text:
    A99A1299.
    GAINES et al. v. INGLES MARKETS, INC. et al.
    (524 SE2d 766)
   Miller, Judge.

Clara and James Gaines sued Ingles Markets, Inc., Gable Electric Company and R. L. Franklin, Inc. (both contractors working on a construction project for Ingles) for injury to Mrs. Gaines’ knee when her grocery cart tipped forward and caused her to fall in an Ingles parking lot. The Gaineses claim that a trench back-filled with gravel was the cause of her fall and that the defendants failed to maintain the parking lot in a safe condition. Finding that Mrs. Gaines assumed the risk of her injury, the trial court granted summary judgment to the defendants. The Gaineses appeal, citing as error (1) the grant of summary judgment to the defendants, (2) the failure of the trial court to follow the directives of Robinson v. Kroger Co., and (3) the trial court’s holding as a matter of law that the “necessity” exception to the doctrine of assumption of the risk does not apply. Because the evidence is undisputed that Mrs. Gaines assumed the risk of her knee injury, we affirm.

1. Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Construed in favor of the Gaineses, the evidence shows that Mrs. Gaines drove to an Ingles store, where ongoing construction resulted in a gravel-filled trench traversing the full length of the parking lot. The parking spaces on the side of the trench closest to the store were full, so she parked on the opposite side, which required her to walk across the trench. With a cart full of groceries, she exited the store and proceeded to walk back across the trench when the cart suddenly tilted forward in the gravel and threw her to the ground. Her knee hit the cart and the gravel, resulting in injury. She testified that because the trench extended across the full length of the parking lot, she had no choice but to walk across it to enter and exit the grocery store.

The trial court premised its order granting summary judgment to all defendants on assumption of the risk, finding that Mrs. Gaines “attempted to traverse the trench with knowledge of the risks involved.” Although assumption of the risk is ordinarily not susceptible to summary adjudication, where the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion, summary judgment is appropriate. To show assumption of the risk, the defendant must present evidence that the plaintiff had (1) actual knowledge of the danger, (2) understood and appreciated the risks, and (3) voluntarily exposed herself to that risk.

In her deposition, Mrs. Gaines made several statements demonstrating her knowledge of the trench and its dangers. She stated that she had traversed the trench on a previous occasion, that she successfully walked across the trench to enter the store on the present occasion and was fully aware of it as she crossed, and that it was daylight and nothing distracted her attention as she walked back across the trench. Her statements establish conclusively that she had actual knowledge of the trench. Mrs. Gaines also testified that before going back across the trench, she slowed and gripped the handle of the cart tightly because she did not want the cart to turn over — the very harm she suffered. Mrs. Gaines appreciated the risk of crossing the trench with a grocery cart and, despite this, proceeded to cross. Because a jury could only draw the conclusion that Mrs. Gaines assumed the risk of injury to her knee, the trial court did not err in granting summary judgment to the defendants.

Decided November 8, 1999

Reconsideration denied December 6, 1999.

Phelps & Campbell, Richard D. Campbell, for appellants.

Johnson, Kane & Penna, Frederick A. Johnson, McLeod, Benton, Begnaud & Marshall, Michael C. Pruett, Fortson, Bentley & Griffin, J. Edward Allen, Jr., for appellees.

2. Shifting their focus from general negligence to premises liability, the Gaineses claim that the court did not follow the directives of Robinson v. Kroger Co., which requires that the invitee prove “(1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier.” The second prong is not shouldered until the defendant has established negligence on the part of the plaintiff, here shown by Mrs. Gaines’ admissions regarding her knowledge of the trench and its hazards.

A proprietor is not the insurer of an invitee’s safety, but is bound to exercise ordinary care to protect the invitee from unreasonable risks of which it has superior knowledge. Here both Mrs. Gaines and the defendants had equal knowledge of the hazard. Because Mrs. Gaines cannot satisfy the second prong of Robinson, she cannot recover damages for her injury. The evidence is plain, palpable, and undisputed, and under Robinson the defendants are entitled to summary judgment.

3. The Gaineses claim the “necessity” exception to assumption of the risk applies to the facts of this case. But this exception applies only in the context of a landlord-tenant relationship.

Judgment affirmed.

Pope, P. J., and Eldridge, J, concur.

       268 Ga. 735 (493 SE2d 403) (1997).

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

        Alexander v. Sportslife, 232 Ga. App. 538, 539 (2) (502 SE2d 280) (1998); Smith v. Mangram, 222 Ga. App. 585, 586 (474 SE2d 758) (1996).

        Desai v. Silver Dollar City, 229 Ga. App. 160, 164-165 (3) (493 SE2d 540) (1997); Smith, supra, 222 Ga. App. at 586.

       Supra, 268 Ga. at 748-749 (2) (b).

       Id.

       Id. at 740 (1); Lau’s Corp., supra, 261 Ga. at 492 (1).

       See Robinson, supra, 268 Ga. at 748-749 (2) (b).

        Hart v. Brasstown View Estates, 234 Ga. App. 389, 391 (506 SE2d 896) (1998); Hallberg v. Flat Creek Animal Clinic, P.C., 225 Ga. App. 212, 216-217 (2) (e) (483 SE2d 671) (1997).


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A99A2439.
    HOOKS v. COBB CENTER PAWN & JEWELRY BROKERS, INC.
    (527 SE2d 566)
   McMurray, Presiding Judge.

Appellant-plaintiff Daniel Hooks pawned his car, a 1990 BMW 535i which he valued at $8,000, for a $300 loan from appellee-defend-ant Cobb Center Pawn & Jewelry, Inc., secured by allowing the defendant to hold the title to the vehicle. The plaintiff attempted to redeem the vehicle approximately one month after the loan’s maturity date; however, the defendant refused to accept payment as untimely, repossessed the vehicle, and later sold it for $2,000. Thereafter, plaintiff sued defendant alleging violations of certain of the State’s title pawn statutes, its civil and criminal usury laws, breach of contract, conversion, and bad faith. The superior court granted defendant’s motion for summary judgment and, by silence thereon, impliedly denied plaintiff’s motion for partial summary judgment as to the issue of liability. Plaintiff appeals. For the reasons which follow, we affirm in part and reverse in part.

1. Summary judgment is properly granted

when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard , of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Rice v. Huff, 221 Ga. App. 592, 593 (472 SE2d 140) (1996).

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

2. Citing Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680), plaintiff claims that the superior court erred in granting summary judgment to defendant in that defendant’s evidence in support of its motion for summary judgment was contradictory for its admission that plaintiff appeared to have signed a second document at the time he signed the pawn ticket while contemporaneously denying that the document was a part of the parties’ agreement. Id. at 28 (1), 30. In this regard, plaintiff argues that the agreement between the parties consisted of two documents — the pawn ticket executed upon the loan he received and a second document as to which he asserts defendant has given contradictory testimony in support of its motion for summary judgment purporting to: (a) give him the right to recover the value of his vehicle as it exceeded the balance owing on such loan upon repossession, and (b) make him personally liable on the loan beyond the title in the vehicle he originally gave thereon as collateral.

The record reflects that defendant supported its motion for summary judgment by affidavit given by a corporate representative asserting that the pawn ticket constituted the entire agreement between the parties. Upon being deposed by plaintiff, such representative adhered to his affidavit, identified the second document as a repossession document, and, asked if the second document constituted a part of the agreement between the parties, testified only that the document appeared to have been signed by the plaintiff and that it was an “extra document” not necessary to the agreement. On its face, this testimony does not contradict defendant’s testimony indicating that the pawn ticket represented the entire agreement between the parties. Moreover, we note that the document of which plaintiff complains is not signed by the defendant, not notarized as required, and, for preprinted spaces left blank, makes no reference to the vehicle sub judice. Thus, we conclude that Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, supra, is here inapplicable. Further, we conclude that plaintiff has not offered more than allegation and conjecture contradicting defendant’s showing that the entire agreement between the parties consisted of the pawn ticket alone. As a consequence, plaintiff has not “borne [his] responsibility to point to specific evidence giving rise to a triable issue” regarding the agreement as consisting of two documents. Hambrick v. B. G. Swing Games Mgmt., 267 Ga. 597, 599 (481 SE2d 816). Accordingly, the superior court properly granted defendant summary judgment as to the pawn ticket as representing the entire agreement between the parties.

3. Plaintiff contends that the superior court erred in granting defendant summary judgment, arguing that the instant title pawn transaction is unenforceable as void under OCGA § 44-12-131 (a) (6) and (b) for the pawn ticket’s underrepresentation of the applicable annual percentage rate of interest. In this regard, plaintiff contends that contrary to 300 percent as disclosed by the pawn ticket, the actual annual percentage rate of interest was 304.167 percent, a deviation greater than the tolerance allowed under the Code of Federal Regulations (CFR) § 226.22 (a) (2) (deviation between annual percentage rate of interest disclosed and actual annual percentage rate of interest must not exceed 1/8 of one percent). In this regard, plaintiff correctly points to OCGA § 44-12-138 (b) (5) as requiring that annual percentage rates applicable to pawn transactions in Georgia be calculated under the federal truth in lending law and regulations. Further, he correctly notes that 25 percent is the maximum interest and charges rate allowed Georgia pawnbrokers per 30-day period, OCGA § 44-12-131 (a) (4), and that the Code of Federal Regulations formulates the allowable annual percentage rate of interest as equal to the unit-period rate times the number of unit-periods per year. 12 CFR § 226, App. J (B) (1).

As to this claim of error, the parties dispute only the number of unit-periods per year as applicable to the annual percentage rate of interest calculation. Citing 12 CFR § 226, App. J (B) (5) (vii) as controlling, plaintiff contends that the correct number of unit-periods in the instant action was 12.167. Defendant argues that the correct unit-period number is 12 citing 12 CFR § 226.17 (c) (3) (iii) (creditor may disregard effect of differing numbers of days in the months of year when making calculations and disclosures) and OCGA § 44-12-130 (“month” defined as that period of time from one date in a calendar month to corresponding date in following calendar month). 12 CFR § 226, App. J (B) (5) (vii) provides:

In a single advance, single payment transaction in which the term is less than a year and is not equal to a whole number of months, the number of unit-periods in the term shall be 1, and the number of unit-periods per year shall be 365 divided by the number of days in the term.

