text:
    A99A1738.
    JOHN HEWELL TRUCKING COMPANY, INC. v. BROCK.
    (522 SE2d 270)
   McMurray, Presiding Judge.

Plaintiff-appellant John Hewell Trucking Company, Inc. (“Hewell Trucking”) brought this action to recover for property damage sustained when one of its trucks collided with a cow owned by defendant-appellee Johnny Brock on a public road in Hall County. Brock’s cow evidently strayed from a fenced and gated pasture which comprised a part of Brock’s 400-acre farm. Hewell Trucking appeals from the trial court’s grant of Brock’s motion for summary judgment. Held:

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. ... A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the non-moving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).

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

Viewed in the light most favorable to Hewell Trucking, the evidence reveals that Chris Phagan, who rented a truck from Hewell Trucking to haul feed, was driving the vehicle west on Joe Chandler Road at approximately 5:00 a.m., on April 24, 1997, when he collided with a cow which had strayed into the roadway, killing the animal and significantly damaging the truck. During pretrial discovery, Brock deposed that he did not know how the cow had gotten out of his pasture; that he had inspected the fencing around the pasture immediately after the accident and found no holes or fallen portions in the fence; that he checked his fences and cattle for problems daily by driving around his property; and that all his livestock had plenty of feed and water. Questioned as to other incidents involving stray cattle belonging to him, Brock deposed that other cows had gotten out since the time of the instant incident and indicated that “[o]ne might have jumped [a cattle crossing].” He further deposed that “10, 15 years ago,” his insurance company paid a claim against him on a cow. Brock’s testimony indicated, however, that the cow had been maintained on rented land. Otherwise, Brock deposed no other cow belonging to him had been killed in a roadway in the ten years previous. Finally, asked if “[a]ny changes [had] been made to the fencing since April 1997,” Brock deposed he planned to erect hog wire fencing “around my whole farm, when I get time, just as I do.”

Plaintiff’s president, John Hewell, in turn, deposed that while he was aware of other instances in which cows had been in Joe Chandler Road “we can’t swear they’re Mr. Brock’s cows because we don’t know. We know of cows that [had] been hit and killed in that general area on that road.” Hewell further deposed that neither he nor anyone on his behalf had inspected Brock’s fences after the incident; that he did not know how the cow had gotten out; and that he knew of no one who did know how the cow got out in the road.

“ ‘The mere fact that livestock is running at large permits an inference that the owner is negligent in permitting the livestock to stray; but when the owner introduces evidence that he has exercised ordinary care in the maintenance of the stock, that permissible inference disappears.’ (Cits.) For the evidence to require a verdict for the defendant it must demand a finding that he was not negligent in any respect. A jury question reappears in the case where, although evidence of facts showing ordinary care on his part have been introduced, other facts would support a contrary inference.” Wilkins v. Beverly, 124 Ga. App. 842 (186 SE2d 436) (1971).

Decided September 8, 1999.

Maddox, Cummings & Kelly, William A. Maddox, for appellant.

Carver v. Kinnett, 209 Ga. App. 577 (1), 579 (434 SE2d 136).

Hewell Trucking correctly argues that Brock’s testimony as to the “soundness and proper construction of the fence” is in the nature of opinion testimony. Nevertheless, Brock’s deposition testimony also indicated that he found no holes or breaches in the fencing surrounding the deceased cow’s pasture upon inspecting it immediately after the accident and that there was feed and water. This testimony constituted direct, competent evidence showing the exercise of ordinary, reasonable care. In this regard, Hewell Trucking offered no other evidence of negligence by Brock to the contrary. While Hewell Trucking adduced deposition testimony showing that other cattle belonging to Brock had strayed beyond their pastures, no nexus was established in terms of time and location to Brock’s maintenance of the fencing here in issue. Neither does the fact that Brock planned to install new fencing establish that the existing fencing was negligently maintained. Brock testified only that he planned this fencing around his entire property on a timetable convenient to him. To infer evidence of negligence by Brock on this basis would constitute only impermissible speculation. “Guesses or speculation which raise merely a conjecture or possibility are not sufficient to create even an inference of fact for consideration on summary judgment. [Cits.]” Brown v. Amerson, 220 Ga. App. 318, 320 (469 SE2d 723) (1996). Although Brock’s cow strayed out onto Joe Chandler Road, there is no other evidence of negligence in the record before us to rebut the proof that defendant exercised ordinary care.

