General, Berrien L. Sutton, for appellee.

Judgment affirmed.

Barnes and Phipps, JJ, concur.

       Several times in this opinion, we refer to “Georgia alligators.” We do so reluctantly and solely for the sake of convenience and brevity. We recognize that for literally millions of Georgians and Floridians, the term “Georgia Gators,” or any approximation thereof, is an inherently offensive oxymoron. We apologize for any pain or distress caused by this unfamiliar and unfortunate juxtaposition.

       We note that the trial court’s order does not appear to have prohibited Wright from selling the Florida brood alligators or their offspring. The order recites that “[s]ummary judgment on ownership of the wild alligators and on the right to farm the wild alligators is granted in favor of Defendant.” (Emphasis supplied.)

       The trial court also concluded that a taking had not occurred because Wright did not establish a “complete taking,” that Wright had no constitutional right to an alligator farming license, and that there could be no taking under federal law exclusive of 42 USC § 1983. We need not reach Wright’s contentions regarding these issues, as the trial court’s decision was right for other reasons discussed in this opinion.