(Emphasis supplied.)

We are required to construe the foregoing language literally in the absence of statutory contradiction. Telecom*USA v. Collins, 260 Ga. 362 (1), 363 (393 SE2d 235). So construing such language, we conclude that in single advance, single payment transactions in which the term is less than a year and not equal to a whole number of months, as here, pawnbroker-creditors must make the unit-period determination on the basis of the term as a number of days. Accordingly, in the instant circumstances the allowable annual percentage rate of interest was 304.167 percent (25 percent times 12.167). This is not inconsistent with discretionary authority allowing pawnbroker-creditors to disregard the effects of months having different numbers of days under 12 CFR § 226.17 (c) (3) (iii), in that the term is here not one of months but of a specified number of days. In any event, it is only in the instance that the pawnbroker-creditor has charged interest and charges exceeding the amounts permitted under OCGA § 44-12-131 (a) that the pawn transaction is rendered void. OCGA § 44-12-131 (b). We conclude that defendant has not done so in the case sub judice. Accordingly, the superior court properly granted defendant summary judgment on plaintiff’s claim that the instant pawn transaction was unenforceable as void under OCGA § 44-12-131 (a) (6) and (b).

4. Plaintiff contends that the terms of the pawn ticket authorizing defendant to repossess and sell his vehicle for his default are unenforceable under OCGA § 11-2-302, due to unconscionability for inadequacy of consideration. Although OCGA § 11-2-302 by its terms applies to transactions involving a sale, Interstate Security Police v. C & S Emory Bank, 237 Ga. 37, 38 (226 SE2d 583), we nonetheless find nothing unconscionable about imposing such terms in a motor vehicle title pawn transaction. Francis v. Union Bank, 183 Ga. App. 84 (1), 85 (357 SE2d 837). This is particularly the case when, as here, plaintiff-pledgor-debtor is a sophisticated businessman who deposed that he had previously entered into an identical title pawn transaction with the defendant.

5. The plaintiff also contends that the superior court erred in granting summary judgment to defendant on his remaining tort claim as to defendant’s conversion of personal property not returned to him after his car was repossessed. To establish a prima facie case for conversion, plaintiff is required to show title to the property or the right of possession, actual possession in defendant, demand for its return, and defendant’s refusal. Jennette v. Nat. Community Dev. Svcs., 239 Ga. App. 221, 225 (4) (520 SE2d 231). The plaintiff deposed that despite his demand, defendant had not returned everything belonging to him taken from his vehicle upon its repossession. Defendant deposed to the contrary. Accordingly, we conclude that the superior court erred in granting defendant summary judgment as to plaintiffs conversion claim for personal belongings taken from his vehicle and not returned after its repossession. Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1), supra.

6. Further, the plaintiff contends that the interest charged in this case violated the State’s criminal usury statute, OCGA § 7-4-18, for charging him interest in excess of five percent per month by a unified finance charge not setting out interest and pawnbroker charges separately. Correctly noting that this question is one of first impression on appeal, the plaintiff argues that the two statutes may be harmonized, requiring pawnbrokers to set out pawnshop charges not exceeding twenty percent separately. We disagree, concluding that the statutes are in conflict and cannot be reconciled.

Conflict appears on the face of the statutes in at least several fundamental dimensions. First, OCGA § 44-12-131 (a) (4) (A) and (B) apply to both interest and pawnshop charges up to 25 percent for the first 90 days of the loan and 12.5 percent thereafter. This is in conflict with the usury statute’s five percent maximum interest rate per month. OCGA § 7-4-18 (a). Second, the pawnbroker statute authorizes an additional 12.5 percent interest charge in the event collateral is redeemed in the statutory grace period. OCGA § 44-14-403 (b) (3). This is inconsistent with the five percent monthly interest limit of the usury statute as well. Third, the statutes are inconsistent as to storage charges authorized. The usury statute allows a storage charge of $0.25. The pawnbroker statute allows for a daily storage fee of $5. OCGA § 44-12-131 (a) (4) (C) (ii). Lastly, the action at law remedy in superior court for violating the pawnbroker statute substantially differs with the automatic forfeiture of interest and other charges that result upon violation of the usury statute. See OCGA § 44-12-131 (a) (7).

We must look to the general rules of statutory construction in construing conflicting statutes. In this regard, “a specific statute will prevail over a general statute, absent any indication of a contrary legislative intent, to resolve any inconsistency between them. [Cits.]” (Emphasis in original.) Hosp. Auth. of Gwinnett County v. State Health Planning Agency, 211 Ga. App. 407, 408 (2) (438 SE2d 912). Moreover, while not favored, a statute may be deemed to have repealed an earlier statute where the statute later in time appears to give comprehensive expression to the whole law on the subject. Kyles v. State, 254 Ga. 49, 50 (326 SE2d 216).

Applying the foregoing rules of statutory construction in the case sub judice, we conclude that the pawnbroker statute, OCGA § 44-12-130 et seq., comprehensively and specifically regulates the subject of pawnshop transactions, including, in particular, the amount of interest and charges on any pawn transaction. There is no evidence that the legislature intended it to be otherwise. Moreover, there appears to be evidence of a legislative intent not to cap interest allowable on a pawn transaction to that permitted by the usury statute except to provide that interest and charges on such a transaction not exceed 25 percent of the loan amount, OCGA § 44-12-131 (a) (4) (A) — this because the 1992 amendment to such pawn statute changed the prior law which capped interest on pawn transactions at two percent per month plus other charges. OCGA § 44-12-131. In light of the foregoing, we conclude that the pawnbroker statute here controls, and that the instant transaction is not governed by the five percent limit imposed on general loans by the usury statute. Kyles v. State, 254 Ga. at 50, supra; Hosp. Auth. of Gwinnett County v. State Health Planning Agency, 211 Ga. App. at 408 (2), supra; see Moore v. Comfed Sav. Bank, 908 F2d 834, 842 (IV) (B) (11th Cir. 1990) (whether called interest or a pawnbroker charge by the parties to a loan contract, such charges considered interest under usury statute); but see Fryer v. Easy Money Title Pawn, 183 Bankr. 654, 656 (S.D. Ga. 1995) (five percent interest cap of usury statute applicable to pawn transactions in that the word “interest” as used in the usury statute not deemed synonymous with terms “interest and pawnshop charges” as used in pawnshop statute).

7. In light of our disposition of Division 2, as above, we need not address plaintiff’s remaining claims of error.

Decided November 10, 1999

Reconsideration denied December 6, 1999

Kris K. Skaar, James M. Feagle, for appellant.

Cornelison & Van Gelderen, Leon Van Gelderen, John A. Ziolo, for appellee.

Judgment affirmed in part and reversed in part.

Johnson, C. J., and Phipps, J., concur.

       In this instance, 365 divided by 30 or 12.167.


author: Ruffin, Judge.

text:
    A99A1650.
    BROWN v. ALLIED PRINTING INK COMPANY.
    (526 SE2d 626)
   Ruffin, Judge.

James Brown was fired from his job at Allied Printing Ink Company (“Allied”) after he tested positive for cocaine during a random drug screen. Brown, who is black, sued Allied under Title VII of the Civil Rights Act of 1964, alleging that the real reason Allied discharged him was because he had complained of race discrimination at work. The trial court granted Allied’s motion for summary judgment, and Brown appeals. We affirm.

To win summary judgment under OCGA § 9-11-56, Allied had to show that there was no genuine issue of material fact and that the undisputed facts, taken in the light most favorable to Brown, warranted judgment as a matter of law in favor of Allied. We review the trial court’s summary judgment ruling de novo.

Viewed in this light, the evidence showed as follows. Allied hired Brown in 1989 to work as a mill operator. Brown alleges that from the first day of his employment, he and other black employees “were constantly and consistently made the butt of racial jokes, slurs, and innuendo.” Brown repeatedly complained to Allied’s management, but the harassment continued. Brown later moved into a higher paying position as lab technician at Allied, but — he alleges — only after fighting for a race-neutral selection process.

In 1995, Allied adopted a Drug Free Workplace Program that, among other things, prohibited employees from having illegal drugs present in their bodies. The new program included random drug testing of employees “performing safety-sensitive job functions as determined by Company management,” and it provided that failing such test would subject the employee “to discipline up to and including discharge.” Employees could challenge the test results or offer an explanation for a positive result, but management had sole discretion whether to accept an explanation or order a re-test. Although one objective of the program was to provide chemically dependent employees with access to counseling or rehabilitation programs, the new drug policy stated:

It is . . . the responsibility of each employee to seek help BEFORE drug and/or alcohol-related problems lead to disciplinary action up to and including discharge of employment. Once a violation of this policy has occurred, seeking rehabilitative or counseling assistance will not necessarily lessen disciplinary action and may, in fact, have no bearing on the determination of appropriate disciplinary action.

The new drug policy was communicated to Brown.

Brown was chosen for random drug testing in May 1995. After consenting to the testing, which was performed by an independent company, he tested positive for cocaine. According to Vince Bonomo, the director of operations of the testing company, Brown’s test sample “was handled in the ordinary course of our business and tested by the laboratory analysts in the same manner in which all other drug tests are conducted,” in compliance with federal and state law. After receiving a written copy of the results of Brown’s test, Allied’s general manager, Gary Smith, called Bonomo to confirm that Brown had tested positive. Smith fired Brown the next day.