On this evidentary posture, we conclude, as a matter of law applied to undisputed fact, the trial court correctly granted Brock’s motion for summary judgment. Lau’s Corp. v. Haskins, 261 Ga. 491, supra. Compare Green v. Heard Milling Co., 119 Ga. App. 116 (1) (166 SE2d 408) (conflicting testimony of a hole in pasture fence, coupled with testimony that a back gate was open, was sufficient evidence contradicting that defendant’s testimony of his own care in maintaining pasture fence, such that denial of a directed verdict was not error).

Judgment affirmed.

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

Carey, Jarrará & Walker, Christopher J Walker III, Theodore W. Robinson, for appellee.

       This is not unlike that allowed plaintiffs upon the evidentiary maxim of res ipsa loquitur. See Tuggle v. Helms, 231 Ga. App. 899, 904 (499 SE2d 365) (McMurray, P. J., dissenting).


source: Caselaw Access Project

author: Blackburn, Presiding Judge.

license: Public Domain

text:
    A99A1741.
    In THE INTEREST OF A. Q. H., a child.
    (522 SE2d 264)
   Blackburn, Presiding Judge.

A. Q. H. appeals the trial court’s order imposing restrictive custody based upon a finding of delinquency for acts, which if committed by an adult, would constitute robbery and aggravated assault. A. Q. H. contends he is entitled to a new trial because the trial court failed to make the written findings required by OCGA § 15-11-37 (c) for the imposition of restrictive custody.

OCGA § 15-11-37 provides, in pertinent part:

(b) Where a juvenile is found to have committed a designated felony act, the order of disposition . . . shall include a finding based on a preponderance of the evidence as to whether, for the purposes of this Code section, the juvenile does or does not require restrictive custody ... in connection with which the court shall make specific written findings of fact as to each of the elements set forth in paragraphs (1) through (5) of subsection (c ) of this Code section as related to the particular juvenile. . . . (c) In determining whether restrictive custody is required, the court shall consider: (1) The needs and best interests of the juvenile; (2) The record and background of the juvenile; (3) The nature and circumstances of the offense, including whether any injury involved was inflicted by the juvenile or another participant; (4) The need for protection of the community; and (5) The age and physical condition of the victim.

The trial court must make specific written findings of fact, as related to A. Q. H., regarding the elements listed in OCGA § 15-11-37 (c).

The extent and depth of analysis to which each of these “elements” must be subjected [are] in large measure within the sound discretion of the court. It is required, as a statutory minimum, that each of these “elements” must be specifically addressed in writing. These findings not only provide a meaningful legal road map for the lower court in exercising discretion in effecting a fundamentally fair case disposition, but also “assist the appellate court in its review of the merits of an appeal.” “The findings should be sufficiently inclusive to afford the means for an intelligent review.”

(Citations and punctuation omitted.) In the Interest of C. T., 197 Ga. App. 300, 303 (3) (398 SE2d 286) (1990).

In the present case, the trial court found in its written order that A. Q. H. had committed the acts charged against him. The trial court specifically found with regard to the nature and circumstances of the offense, OCGA § 15-11-37 (c) (3), that:

On the evening of August 17, 1998, [A. Q. H.] and three other young males walked up behind a man on his way home from work. They hit him with a rock and demanded that he give them all his money. Two of them, including [A. Q. H.], carried pieces of 2 x 4 lumber. The man convinced them he had no money. They then demanded that he put down the package he was carrying which contained two cans of beer. He did so, then left and immediately called the police. The perpetrators were located nearby and identified by the victim within minutes of the incident.