According to Brown, he was not, in fact, selected randomly for drug testing, but was “set up” by Allied. Brown asserts that he should not have been tested at all because his lab position was not safety-sensitive. He also claims that he does not use drugs and “therefore had ingested nothing that would have yielded the reported positive result.” Brown requested a re-test, but states that he was given an impossible procedure to follow: he was to mail a request in writing, along with $125, to the company that performed the test; the request had to arrive within 24 hours; and the company would only re-test the same sample, not a new one. Brown did not try to follow the procedure. He contends that he told Smith he would do anything to keep his job, including take a drug rehabilitation course, but Smith replied, “[Yjou’re fired, go get a lawyer.”

Brown also contends that Allied treated Tim Lynn, a white former employee who had a drug problem, differently than it treated him. Brown submitted an affidavit from Lynn, who averred that he had a cocaine problem that was disclosed to Allied, that he wanted treatment, and that he went to Smith for help. With Smith’s “full knowledge and assent,” Lynn entered a six-week treatment program and then returned to work. About a week later, he became “totally fed up” with his working conditions and with problems unrelated to work and “walked off the job.” Allied disputes Lynn’s account, contending that it was not aware of Lynn’s drug problem until the day he had a violent outburst at work, for which he was fired. It is undisputed that Allied did not have a drug testing program in 1989, when the incident occurred.

Allied moved for summary judgment, and the trial court granted the motion on the grounds that Brown failed to establish a prima facie case of race discrimination under Title VII and that Brown failed to show that Allied’s legitimate, nondiscriminatory reason for firing him was a pretext for race discrimination.

1. Brown first argues that the trial court misinterpreted the Supreme Court’s ruling in Lau’s Corp. v. Haskins and applied an improper standard of review to Allied’s summary judgment motion. Brown urges that he is entitled to survive summary judgment if he can show that there is a jury issue as to at least one of the essential elements of his claim. That, however, is not the law. Because the plaintiff bears the burden at trial of proving every essential element of his claim, a defendant is entitled to summary judgment if it shows that there is no evidence to support any one of those elements. The trial court applied the proper standard.

2. Next, Brown argues that the trial court erred in ruling that he failed to establish a prima facie case of race discrimination under Title VII. We agree with Brown that the trial court used an inappropriate analytical framework to determine whether Brown established a prima facie case. Applying the proper framework, we nevertheless conclude that Brown failed to meet his burden.

In the absence of direct, “smoking gun” evidence of intentional discrimination, a Title VII plaintiff may prove such discrimination by proceeding under the burden-shifting framework outlined by the United States Supreme Court in Texas Dept. of Community Affairs v. Burdine and McDonnell Douglas Corp. v. Green. First, the plaintiff must establish a prima facie case of discrimination, the elements of which will vary depending upon the particular facts of the case and the nature of the alleged discrimination. If the plaintiff establishes a prima facie case, then the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the challenged employment decision. If the defendant carries this burden, then the plaintiff must prove that the articulated reason was really a pretext for discrimination.

The trial court ruled that, in order to establish a prima facie case of discrimination, Brown had to show that Allied replaced him with a person who was not black. This is incorrect. In cases involving alleged bias in the application of discipline for violation of work rules, the plaintiff must show that (1) he is a member of a class protected under Title VII; (2) he was disciplined for violating a work rule; and (3) either (a) he did not violate the work rule, or (b) he engaged in misconduct similar to that of a person outside the protected class, but was disciplined more severely. Contrary to the trial court’s ruling, a plaintiff in a discriminatory discipline case need not prove that he was replaced by a person outside his protected class.

But Brown still failed to establish a prima facie case. Although he satisfied the first two elements, he did not satisfy the third. It is undisputed that Brown is black and thus a member of a protected class under Title VII, and that Brown was discharged for allegedly violating Allied’s drug policy. Brown presented no evidence, however, that he did not violate the policy or that a similarly situated white employee was treated differently.

(a) Brown admits that his drug test was positive, but denies that it was “random.” Although he asserts that he never should have been tested in the first place, Allied’s drug program gave management the discretion to determine which positions were safety-sensitive so as to qualify for random testing. And despite Brown’s claim that he was the first person “randomly” tested under the new policy, he admitted during his deposition that he paid no attention to whether other employees had been tested. Brown implies that Allied somehow “rigged” the test, but he put forth no evidence to counter the affidavit of Vince Bonomo that his testing sample was handled by an independent company in the ordinary course of business in the same way as all other samples. Simply because Brown was displeased with Allied’s re-testing procedure does not mean that the test results were wrong. Brown, opted not to get ,a re-test, either through Allied’s procedure or on his own. In short, there simply is no evidence, beyond Brown’s unsupported assertions, that the test was “rigged” or that the result was incorrect.

(b) Brown also failed to show that a white employee engaged in similar misconduct but was treated differently. Brown presented evidence that Allied did not fire Tim Lynn, a white former employee with a known cocaine problem, but instead allowed him to enter a rehabilitation program and return to work. For the purpose of summary judgment, we assume Brown’s version of events to be true. Although Brown was not required to show that he and Lynn engaged in identical misconduct, he did have to prove sufficient similarity between the two situations to permit a meaningful comparison.

Decided December 6, 1999.

Raymond J. OReilly, for appellant.

Webb, Tanner & Powell, Robert J. Wilson, for appellee.

Several key differences between Brown’s situation and that of Lynn, however, prohibit a meaningful comparison. The incident concerning Lynn occurred years before Allied adopted its Drug Free Workplace Program prohibiting employees from having illegal drugs present in their bodies and providing that a positive drug test result could result in termination. And, unlike Brown, Lynn never failed a company-ordered drug test. Moreover, Lynn asked Allied for help before he was accused of any wrongdoing, whereas Brown did not offer to enroll in a rehabilitation program until after he was caught with drugs in his system. Under Allied’s new policy, applicable to Brown, employees who want help with drug problems must seek help before a drug screen reveals drugs in their system. Thus, even though Lynn had a drug problem, he did not violate a company policy subjecting him to discharge, and he took the initiative in seeking help for his problem. Because Brown and Lynn were not similarly situated, Allied’s more lenient treatment of Lynn cannot establish the third element of Brown’s prima facie case.

Because Brown failed to establish a prima facie case of race discrimination, the trial court properly granted Allied’s motion for summary judgment.

3. In light of our decision in Division 2, we need not address Brown’s remaining enumerations of error.

Judgment affirmed.

Andrews, P. J, and Ellington, J., concur.

       42 USC § 2000e et seq.

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

        Swiss Bank Corp. v. Thomas, Conner & McDonald, P.A., 236 Ga. App. 890-891 (514 SE2d 68) (1999).

        See Lau’s Corp., supra.

       450 U. S. 248 (101 SC 1089, 67 LE2d 207) (1981).

       411 U. S. 792 (93 SC 1817, 36 LE2d 668) (1973).

        Jones v. Gerwens, 874 F2d 1534, 1538-1539 (11th Cir. 1989).

       Id. at 1538.

       Id.

       Id. at 1540; Kut-Kwick Corp. v. Johnson, 189 Ga. App. 500, 502-503 (1) (376 SE2d 399) (1988).

       See Jones, supra at 1540-1541.

       See Chaney v. Southern R. Co., 847 F2d 718 (11th Cir. 1988) (plaintiff, who was caught smoking marijuana at work, was not similarly situated to employees who had admitted to off-duty drug use); Grooms v. Wiregrass Elec. Cooperative, 877 FSupp. 602 (M.D. Ala. 1995) (defendant’s drug policy required testing of holders of commercial driver’s licenses; commercial driver who failed test and was fired was not similarly situated to employees with drug problems who were not fired and did not hold commercial driver’s licenses).


author: Barnes, Judge.

text:
    A99A1756.
    THE STATE v. GARNETT.
    (527 SE2d 21)
   Barnes, Judge.

The State appeals from the trial court’s order granting Gordon Garnett’s motion to suppress evidence of his refusal to submit to a state-administered test of his blood. Because we find the trial court erroneously interpreted the word “entirety” in OCGA § 40-5-67.1 (b), we reverse.

On September 16,1997, a police officer arrested Garnett for driving under the influence of alcohol in violation of OCGA § 40-6-391 (a) (1) and read him the implied consent warning from a pink card. During the motion to suppress hearing, the police officer was asked to read from the card as he read to Garnett on the evening of Garnett’s arrest. The hearing transcript shows that the officer omitted the last word, “law,” of the implied consent warning during this testimony. In its order granting the motion to suppress, the trial court found that the implied consent warning on the officer’s pink card “contains the exact language of the warning that must be given.” However, because the transcript showed that the officer omitted the last word when he read the card during the hearing, the trial court ruled that he did not give the warning to Garnett in its “entirety.” It then ruled that it was required to suppress evidence of Garnett’s refusal to submit to a blood test because the officer omitted a word during his testimony, even though it also found that the omission of this word did not alter the substance of the required warning. Under the trial court’s interpretation of OCGA § 40-5-67.1 (b), our courts cannot consider whether the substance of the warning has been changed if a word is omitted because the warning has consequently not been given in its “entirety.”

We disagree with the trial court’s interpretation of OCGA § 40-5-67.1 (b). This statute provides that the implied consent notice “shall be read in its entirety but need not be read exactly so long as the substance of the notice remains unchanged.” Construing this sentence as a whole, it is clear that through the use of the word “entirety,” the legislature intended for police officers to read the implied consent warning all the way through, instead of reading, for example, only half of it. By also providing that it “need not be read exactly so long as the substance of the notice remains unchanged,” the legislature allowed for human error in the reading of the warning, such as the omission of a word or two, as long as its meaning was not affected.

This construction is also consistent with decisions in which this court has found that the omission of words from the implied consent notice did not alter its substance. See State v. Moncrief, 234 Ga. App. 871, 873 (5) (508 SE2d 216) (1998); State v. Levins, 234 Ga. App. 739, 741 (3) (507 SE2d 246) (1998) (physical precedent). Because we find the police officer’s omission of the last word of the implied consent notice did not alter its substance, the trial court erred when it granted Garnett’s motion to suppress.

Decided December 6, 1999.

Spencer Lawton, Jr., District Attorney, Kevin T. Almeroth, Assistant District Attorney, for appellant.

Simon, Booth, Cook & Cardillo, Frank G. Cardillo, for appellee.

Judgment reversed.

Blackburn, P. J., and Eldridge, J., concur.

       The last sentence of the notice should read: “Will you submit to the state administered chemical tests of your (designate which tests) under the implied consent law?” OCGA § 40-5-67.1.


text:
    A99A2400.
    SIMPSON v. THE STATE.
    (527 SE2d 23)
   Ruffin, Judge.

A jury found Timothy Simpson guilty of two counts of burglary. On appeal, Simpson challenges two evidentiary rulings by the trial court. We find no error and affirm.

Simpson was charged with burglarizing three homes in Floyd County. The first burglary took place on August 14, 1997. That day, Danny Brewer saw an unfamiliar pickup truck with two men inside back out of the driveway at the home of his neighbor, Bill Clanton. Brewer wrote down the tag number and later called police. According to Clanton, lawn equipment was taken from his garage that day, and there were pry marks on the door of his house that apparently were made by a screwdriver. Police traced the tag number to Simpson’s father, and Brewer identified Simpson’s truck from a photograph as the one he saw at Clanton’s house.

The second burglary happened on October 21, 1997, when someone broke into Mike Gable’s house and stole guns, televisions, a videocassette recorder, and jewelry. The back door appeared to have been pried open with a screwdriver. Gable’s neighbor, Lee Ponder, saw an old pickup truck pull out of Gable’s carport that day. At trial, however, Ponder was unable to identify Simpson’s truck as the one he saw.

In the third burglary, on October 23,1997, Maurice Orr returned home and saw an unfamiliar pickup truck in his driveway. Inside the house, Orr found a man carrying a television in the hallway. He got into a scuffle with the man, and then another man came down the hall. Both men fled in the truck. Orr gave the tag number to police, who found the truck about 30 minutes later behind a pawnshop. The truck belonged to Simpson. At trial, Orr identified Simpson as one of the burglars.

Simpson was charged with all three burglaries, but the trial court directed a verdict of acquittal as to the second one.

1. In his first enumeration, Simpson argues that the trial court erred in allowing the State to introduce evidence of a pending loitering charge against him to show intent and bent of mind. The facts surrounding the charge are as follows. While on patrol on September 30, 1997, Officer John Blalock saw Simpson standing in the front yard of a house, staring at the house. Simpson then went to the back yard of a neighboring house and peered inside. Blalock approached him, did a pat-down search, and discovered a screwdriver in his pocket. Simpson gave conflicting explanations for his behavior. Bla-lock arrested him for loitering and prowling.

The trial court held a hearing to decide the admissibility of the evidence. Defense counsel agreed that the incident, which occurred in September, was close in time to the burglaries, which took place in August and October. Counsel objected, however, that the loitering incident was not actually a burglary. The trial court stated that the only reason the incident “didn’t turn out to be a burglary [was] because the police halted it before it happened.” The court ruled that the incident was admissible to show Simpson’s intent and bent of mind.

We uphold the trial court’s ruling. Evidence of other offenses is admissible if the State shows that (1) the evidence serves an appropriate purpose, such as showing the defendant’s intent or bent of mind; (2) the accused committed the other offense; and (3) the other offense and the offense for which the defendant is on trial are sufficiently related “such that proof of the former tends to prove the latter.” The other offense need not result in a conviction to be admissible as a similar transaction.

Simpson argues that the other offense was not similar to the burglaries. There were, however, several important similarities. In addition to being close in time to the burglaries, the loitering incident appeared to be a foiled attempt at burglarizing another residence. Moreover, Simpson had a screwdriver in his pocket when he was arrested for loitering, and a screwdriver was used to gain entry into two of the three burglarized houses. Although at least two of the burglaries involved two men in a pickup truck, whereas Simpson apparently was alone in the loitering incident, the other offense need not be identical to the charged offense to be admissible. We find sufficient similarity between the incidents to support the trial court’s ruling.

Decided December 6, 1999.

John F. McClellan, Jr., for appellant.

Tambra P. Colston, District Attorney, Fred R. Simpson, Assistant District Attorney, for appellee.

2. In his second enumeration, Simpson contends that the trial court erred in ruling that a defense witness’ prior criminal conviction was admissible. At the start of trial, Simpson announced that he might call his mother as a witness to testify that the truck involved in the burglaries — which was registered to Simpson’s father — had been stolen. Simpson moved to exclude evidence that Mrs. Simpson had been convicted of making a false report of a crime for reporting the truck as stolen. The trial court ruled that the State could introduce Mrs. Simpson’s certified conviction, along with the testimony of the officer who arrested her, as rebuttal evidence if she took the stand. The defense elected not to call Mrs. Simpson.

Simpson argues that evidence of his mother’s conviction was inadmissible because her credibility was a matter for the jury to decide. But Georgia law permits the impeachment of a witness by proof of her conviction of a crime of moral turpitude. Because making a false report of a crime qualifies as a crime of moral turpitude, evidence of Mrs. Simpson’s conviction would have been admissible. Thus, the trial court did not err.

Judgment affirmed.

Andrews, P. J, and Ellington, J., concur.

       (Punctuation omitted.) Grant v. State, 237 Ga. App. 892, 894 (2) (515 SE2d 872) (1999).

       Id.

        Raulerson v. State, 268 Ga. 623, 631 (8) (491 SE2d 791) (1997) (“The admissibility of evidence of other criminal acts by the defendant is not solely determined by the number of similarities between two incidents, particularly where the independent crime is admissible to show bent of mind”).

       See id.; Methvin v. State, 189 Ga. App. 906, 909 (2) (377 SE2d 735) (1989).

        Harwell v. State, 270 Ga. 765, 768 (2) (512 SE2d 892) (1999).

       See In the Matter of Holland, 253 Ga. 428 (321 SE2d 338) (1984) (false swearing is crime of moral turpitude); Ramsey v. Powell, 244 Ga. 745 (262 SE2d 61) (1979) (false swearing is “ ‘crime involving moral turpitude,’ since it involves dishonesty”).


author: Blackburn, Presiding Judge.

text:
    A99A1317.
    WASHINGTON et al. v. DEPARTMENT OF HUMAN RESOURCES et al.
    (526 SE2d 354)
   Blackburn, Presiding Judge.

Marzell Washington, individually and as guardian of Charlie C. Edwards, appeals the trial court’s order granting summary judgment to the defendants, Middle Flint Behavioral Health Care Community Service Board (Service Board), Dooly County Mental Retardation Center (Retardation Center), Linda Lawson and Jane Doe, in the underlying negligence action. The trial court granted the defendants’ motion for summary judgment on several independent grounds. Among other issues, Washington contests the trial court’s determination that the defendants’ actions were protected by official or qualified immunity. For the reasons set forth below, we affirm the trial court’s grant of summary judgment to the Service Board and the Retardation Center, and we reverse the trial court’s grant of summary judgment to the Retardation Center’s employees, Lawson and Doe.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards.” (Emphasis in original.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). On appeal from a grant of summary judgment, this Court conducts a de novo review of the record, construing the evidence and all inferences therefrom in favor of the non-moving party. Maddox v. Southern Engineering Co., 231 Ga. App. 802, 803 (500 SE2d 591) (1998); Lane v. Spragg, 224 Ga. App. 606 (481 SE2d 592) (1997).

Padilla v. Hinesville Housing Auth., 235 Ga. App. 409 (509 SE2d 698) (1998).

In her complaint, Edwards, a mentally retarded and mute adult, through her guardian, Washington, alleges that her feet suffered second degree burns as a result of the conduct of Lawson and Doe, employees of the Retardation Center. The complaint further alleges that Edwards attended the Retardation Center, which provided a bus to and from Edwards’ home. On the day of the incident, Edwards experienced a bowel movement prior to boarding the bus to go home. The complaint alleges that after Edwards’ bowel movement, defendants Lawson and Doe placed Edwards in a bathtub filled with hot water causing her to suffer both mental and physical pain which she was unable to voice because of her muteness.

Defendant Lawson avers that as Edwards was being prepared to be transferred home, she soiled herself with a bowel movement. Lawson and another employee, Martha Wade, decided to change Edwards’ clothes and give her a partial bath prior to transferring her home. The partial bath was performed by running several inches of water in a bathtub, mixing hot and cold water to a temperature that in their judgment was appropriate. Edwards stood in the water while Lawson and Wade bathed her with the water. The water splashed the employees, and it was not unreasonably warm. Lawson did not observe any abnormal discoloration, burns, or blisters on Edwards’ feet as she dressed Edwards in her shoes and socks. Lawson further averred that in her experience in caring for Edwards, Edwards was able to communicate her likes and dislikes through gestures and sounds, and that Edwards did not display any evidence of pain or discomfort during her bath, while she was being dressed, or while she was being driven home.

1. The plaintiffs contend that the trial court erred in finding that the Service Board and the Retardation Center were entitled to immunity pursuant to OCGA § 37-2-11.1 (c) (1).

Pursuant to such Code section, “community service boards are public agencies in their own right and shall have the same immunity as provided for counties.” The 1991 amendment to Art. I, Sec. II, Par. IX of the Georgia Constitution of 1983 provided that the defense of sovereign immunity to tort liability could not be waived by the mere purchase of insurance coverage, but that it could be waived by a legislative act which so provided. “In the exercise of its constitutional authority to waive the defense of sovereign immunity, the General Assembly has enacted the Georgia Tort Claims Act. . . . However, the waiver of sovereign immunity afforded by that statute does not extend to a county.” Woodard v. Laurens County, 265 Ga. 404, 405 (1) (456 SE2d 581) (1995). See also OCGA § 50-21-22 (5).