With regard to OCGA § 15-11-37 (c) (1), the best interests of the juvenile, the trial court found:

“[A. Q. H.] needs, and it is in his best interest, to receive a serious consequence for his violent behavior. His past record indicates that he has not learned to respect the rights of other members of the community and still believes he can just take what he wants. He must learn before reaching adulthood that such behavior is unacceptable. If a serious consequence is not imposed at this time, [A. Q. H.] would likely re-offend and face lengthy prison time in the adult system.

With regard to OCGA § 15-11-37 (c) (2), the record and background of the juvenile, the trial court found:

[A. Q. H.] was first charged with an offense when he was ten years old. His charges of Theft by Taking and Criminal Trespass were held in abeyance for three months and then dismissed because he had no further charges. In June of 1996, [A. Q. H.] again committed Theft by Shoplifting. He was ordered to serve one weekend in YDC and was placed on probation for 12 months. [A. Q. H.] lives with his mother in Marietta, Georgia. His mother indicated to the court that she planned to return to New Jersey before the end of the year.

Decided September 8, 1999.

Robert S. Devins, for appellant.

Patrick H. Head, District Attorney, John R. Edwards, Assistant District Attorney, for appellee.

With regard to OCGA § 15-11-37 (c) (4), the need for protection of the community, the trial court found: “Because [A. Q. H.] incorporated threats of violence in this latest offense, it is apparent that he must be kept out of the community for a period of time. Hopefully, he will mature and develop more acceptable methods of dealing with people while he is incarcerated.”

With regard to OCGA § 15-11-37 (c) (5), the age and physical condition of the victim, the trial court found: “The victim is a young adult male. He was bruised by the rock that was thrown at him, but sustained no lasting injury. He does live in the same community as the juveniles, and should be notified if they are returned to that community.”

Based upon the foregoing, it is clear that the trial court not only considered the required elements, but also made factual findings with regard to each of them. Our review of the record indicates that the trial court’s findings are supported by the evidence. Therefore, the trial court did not abuse its discretion in determining that A. Q. H. should be placed in restrictive custody pursuant to OCGA § 15-11-37.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.


text:
    A99A1762.
    THE STATE v. TERRY.
    (522 SE2d 275)
   Blackburn, Presiding Judge.

The State appeals the grant of Cliff Alan Terry’s motion to suppress the results of an Intoxilyzer test, contending that the trial court improperly found that Terry’s vehicle was stopped by Officer Nancy McMann without articulable suspicion or probable cause. For the reasons set forth below, we reverse.

“Because the evidence regarding the stop of [Terry] was undisputed, the trial court’s application of the law to these facts is subject to de novo appellate review. Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).” Welborn v. State, 232 Ga. App. 837, 838 (2) (503 SE2d 85) (1998).

The record shows that Officer Nancy McMann was on patrol in the early morning hours of March 8, 1998. Just outside a bar in Gwinnett County, McMann was flagged down by an unidentified man. This man told the officer that he witnessed a very intoxicated man preparing to drive a red and cream Ford Bronco out of the bar parking lot. Although the anonymous informant indicated that he did not know Terry, he stated that he had seen him drinking inside the bar.

Officer McMann pulled into the bar parking lot just as Terry was leaving it. Officer McMann followed Terry and pulled him over after she witnessed the Bronco improperly straddling two adjacent turn lanes. As Officer McMann approached Terry, she noticed that Terry’s eyes were glazed and bloodshot and that he had the moderate odor of an alcoholic beverage about him. Although he initially stated that he had not been drinking, Terry later admitted that he had done so. Terry then failed a horizontal gaze nystagmus test performed by the officer and tested positive for alcohol on an alco-sensor test. At that time, Officer McMann arrested Terry, cited him for failure to maintain lane and driving under the influence of alcohol, and escorted him to the police station where a breathalyzer test showed Terry’s blood-alcohol level to be .095.