Therefore, the Service Board and the Retardation Center are afforded sovereign immunity. Although the plaintiffs contend that the Retardation Center is a separate entity, the evidence indicates that the Retardation Center is a subdivision of the Service Board created pursuant to OCGA §§ 37-2-6 and 37-2-6.1. The trial court correctly determined that the Service Board and the Retardation Center are provided immunity pursuant to OCGA § 37-2-11.1 (c) (2).

2. We now turn to whether the employees of the Retardation Center, Lawson and Doe, are afforded official immunity.

Official immunity is applicable to government officials and employees sued in their individual capacities. Damage suits are maintainable in this state against government officers and agents for failure to perform ministerial duties, but such officers and employees are immune from negligence claims when the acts complained of involve a discretionary function of an office. Whether the acts upon which liability is predicated are ministerial or discretionary is determined by the facts of the particular case. A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act, however, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed. A government employee who is invested with discretion and empowered to exercise his judgment in the course of execution of his duties is immune from liability when performing discretionary tasks. The question whether a duty is ministerial or discretionary turns on the character of the specific act, not the general nature of the official’s position.

(Citations and punctuation omitted.) Stone v. Taylor, 233 Ga. App. 886, 888 (2) (506 SE2d 161) (1998).

This is not a case involving the supervision of an inmate work detail, see Parrish v. State of Ga., 270 Ga. 878 (514 SE2d 834) (1999), a school official’s duty to monitor students, see Payne v. Twiggs County School Dist., 232 Ga. App. 175, 177 (501 SE2d 550) (1998), or a county employee’s decision regarding adoption of inspection and maintenance procedures, see Woodard, supra at 407 (2). In the present case, the allegedly negligent act of bathing Edwards in water that was too hot relates to the ministerial acts of Lawson and Doe in the performance of their official duties in caring for Edwards. The allegations in this case surround the execution of the employees’ specific duty to bathe a mentally retarded mute adult, and we must consider that these actions are ministerial in nature.

Although the Supreme Court of Georgia recently addressed the distinctions between discretionary and ministerial functions in the context of the Georgia Tort Claims Act (GTCA) in Brantley v. Dept. of Human Resources, 271 Ga. 679 (523 SE2d 571) (1999), that case dealt with the actions of State employees rather than county employees. The Supreme Court specifically noted that county employees fell outside the scope of the GTCA. Id.

Decided November 23, 1999

Reconsideration denied December 7, 1999

Copeland & Haugabrook, Tyrone N. Haugabrook, Karla L. Walker, for appellants.

Jones, Cork & Miller, Thomas C. Alexander, for appellees.

The trial court erred in granting summary judgment to Lawson and Doe.

3. The trial court properly determined that the record contains no evidence which would authorize the imposition of punitive damages. OCGA § 51-12-5.1 (b) provides that an award of punitive damages requires clear and convincing evidence that “the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of . conscious indifference to consequences.” The evidence contained in the record does not rise to this level. Cf. Durben v. American Materials, 232 Ga. App. 750 (1) (503 SE2d 618) (1998) (summary judgment granted to defendants on punitive damage claim).

Judgment affirmed in part and reversed in part.

Barnes and Ellington, JJ, concur.

       The Department of Human Resources (DHR) is also a defendant in the underlying action; however, it did not file a motion for summary judgment and the trial court’s order specifically excluded it from the grant of summary judgment to the remaining defendants. DHR is not a party to this appeal.

       OCGA § 45-9-4.2 provides, in pertinent part, that the employees of nonprofit agencies which contract with the DHR to furnish services to the mentally retarded
      shall be provided protection against personal liability for damages sustained by third parties arising out of the provision of authorized services to the mentally retarded by an employee of such agency during the course of such person’s employment with such nonprofit agency. The commissioner of administrative services shall prescribe the terms and conditions under which such nonprofit agencies and their employees shall be covered by any liability insurance policy or contract of indemnity or similar program administered by the commissioner pursuant to this article to provide such protection.
      This Code section does not provide immunity but rather provides for the protection against personal liability for damages sustained by third parties. As no liability has been established, the application of this Code section is premature.


text:
    A98A1566.
    FELIX et al. v. THE STATE.
    (526 SE2d 637)
   McMurray, Presiding Judge.

Gladys Felix and Leonard Lee were jointly indicted for a single violation of the Georgia Controlled Substances Act, in that they allegedly did “unlawfully . . . possess and have under their control Cocaine. . . .” After a jury trial, each defendant was found guilty as charged. On appeal, their convictions were affirmed by this Court. Felix v. State, 234 Ga. App. 509 (507 SE2d 172). Specifically, this Court held the trial court did not err in refusing to suppress the cocaine seized after a search pursuant to a warrant, on the ground the warrant incorrectly describes the address of the premises to be searched. Id. at 511 (1). In so ruling, this Court declined to consider multiple additional reasons offered in support of their contention that the trial court erred in denying their motion to suppress. On cer-tiorari, the Supreme Court of Georgia vacated our judgment and remanded with direction that appellants’ remaining arguments be addressed. Felix v. State, 271 Ga. 534, 540 (523 SE2d 1). Held:

1. The judgment of the Supreme Court is made the judgment of the Court of Appeals. Inasmuch as the Supreme Court did not address the merits of any ruling in the prior appeal, we adhere to our ruling in Division 1 of the prior appeal, that the warrant is not defective due to the description of the premises to be searched. Similarly, Divisions 2, 3, and 4 are also adhered to.

2. Defendants contend the trial court erred in refusing to suppress the cocaine found in the apartment, in arm’s reach of where defendants were sleeping, arguing first that the warrant is not supported by probable cause. We disagree.

A search warrant will issue only upon facts “sufficient to show . probable cause that a crime is being committed or has been committed. . . .” OCGA § 17-5-21 (a). In determining whether probable cause to issue a search warrant exists, the magistrate’s task is

“simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” State v. Stephens, 252 Ga. 181, 182 (311 SE2d 823) (1984).

DeYoung v. State, 268 Ga. 780, 787 (7) (493 SE2d 157).

Lt. Robert Fawley, of the West Point Police Department, gave the following affidavit in support of the warrant application:

Within the past 24 hours I was contacted by a reliable source who stated that she had seen an amount of Crack Cocaine at the residence located 1301 Davidson Street Apartment #4, West Point, Georgia. On several occasions I have received information about Narcotics being sold from this residence.

We assume, without deciding, that, standing alone, this affidavit is insufficient to establish the basis for the informant’s knowledge or the reliability of any information received on several prior occasions from other unknown informants. See Langford v. State, 213 Ga. App. 232 (444 SE2d 153). But “probable cause may be established not only by the contents of the affidavit but also by sworn oral testimony given the magistrate. [Cits.]” Simmons v. State, 233 Ga. 429, 431 (211 SE2d 725).

At the hearing on defendants’ motion to suppress, Lt. Fawley testified he informed the issuing magistrate that the particular informant was reliable in that this source had given information “numerous times before that was proved to be true and correct, which led to subjects being arrested.” Within the 24 hours preceding the warrant application, this informant contacted Lt. Fawley about defendant Felix. The other informant, whose information had proven reliable in the past, told Lt. Fawley on the Friday before the application for the warrant that, “we [the police] need to go over to Davidson Street at the apartment right there and do something about Gladys because of the amount of drugs she’s selling.”

A prime element in the concept of probable cause is the time of the occurrence of the facts relied upon. Fowler v. State, 121 Ga. App. 22, 23 (172 SE2d 447). But the precise date of an occurrence is not essential. Rather, the inquiry is whether the factual statements in the affidavit are sufficient to create the reasonable belief that the conditions described might yet prevail at the time the search warrant is issued. So when the evidence before the magistrate indicates the existence of an ongoing scheme to sell drugs, the passage of time becomes less significant than would be the case in a single, isolated transaction. State v. Luck, 252 Ga. 347 (312 SE2d 791). Based on the totality of the circumstances, including the timely report from an informant of demonstrated reliability that cocaine was seen in an apartment out of which the police previously suspected drugs were being sold, the magistrate had probable cause to believe the circumstances described to him might yet prevail at the time the warrant was issued. Id. The trial court did not err in denying defendants’ motion to suppress on the ground the search warrant was issued without probable cause.

3. The warrant as prepared by Lt. Fawley is captioned as a Search Warrant in the Recorders Court of Troup County. The authority of the issuing officer, under the signature of John F. Meador, is that of: “Judge of the Recorders Court [,] City [of] West Point, Troup County, Georgia.” Defendants contend the warrant is invalid because there is no Recorders Court for Troup County and there no longer is a Recorders Court for the City of West Point. This contention is without merit. Although OCGA § 36-32-1 (a) provides that any such court as authorized thereunder “shall be styled as a municipal court,” that Code section further expressly provides that the change in name of any court previously known as a police court, recorders court, mayors court, etc., “shall not affect the validity of any action or prosecution in such court.” An incorrect caption on the search warrant, such as inserted here by Lt. Fawley, “fall[s] within the category of a ‘technical irregularity not affecting the substantial rights of the accused.’ Merritt v. State, 121 Ga. App. 832, 833 (2) (175 SE2d 890) (1970); Latimer v. State, 134 Ga. App. 372 (214 SE2d 390) (1975).” Birge v. State, 143 Ga. App. 632 (1) (a) (239 SE2d 395).

4. Defendants’ final contention is that the trial court erred in denying their motion to suppress because the police illegally executed the warrant by waiting an unreasonably short period of time before forcing their way into the apartment. We disagree.

This search warrant did not contain a so-called “No Knock” provision. Thomas Sims of the Lanett, Alabama, Police Department assisted the West Point police in executing the warrant. He observed as “Lieutenant Cummings knocked on the front door. No one answered the door. The door was unlocked. . . . We waited after we knocked for a few seconds[, approximately five to ten seconds]. No one came to the door. At that point in time we turned the knob and went into the residence.”

All necessary and reasonable force may be used to effect entry into any building or property ... to execute a search warrant if, after verbal notice or an attempt in good faith to give verbal notice by the officer ... of his authority and purpose [, he] is refused admittance [; or the] persons within the building . . . refuse to acknowledge and answer the verbal notice or the presence of the person or persons therein is unknown to the officer; or [the] building or property ... is not then occupied by any person.”

OCGA § 17-5-27. This Code section incorporates the common law requirement that officers executing a search warrant knock and announce their authority and purpose, unless peril to the officer is increased thereby or the law enforcement purpose would be frustrated by compliance. Scull v. State, 122 Ga. App. 696, 699 (1) (178 SE2d 720). See also Wilson v. Arkansas, 514 U. S. 927 (115 SC 1914, 131 LE2d 976) (common law knock-and-announce principle held part of reasonableness inquiry under Fourth Amendment’s guarantee against unreasonable searches and seizures). Although Lt. Fawley, the affiant, did not ask the magistrate for a “No Knock” provision, it is judicially recognized that firearms are tools of the drug trade. Hayes v. State, 202 Ga. App. 204, 205 (414 SE2d 321) (whole court). And in fact, a “loaded” Charter Arms 38 caliber revolver was recovered from a recliner by the left side of defendants’ bed. In this case, the five- to ten-second interval between Lt. Cummings’ knock and the nonviolent opening of the unlocked door (after no one inside responded) was not manifestly unreasonable. Jackson v. State, 129 Ga. App. 901, 905 (1) (e) (201 SE2d 816). Compare State v. Smith, 219 Ga. App. 905, 906 (467 SE2d 221), where this Court affirmed the grant of a motion to suppress because the evidence in that case supported the trial court’s “finding that, in executing the search warrant, [those] officers entered the residence occupied by Putnam without giving or attempting to give verbal notice to any occupant of their authority and purpose.” The trial court, in the case sub judice, did not err in denying defendants’ motion to suppress on the ground that the officers waited an unreasonably short time after their announcement before entering the residence.

Decided December 7, 1999.

Kirby & Roberts, James C. Thornton, Ellis C. Smith, for appellants.

Peter J. Skandalakis, District Attorney, Todd A. Orston, Assistant District Attorney, for appellee.

Judgment affirmed.

Blackburn, P. J., and Eldridge, J., concur.


author: Phipps, Judge.

text:
    A99A2305.
    HERRINGTON v. THE STATE.
    (527 SE2d 33)
   Phipps, Judge.

A jury found Terry Herrington guilty of two counts of aggravated child molestation. He appeals, claiming that (1) the trial court erred in admitting statements that should have been excluded under the Child Hearsay Statute, and (2) the evidence was insufficient to support either count of aggravated child molestation. We uphold the trial court’s determination that the statements at issue contained sufficient indicia of reliability and the jury’s verdict, which was supported by overwhelming evidence.

M. S. W. is the son of Ruth Herrington and David Wolfe. At the time of the incidents in question, M. S. W. was five years old, and his parents were divorced. M. S. W. lived with his father in Baxley, but his mother had visitation rights the first and third weekends of every month.

M. S. W. visited his mother on the first and third weekends of March 1998. She was living with her brother-in-law, Terry Her-rington, in Brunswick. When M. S. W. returned to Baxley from one of those weekend visits, he told Wolfe that “Terry did it again.” M. S. W. explained that Herrington had stuck his “weenie” in his “hiney.” According to Wolfe, M. S. W. told him what had happened within 30 minutes of his return to Baxley, while they were on the way to church.

The next day, March 23, 1998, Wolfe took M. S. W. to the Department of Family & Children Services (DFACS). Debra Jackson, a DFACS caseworker, and Scarlet Copeland, a counselor with the Appling County Board of Education, conducted an interview with M. S. W. During the interview, M. S. W. told them that Herrington had “put his weenie in my hiney.”

After the DFACS interview, Wolfe took his son to Dr. Pede LaFuente. Dr. LaFuente examined M. S. W. on March 23, 1998, and noticed a tear on M. S. W.’s anus that was probably two or three weeks old. He also noticed a slight looseness of M. S. W.’s sphincter, which he testified would be consistent with an item being inserted into his anus.

On March 30,1998, Kevin Jones, a detective with the Brunswick Police Department, conducted taped interviews with Ruth and Terry Herrington. Both interviews were played for the jury at trial. In her interview, Ruth Herrington said that during the third weekend of March 1998, “Terry put his privacy in [M. S. W.]’s asshole” three or four times. She said that Terry had done the same thing during M. S. W.’s two prior weekend visits. She further stated that M. S. W. was forced to perform oral sex on Herrington during the third weekend in February 1998.

In his police interview, Herrington admitted that he put his penis in M. S. W.’s “behind” during the third weekend of March 1998. Herrington also stated that M. S. W. put his mouth on his penis on Saturday night of that weekend. Herrington further admitted that he had tried, unsuccessfully, to put his penis in M. S. W.’s “behind” during the first weekend of March 1998.

At trial, M. S. W. testified that the last time he visited his mother, Terry Herrington “st[u]ck his weenie in my hiney.” M. S. W. also testified that his mother told him to put his mouth on Her-rington’s “weenie” and he did so. According to M. S. W., he told his father what Herrington had done when he returned to his house in Baxley.

Ruth Herrington testified at trial that Herrington did not molest M. S. W. and that she was lying when she gave her statement to the police. She also testified that she was having a blackout the day she was questioned and that she had asked for, but was not given, her Prozac.

Terry Herrington testified at trial that he had never molested M. S. W. He claimed that the taped interview was not accurate because it did not record his entire statement. Detective Jones, however, testified that no questioning occurred before the tape recorder was turned on.

1. The Child Hearsay Statute provides that
[a] statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another ... is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.

Prior to trial, the court conducted a hearing to determine if M. S. W.’s statements to his father and to Copeland about what Terry Herrington had done were sufficiently reliable to be admitted at trial. After viewing a videotaped statement taken from M. S. W, which was not shown to the jury, and hearing argument from counsel, the judge found sufficient indicia of reliability to admit both statements.

Herrington challenges the admission of both statements. He contends the trial court improperly found sufficient indicia of reliability because M. S. W. did not mention anything about oral sex with Her-rington in his pretrial statements, but did testify about it at trial. He also claims that M. S. W.’s testimony was inconsistent with Wolfe’s testimony because M. S. W. said he told Wolfe about the incident with Herrington when he was at his house in Baxley and Wolfe said the conversation took place on the way to church.

Indicia of reliability must come from the circumstances of the statement. The court may consider such factors as (1) the atmosphere and circumstances under which the statement was made; (2) the spontaneity of the child’s statement to the persons present; (3) the child’s age; (4) the child’s general demeanor; (5) the child’s physical or emotional condition; (6) the presence or absence of threats or promise of benefits; (7) the presence or absence of drugs or alcohol; (8) the child’s general credibility; (9) the presence or absence of any coaching by parents or other third parties before or at the time of the child’s statement; and (10) the consistency between repeated out-of-court statements by the child.

Here, considering the immediacy and spontaneity of the outcry to his father, the child’s age, the limited time between his return home and the initial outcry, thus demonstrating the absence of coaching, and the general consistency of his statements to several adults, we find that the record contains sufficient indicia of reliability to support the admission of the challenged statements. Because there were sufficient indicia of reliability, any alleged inconsistencies in the statements were a matter for the jury’s consideration in weighing the evidence, not a matter of admissibility.

Further, if defense counsel has the opportunity to cross-examine the witness making the out-of-court statements, those statements are admissible. Here, M. S. W. took the stand and was subjected to cross-examination by Herrington’s counsel. Therefore, the statements were properly admitted.

2. Herrington contends there was insufficient evidence to support his conviction for aggravated child molestation under Count 2 (putting his penis in M. S. W.’s anus) or Count 4 (putting his penis in M. S. W.’s mouth). He relies on alleged inconsistencies in M. S. W.’s testimony and Dr. LaFuente’s testimony that the injury to M. S. W.’s anus could have been caused by constipation.

On appeal, we do not weigh evidence or resolve conflicts in trial testimony when the sufficiency of the evidence is challenged. Instead, the evidence must be viewed in the light most favorable to the prosecution to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Viewed in the light most favorable to the prosecution, we conclude that the evidence was more than sufficient to support the conviction on each count beyond a reasonable doubt. Moreover, minor inconsistencies in the trial testimony go to the weight given the evidence, not to its sufficiency to support the jury’s verdict.

Decided December 7, 1999.

Patrick C. Kaufman, for appellant.

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

Judgment affirmed.

Johnson, C. J., and McMurray, P. J, concur.

       Herrington was also found guilty of two counts of aggravated sodomy, but the trial judge held that the aggravated sodomy counts merged with the aggravated child molestation counts.

       OCGA § 24-3-16.

        Gregg v. State, 201 Ga. App. 238, 240 (3) (b) (411 SE2d 65) (1991).

       Id.

       See Medina v. State, 234 Ga. App. 13, 14 (1) (a) (505 SE2d 558) (1998).

       Id.

       Id. at 15 (1) (b).

        Dismuke v. State, 261 Ga. 254 (1) (403 SE2d 812) (1991).

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

       See, e.g., Lindo v. State, 218 Ga. App. 756, 757 (1) (463 SE2d 148) (1995) (testimony of child, along with mother’s testimony that child reported assault immediately after crime, is sufficient to authorize finding of guilt beyond a reasonable doubt).

       See Heard v. State, 221 Ga. App. 166, 167 (1) (471 SE2d 22) (1996).


text:
    A99A2315.
    MORTON v. THE STATE.
    (526 SE2d 862)
   Blackburn, Presiding Judge.

Theorell Lemont Morton appeals, following a jury trial, from his convictions of two counts of armed robbery, one count of aggravated assault, one count of possession of a firearm during the commission of certain crimes, and one count of theft by receiving stolen property. Morton contends that there was insufficient evidence to support the verdict. We find that the evidence was sufficient, and we affirm.