Although an officer may conduct a brief investigative stop of a vehicle (see Delaware v. Prouse, 440 U. S. 648 (99 SC 1391, 59 LE2d 660) (1979)), such a stop must be justified by “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio, 392 U. S. 1, 21 (88 SC 1868, 20 LE2d 889) (1968). See also United States v. Brignoni-Ponce, 422 U. S. 873 (95 SC 2574, 45 LE2d 607) (1975). The U. S. Supreme Court recognized the difficulty in defining “the elusive concept of what cause is sufficient to authorize police to stop a person,” and concluded that the essence of the elusive concept was to take the totality of the circumstances into account and determine whether the detaining officer has a “particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 449 U. S. 411, 417-418 (101 SC 690, 66 LE2d 621) (1981).

Vansant v. State, supra at 320 (2).

Citing Vansant, Terry argues that his stop was pretextual and that Officer McMann had no particularized and objective basis for suspecting him because the description provided by the anonymous informant was not sufficiently specific.

Decided September 8, 1999.

Gerald N. Blaney, Jr., Solicitor, Tracy S. Drake, Jeffrey P. Kwiatkowski, Assistant Solicitors, for appellant.

Chandler & Britt, Walter M. Britt, Deborah F. Weiss, for appellee.

The United States Supreme Court has held, however, that when an officer sees a traffic offense occur, a resulting traffic stop does not violate the Fourth Amendment even if the officer had ulterior motives in initiating the stop, and even if a reasonable officer would not have made the stop under the same circumstances. See Whren v. United States, 517 U. S. [806] (116 SC 1769, 135 LE2d 89) (1996).

Brantley v. State, 226 Ga. App. 872, 873 (1) (487 SE2d 412) (1997).

The evidence of record shows that Terry improperly straddled two turn lanes after exiting the bar parking lot, and Officer McMann testified that she stopped Terry for this reason. Under these circumstances, the stop was proper, and Terry’s motion to suppress the results of his breath test should have been denied.

Judgment reversed.

Eldridge and Barnes, JJ, concur.


author: McMurray, Presiding Judge.

text:
    A99A2044.
    HILL v. DOE.
    (522 SE2d 471)
   McMurray, Presiding Judge.

In this renewal action for uninsured motorist benefits, Progressive Northwestern Insurance Company answered and the case was placed on the March 15, 1999 civil jury calendar. At the call of that calendar, plaintiff Robert Hill did not appear. Plaintiff’s counsel was ordered to appear the next day, with his client, ready to try the case. On the morning of March 16, 1999, defendant appeared, ready to try the case and the superior court had 32 jurors ready. After 9:00 a.m., plaintiff’s counsel announced he would dismiss the case. For this perceived abuse of the litigation process, the superior court imposed sanctions jointly against plaintiff and his counsel, awarding $500 to defendant Progressive Northwestern Insurance Company, and farther awarding $480 to the Superior Court of DeKalb County, representing the cost of 32 jurors. Plaintiff’s application for discretionary appeal was granted, and a timely notice of appeal was filed. Held:

1. This discretionary appeal was granted ostensibly under OCGA § 5-6-35 (j). This was improvident.

The order imposing a [$980] sanction for [unnecessarily expanding the proceeding] is in the nature of an award for frivolous litigation within the purview of OCGA § 9-15-14 (b). Such an award is not directly appealable but requires an application to this court pursuant to the discretionary appeal procedures. OCGA § 5-6-35 (a) (6).

Decided September 8, 1999.

Rajan Bhandari, for appellant.

Shur, McDuffie, Brockman & Leveille, Brett F. Shur, for appellee.

Bonnell v. Amtex, Inc., 217 Ga. App. 378 (457 SE2d 590).

2. We treat the instant sanction as a sua sponte award as authorized by OCGA § 9-15-14 (b). Hardwick-Morrison Co. v. Mayland, 206 Ga. App. 426, 427 (425 SE2d 416). “OCGA § 9-15-14 (b) is discretionary and the standard of review is abuse of discretion.” Haggard v. Bd. of Regents &c. of Ga., 257 Ga. 524, 527 (4) (c) (360 SE2d 566). The undisputed facts as explained in the court’s order authorized the superior court’s imposition of nominal sanctions in an amount closely tied to the direct expenses incurred by DeKalb County and defendant due to plaintiff’s cavalier treatment of the public and the opposing party after what amounted to a special setting of this renewal action. The superior court did not manifestly abuse its discretion, and so the sanctions imposed under OCGA § 9-15-14 (b) are affirmed. Mitcham v. Blalock, 268 Ga. 644, 647 (5) (491 SE2d 782); Sommers v. State Compensation Ins. Fund, 229 Ga. App. 352, 354 (3) (494 SE2d 82); see also Howard v. Sharpe, 266 Ga. 771 (470 SE2d 678).