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

(Punctuation omitted.) Barber v. State, 235 Ga. App. 170 (509 SE2d 93) (1998); see Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

The evidence at trial showed that on January 10, 1997, between 2:30 and 3:00 a.m., two men held up Huddle House on Washington Road in Augusta. Although both men wore masks, one man wore a blue fatigue jacket and the other wore a green and white Starter jacket. While the man in the green and white Starter jacket got the money, the man in the blue jacket held a gun on the employees and threatened to kill one of them. The gun’s handle was wrapped with tape. Immediately after the two men left, the employees called the police, who arrived forthwith.

Decided December 7, 1999.

Ellis R. Garnett, for appellant.

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

The police searched the parking lot of a neighboring apartment complex and found a stolen car with the doors open and the motor running. Because the car had been “straight dash wired,” the steering column on the car was broken open. Inside the car the police found a mask and the pistol that had been used in the robbery. Soon after, Morton and a co-defendant were stopped while they were walking up the ramp to Interstate 20. Both men were wearing clothes identical to the clothes worn by the perpetrators of the robbery, although the jackets had been turned inside-out. The co-defendant had a screwdriver that he tried to throw away when he was arrested. Morton had $124 in his sock and $30 in his jacket.

That night the waitress from Huddle House identified Morton as the man who had held a gun on her and demanded the money. She made the same identification at trial. A customer from Huddle House also identified Morton that evening and at trial.

Although Morton contends that the witnesses’ identification of him was insufficient because no one saw his face,

[identity is a question for the trior of fact, and where a witness identifies a defendant (whether the identification be based on the defendant’s eyes, clothes, hairline or some intangible factor not capable of description), the credibility of the witness making such identification is not to be decided by this court.

(Punctuation omitted.) Wimberly v. State, 233 Ga. 386, 387 (3) (211 SE2d 281) (1974). This evidence is sufficient to authorize the jury’s finding that Morton was guilty, beyond a reasonable doubt, of the offenses of which he was convicted. See Jackson, supra.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.


text:
    A00A0125.
    In the Interest of V. H. W. et al., children.
    (527 SE2d 30)
   McMurray, Presiding Judge.

On September 15, 1998, the Madison County Department of Family & Children Services (DFACS) petitioned to terminate the parental rights of M. W., natural mother, in the minor children, V. H. W. (V. W.) and S. D. R. W. (S. W.), alleging that, for the year preceding the petition, M. W. was unable to maintain regular employment to meet her own needs, failed to provide the necessary care or support for her children as required by law, and significantly failed to participate in the development of and to comply with court-ordered case plans designed to reunite her with her children. M. W. appeals from the orders of the Madison County Juvenile Court, terminating her parental rights. In four related enumerations of error, M. W. challenges the sufficiency of the evidence. Viewed in the light most favorable to the juvenile court’s disposition, the evidence authorized the following facts:

M. W. was bom July 27, 1975, and was 23 years of age at the time of the hearing. M. W. was reared by her maternal grandmother, who was granted custody when M. W. was very young. Never married, M. W. had, at the time of the hearing, recently given birth to her fourth child out of wedlock. The first child, S. W., was born March 17, 1994, the second, A. W., was born August 29, 1995, and the third child, V. W., was born March 5, 1997. Each child has a different father. In April 1993, when M. W. was not yet 18, her grandfather died, leaving her a substantial inheritance in the form of a business that provided M. W. with an income of $700 to $800 per week. M. W. found out she was pregnant with S. W. in June and turned 18 in July. By her own admission, M. W. spent her inheritance “drinking, partying, running wild and living wrong.” Consequently, M. W. did not care for her children like she should. In May 1997, DFACS intervened due to concerns that S. W., A. W., and three-month-old V. W. were deprived. The infant “seemed underweight and was losing some weight.” V. W. was born with a cleft lip and needed to be held while she was fed, but Donna Gordon, the DFACS case manager, observed that the infant would be left alone “on a couch with a bottle propped up.” A. W. was placed with a relative while temporary custody of S. W. and V. W. was placed with DFACS. S. W. and V. W. have been in the custody of DFACS “continuously since that time.” When M. W. first lost custody of her children, she began to drink heavily, as much as one case of beer in a single day. Because M. W. had a place to live and reliable income, initial case plans envisioned reuniting M. W. with S. W. and V. W., if M. W. would complete a drug and alcohol assessment, undergo random dmg tests, attend parenting classes, and undergo psychological evaluation. By September 1997, M. W. had not completed any of her case plan but indicated her willingness to cooperate, and so a third case plan was completed in December 1997. But by then, M. W. did not have her own residence and no longer had any income. Under these case plans, M. W. never obtained a psychological evaluation, never got a drug and alcohol assessment, never paid consistent child support, and, in fact, never paid any child support at all. In June 1998, after S. W. and V. W. had been in foster care for a year, the focus of the case plan changed from reunification of the children with M. W. to permanency for the children, involving termination of parental rights and adoption or placement with a suitable family member. When it appeared that S. W. could be placed with paternal relatives, M. W. still failed to take any action to comply with the June 1998 case plan. Only in September 1998, when this placement option was no longer available, and M. W. realized DFACS was serious about termination, did M. W. start completing any part of her case plan. Now pregnant with her fourth child, M. W. went to live with the Posses, the parents of Matthew Poss, the child’s father. She intends to marry the father but had not done so as of the hearing in February 1999. Matthew Poss pleaded guilty to one count of family violence battery committed on April 15, 1998, against M. W.’s second child, A. W. M. W. first claimed she had not consumed alcohol since May 1998, when she returned to Matthew Poss. But in June, when M. W. left Matthew Poss again, to stay for a week or more at Linda Parham’s house, she admitted she would drink but not use drugs. She further distinguished drinking two beers and abusing alcohol. By December 1998, M. W. had completed her psychological evaluation, as well as the drug and alcohol assessment, and had begun parenting classes. Nevertheless, she remained completely dependent upon Matthew Poss financially and had no realistic plans of supporting herself.

It is undisputed that M. W. consistently visited her children, but V. W. “appears more attached to the grandparents than to [M. W.]” Y. W. separates easily from M. W. after visitation and responds to the foster parent as a mother. The two foster families hosting S. W. and V. W., respectively, are identified as adoptive families. Held:

1. Termination of parental rights based on parental misconduct and inability maybe authorized by the juvenile court’s determination that the child is deprived due to lack of proper parental care or control, subsistence, or education as required by law or as necessary for the child’s physical, mental, or emotional health or morals (OCGA § 15-11-2 (8)); that such deprivation is likely to continue; and that continued deprivation will cause serious physical, mental, emotional, and moral harm to the child. OCGA § 15-11-81 (b) (4) (A) (i)-(iv). This deprivation must be established by clear and convincing evidence. OCGA § 15-11-33 (b) (1). In addition, where the child is not in the custody of the parent whose rights are in issue, the juvenile court shall consider whether lack of proper parental care and control is demonstrated by proof that, for a period of one year or longer prior to the filing of the petition to terminate parental rights, the parent, without justifiable cause, failed significantly to provide for the care and support of the child as required by law or judicial decree and failed significantly to comply with a court-ordered plan designed to reunite the child with the parent. OCGA § 15-11-81 (b) (4) (C) (ii), (iii); In the Interest of K. S. W., 233 Ga. App. 144, 148 (1) (503 SE2d 376). “ This Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the [juvenile] court’s fact-finding and affirm unless the appellate standard is not met. (Cit.)’ In the Interest of R. N., 224 Ga. App. 202 (480 SE2d 243).” In the Interest of S. S., 232 Ga. App. 287, 289 (501 SE2d 618).

Decided December 7, 1999

Ninfo & Ledbetter, Mario S. Ninfo, Milford & Milford, Richard K. Milford, for appellant.

It is undisputed that, during the year preceding the filing of these termination petitions, M. W. wholly failed to support her children while they were in the custody of DFACS and wholly failed to motivate herself to comply with court-approved case plans for reunification. This is clear and convincing evidence that the children S. W. and V. W. were deprived due to M. W.’s parental misconduct or inability. In the Interest of J. M. B., 231 Ga. App. 875, 878 (1) (b) (501 SE2d 259). Such deprivation is likely to continue or likely will not be remedied, in that M. W. had no realistic plans to support herself, much less her children. The record authorizes the conclusion that, based upon her past, M. W. places herself and her own unrestrained desires above those of her children. Id. at 878 (1) (c). Although M. W. claims she has changed dramatically since the filing of the termination petitions, the decisions about each child’s future must rest upon more than positive promises which are contradicted by negative past facts. In the Interest of J. L. Y, 184 Ga. App. 254, 257 (2) (361 SE2d 246). The continued deprivation will cause serious physical, mental, emotional, or moral harm to the children, as they have special medical, educational, and emotional needs and are thriving in foster care.

2. The same factors indicating deprivation due to M. W.’s parental unfitness or inability also support the juvenile court’s judgment that termination of M. W.’s parental rights was in the best interest of each child. In the Interest of C. W. S., 231 Ga. App. 444, 448 (4) (498 SE2d 813).

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Thomas A. Camp, for appellee.


text:
    A00A0307.
    LOWE v. THE STATE.
    (526 SE2d 634)
   McMurray, Presiding Judge.

Defendant Anthony Bernard Lowe was tried before a jury and found guilty of burglary and obstruction of a law enforcement officer. On appeal, Lowe’s sole enumeration of error complains of the denial of his motion for new trial on the. special ground of ineffective assistance of counsel. Specifically, Lowe argues trial counsel was ineffective for not submitting written requests to charge on “mere presence” at the scene of a crime and on impeachment of a witness. He also urges that counsel was ineffective by failing to adequately advise defendant of the consequences of being sentenced as a recidivist, and so defendant declined a plea bargain ill-advisedly. Held:

1. Generally,
the burden is on the defendant to establish (1) his attorney’s representation in specified instances fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.

(Citation and punctuation omitted.) Ivory v. State, 234 Ga. App. 858, 861 (4) (508 SE2d 421). Based on the uncontradicted direct evidence of defendant Lowe’s knowing and active involvement in the burglary, the failure to request a charge on defendant’s mere presence at the scene does not cast doubt on the verdict.

(a) The Suggested Pattern Jury Instructions (2nd ed. 1991), Vol. II: Crim. Cases, Part 3 (C) reads:

The mere presence of a person at the scene of the commission of a crime at the time of its perpetration, without more, will not authorize a jury to find the person who was merely present guilty of consent in, and concurrence in, the commission of the crime, unless the evidence shows, beyond a reasonable doubt, that such person committed the alleged crime, helped in the actual perpetration of the crime, or participated in the criminal endeavor.

The presumption of innocence, codified at OCGA § 16-1-5, is in the nature of evidence. Dennard v. State, 216 Ga. App. 446, 447 (1) (454 SE2d 629). See also Foster v. State, 240 Ga. 858, 860 (4) (242 SE2d 600). In our view, this evidentiary presumption is sufficient to support a proper written request for a jury instruction on mere presence at the scene. For purposes of this appeal, we assume, but do not hold, that trial counsel’s failure to submit a timely, written request for a charge on “mere presence” fell below the professional standard of skill and judgment to which all members of the bar in good standing are presumed to adhere.

(b) An error by counsel, even if professionally unreasonable, does not warrant reversal of a criminal conviction if it had no effect on the judgment. Michael v. State, 235 Ga. App. 16, 19 (7) (508 SE2d 426). In this case, the presumption of defendant Lowe’s innocence for being merely present at the scene was overcome by the uncontradicted direct evidence of defendant’s co-indictee, Ron Boyd, who testified that the burglary was defendant’s plan and that it was defendant who threw a brick through the front window, entered the store and returned to the car with three or four cash drawers. A police officer drove by and began turning around as defendant came back out of the package store. Officer C. A. Williams of the DeKalb County Police responded to the alarm of glass breakage at the store. When Officer Williams arrived, he observed two males inside a vehicle in the parking lot. That vehicle drove off upon Officer Williams’ arrival, and he followed until the driver lost control. As the occupants fled, Officer Williams followed the passenger, namely defendant Lowe, and arrested him. Photographs depict money strewn on the passenger side floorboard.

Although the trial court did not (spontaneously) instruct the jury on “mere presence,” it did charge them that the indictment is not evidence of guilt; that the presumption of innocence remains with defendant throughout the trial unless and until overcome by evidence; that the State has the unalterable burden to establish guilt beyond a reasonable doubt; on the credibility of the witnesses and conflicts in the evidence; on the quality of circumstantial evidence to convict; and on parties to a crime. Based on these instructions and the uncontradicted evidence, the trial court was authorized to conclude that defendant failed to establish he was prejudiced by counsel’s failure to submit a written request for an instruction on “mere presence,” in that there is no reasonable probability that, but for this omission, the outcome of the trial would have been different. Lajara v. State, 263 Ga. 438, 441 (3) (435 SE2d 600). See also McCord v. State, 268 Ga. 842, 845 (8) (493 SE2d 129).

2. The second specification of alleged unprofessional error is trial counsel's failure to submit a written request to charge on impeachment, based upon the perception that co-indictee Boyd contradicted himself on whether his own negotiated sentence was conditioned on Boyd’s testifying against defendant Lowe. Although defendant’s brief recites two full pages from the transcript to support this factual assertion, no effort is made to address the second prong of the necessary showing in an ineffective assistance claim, namely prejudice resulting from the allegedly unprofessional omission. The trial court gave extensive instructions on the credibility of the witnesses. The jury was further admonished that no adverse inference may be drawn from the fact that defendant Lowe did not testify in his own behalf. The record supports the conclusion there is no reasonable likelihood the outcome would have been different had the trial court charged on impeachment as desired. Concepcion v. State, 205 Ga. App. 138, 139 (421 SE2d 554).

3. Defendant declined the State’s pretrial offer of a plea agreement, to serve ten years. In support of his contention that he was inadequately advised of the consequences of being sentenced as a recidivist, defendant acknowledged he understood that recidivist punishment meant he would serve all of his sentence, but thought ten years was the maximum sentence. But trial counsel, who has tried over 400 felony cases in 24 years of practice, testified that, during the pretrial hearing, defendant was informed the maximum sentence that could be imposed for burglary was 20 years.

Under both the Sixth Amendment to the U. S. Constitution and Art. I, Sec. I, Par. XIV, of the 1983 Georgia Constitution, an accused is entitled to competent counsel who performs to the standards expected in the legal profession when deciding whether to accept a plea bargain. Lloyd v. State, 258 Ga. 645, 646 (2) (373 SE2d 1). In this case, the conflicting evidence authorizes the finding that trial counsel did perform to those standards when communicating the State’s offer for a plea bargain, because Lowe was informed of the possible 20-year maximum sentence before he rejected the State’s offer. The trial court did not err in denying defendant’s motion for new trial on the special ground of ineffective assistance based on that rejected plea bargain. Cook v. State, 255 Ga. 565, 581 (17) (f) (340 SE2d 843). See also Whitehead v. State, 211 Ga. App. 121, 123 (438 SE2d 128).

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur.

Decided December 7, 1999.

Harold S. Gulliver, for appellant.

J. Tom Morgan, District Attorney, Maria Murder-Ashley, Jeanne M. Canavan, Assistant District Attorneys, for appellee.

       We express no opinion whether the trial court abused its discretion in refusing defendant’s oral request to charge on mere presence; in response to a question by the jury during their deliberations, as no enumeration of error is predicated thereon.


author: Andrews, Presiding Judge.

text:
    A99A0790.
    ALFRED v. THE RIGHT STUFF FOOD STORES, INC.
    (525 SE2d 717)
   Andrews, Presiding Judge.

Michael Alfred, shot by an assailant outside The Right Stuff Food Stores, Inc. (Right Stuff) convenience store, appeals from the trial court’s grant of summary judgment to the defendant on his premises liability claim and his nuisance claim. Alfred was using a pay phone outside the store when the assailant attempted to caijack him. Alfred attempted to escape and was shot by the assailant.

This Court reviews de novo a trial court’s grant of summary judgment. Jackson v. Post Properties, 236 Ga. App. 701 (513 SE2d 259) (1999).

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. . . . [T]he burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

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

1. Alfred contended that, due to numerous other crimes committed on the store’s premises or in the surrounding neighborhood, Right Stuff had the requisite knowledge under Doe v. Prudential-Bache/A.G. Spanos Realty &c., 268 Ga. 604 (492 SE2d 865) (1997) and Sturbridge Partners, Ltd. v. Walker, 267 Ga. 785 (482 SE2d 339) (1997).

The burden is on the party alleging error to show it affirmatively by the record, and where the proof necessary to determine the issues on appeal is not contained in the record, this Court must assume the judgment below was correct. Tahamtan v. Sawnee Elec. Membership Corp., 228 Ga. App. 485 (491 SE2d 918) (1997).

The only item in the record before us relating to these incidents is a chart, prepared by Alfred’s attorney, summarizing police reports of these incidents and the admission by Right Stuff that “on or before June 13, 1993 [, the date of Alfred’s shooting], three armed robberies occurred against employees of the store in question but none of said incidents occurred outside of the store or against store patrons.” By order of February 23, 1998, the trial court analyzed each incident included in the chart, found each inadmissible under the Sturbridge standard, and granted Right Stuff’s motion in limine concerning them.

In addition to the court’s conclusion regarding lack of similarity, there is another reason for concluding that Alfred did not meet his burden under Lau’s Corp. On summary judgment, “ ‘[supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in the evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.’ [Cits.]” Pass v. Bouwsma, 239 Ga. App. 902, 903 (522 SE2d 484) (1999).

Here, not only were no affidavits filed, but the chart is at best hearsay, OCGA § 24-3-1, probative of nothing. Clauss v. Plantation Equity Group, 236 Ga. App. 522, 524 (1) (b) (512 SE2d 10) (1999); Southern Co. v. Hamburg, 220 Ga. App. 834, 842 (5) (470 SE2d 467) (1996). The admission lacks any specifics and does not provide facts necessary to create a triable issue.

There being no admissible evidence in the record of these other incidents, Alfred has failed to come forth with specific evidence giving rise to a triable issue. A grant of summary judgment will be affirmed if it is right for any reason. Phinazee v. Interstate Nation-alease, 237 Ga. App. 39, 40 (514 SE2d 843) (1999).

2. In his second enumeration, Alfred claims error in the trial court’s conclusion that his added claim for nuisance was barred by the statute of limitation and that the 40 other crimes were not admissible regarding the nuisance claim.

The original complaint was filed in 1993, alleging only negligence in keeping the premises safe. That action was dismissed without prejudice and refiled pursuant to OCGA § 9-2-61 on March 13, 1996, alleging the same claims as in the original complaint. On October 9,1996, Alfred amended his complaint to add a claim of nuisance, which the defendant contended was barred by OCGA § 9-3-3, the two-year statute of limitation.

Decided November 18, 1999

Reconsideration denied December 8, 1999

Bauer & Deitch, Gilbert H. Deitch, George H. Connell, Jr., for appellant.

Fain, Major, Wiley & Brennan, Charles A. Wiley, Jr., Brian H. Alligood, for appellee.

We agree with the trial court that such a claim is barred by the statute of limitation because it is a different claim from that included in the renewed suit. See Collins v. Byrd, 204 Ga. App. 893, 895 (2) (420 SE2d 785) (1992); Heyde v. Xtraman, Inc., 199 Ga. App. 303, 304 (1) (404 SE2d 607) (1991); Wagner v. Casey, 169 Ga. App. 500, 501 (2) (313 SE2d 756) (1984); Speer, Inc. v. Manis, 164 Ga. App. 460, 461 (297 SE2d 374) (1982).

Judgment affirmed.

McMurray, P. J., and Ruffin, J., concur.

       Although a certificate of immediate review was granted by the trial court, interlocutory review was denied by this Court.