Judgment affirmed.

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


author: Phipps, Judge.

text:
    A99A0833.
    SCOTT et al. v. CARTER et al.
    (521 SE2d 835)
   Phipps, Judge.

Appellants-plaintiffs, Marquisse D. Scott and Stacey D. Scott, appeal the trial court’s order enforcing a settlement agreement between the Scotts and appellees-defendants, Christopher M. Carter and Georgia Blacktop Paving, Inc. The Scotts contend that the trial court erred because fact issues remain regarding the existence of the settlement agreement and their consent to the settlement.

The record reflects that the attorneys of record for the Scotts in the trial court included Andrea R. Bennett, D. Keith Calhoun and John Sowa. It is undisputed that the parties agreed to mediate this personal injury action, which arose from a collision between a vehicle driven by Marquisse Scott and a truck owned by Georgia Blacktop Paving, Inc. and operated by its employee, Carter. Mr. Scott, his attorney (Calhoun), counsel for appellees (Neal C. Scott) and the mediator (Lloyd W. Hoffspiegel) were all present at the mediation. The parties agree that a $60,000 offer was made to settle the case during the mediation on December 15, 1997, but disagree about whether the offer was accepted at that time.

Calhoun submitted an affidavit in connection with the motion to enforce the settlement that supports appellees’ contention that the offer was accepted at the mediation. According to Calhoun, the following transpired:

After several hours of mediation, Marquisse Scott finally authorized a settlement demand of $60,000.1 communicated this demand, made with Marquisse Scott’s express approval, to Mr. Hoffspiegel in my client’s presence. Mr. Hoffspiegel then left the room and returned a few minutes later after caucusing with Defendants’ counsel and informed Mar-quisse Scott and me that the Defendants had agreed to settle the case for that amount, $60,000. Defendants’ counsel then entered the room, and I witnessed Marquisse Scott directly confirm the fact and amount of the settlement to him.

In contrast, Mr. Scott claims that the December 15, 1997 mediation session ended without a settlement and that Calhoun did not agree with appellees’ counsel to settle the case on that date or thereafter.

Following the mediation session, appellees’ counsel sent a letter dated December 17, 1997, to Calhoun confirming the settlement reached at the mediation. In his affidavit, Calhoun acknowledges that the letter accurately confirmed the settlement. Thereafter, when Scott and his counsel were unable to resolve a fee dispute, Scott terminated their services. On January 5,1998, Calhoun informed appel-lees’ counsel that he and his firm had been terminated and that Scott intended to disclaim the settlement.

Appellees’ counsel contends Calhoun informed him several days later that the Scotts had reconsidered the termination of their counsel and decided to go forward with the settlement. In response, appel-lees’ counsel forwarded a settlement check in the amount of $60,000, a voluntary dismissal and a release and indemnity agreement. Subsequently, appellees’ counsel was informed that the settlement would not go forward and of the appearance of new counsel for the Scotts. Appellees then filed their motion to enforce the settlement.

The trial judge granted appellees’ motion to enforce the settlement agreement, finding that the Scotts were bound by the settlement agreement reached by their attorney of record, which was established orally and then by letter dated December 17, 1997. The trial court found no evidence of any dispute that oral and written agreements were reached between the attorneys for the parties.

We review the trial court’s decision de novo, under the same standards applicable to a motion for summary judgment. Superglass Windshield Repair v. Mitchell, 233 Ga. App. 200 (504 SE2d 38) (1998). Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” OCGA § 9-11-56 (c).

We agree with the trial court that the Scotts’ attorney had authority to enter into a binding settlement agreement on their behalf. Uniform Superior Court Rule 4.12 provides that “[attorneys of record have apparent authority to enter into agreements on behalf of their clients in civil actions. Oral agreements, if established, are enforceable.” The parties agree that Calhoun was attorney of record for the Scotts at the time of the mediation and for some limited time thereafter.

Under Georgia law, an attorney’s apparent authority
may be considered plenary unless it is limited by the client and that limitation is communicated to opposing parties. Therefore, from the perspective of the opposing party, in the absence of knowledge of express restrictions on an attorney’s authority, the opposing party may deal with the attorney as if with the client, and the client will be bound by the acts of his attorney within the scope of his apparent authority.

(Citations omitted.) Brumbelow v. Northern Propane Gas Co., 251 Ga. 674, 675 (308 SE2d 544) (1983). It is undisputed that no limitations on Calhoun’s authority were communicated to appellees’ counsel prior to January 5,1998. Calhoun therefore had authority to bind the Scotts to a settlement at the mediation or at any time thereafter, provided it was prior to notification to appellees’ counsel either that his authority was limited or that he was no longer employed by the Scotts. Clark v. Perino, 235 Ga. App. 444, 449 (2) (509 SE2d 707) (1998).

We disagree with the trial court that there is no dispute as to the existence of the oral settlement. Counsel for both parties submitted affidavits stating that they reached an oral settlement agreement at the mediation in the presence of Scott, who denies that any such settlement was reached. Therefore, a dispute exists whether an oral settlement was reached at the mediation on December 15, 1997.

Decided August 24, 1999

Reconsideration denied September 9, 1999

Michael B. King, for appellants.

Neal C. Scott, for appellees.

“[W]here the very existence of the agreement is disputed, it may only be established by a writing.” LeCroy v. Massey, 185 Ga. App. 828, 829 (366 SE2d 215) (1988). Ideally, the writing requirement will be met by a formal agreement signed by the parties. “However, letters or documents prepared by attorneys which memorialize the terms of the agreement reached will suffice.” Brumbelow, supra at 676. The settlement here was memorialized in the December 17, 1997 letter, which counsel for both parties agree sets forth the terms of the settlement.

The Scotts also dispute any written settlement and contend in their affidavits that Calhoun did not agree to settle the case at any time. They cannot, however, have personal knowledge of all actions taken by their attorney. Because affidavits must be made on personal knowledge, the Scotts’ statements regarding actions by Calhoun that may have taken place outside their presence are improper. In addition, the statements are conclusory, unsupported by facts properly before the court and attempt to answer one of the ultimate issues in this case. As a result, the statements are not sufficient to defeat appellees’ motion. See OCGA § 9-11-56 (e); Collins v. West American Ins. Co., 186 Ga. App. 851, 852 (3) (368 SE2d 772) (1988) (conclusory allegations by way of an affidavit will not be sufficient to avoid summary judgment).

Accordingly, we hold that a settlement was reached and subsequently memorialized in the December 17, 1997 letter from appel-lees’ counsel to Calhoun. We further hold that, at that time, Calhoun had authority to bind the Scotts to a settlement agreement. That agreement should be enforced.

Judgment affirmed.

Andrews, P. J., and Ruffin, J., concur.

       Although appellees contend that a January 22, 1998 letter from their counsel to another of appellants’ attorneys of record further confirms the settlement, the record does not reflect any agreement by appellants’ counsel to the specific terms of that letter.


author: Smith, Judge.

text:
    A99A0944.
    BACON v. THE STATE. WRIGHT v. THE STATE.
    A99A0945.
    (521 SE2d 695)
   Smith, Judge.

Antonio Bacon and James Wright were convicted on charges of armed robbery, kidnapping, possession of a firearm during the commission of a crime, and obstruction of an officer. Bacon was also convicted of possession of a firearm by a convicted felon. Their motions for new trial were denied, and they appeal. Finding no reversible error, we affirm.

1. Wright challenges the sufficiency of the evidence. Evidence was presented that on December 2, 1996, the victim visited a liquor store with a friend, Darrell Wilcox. The victim went inside the store, and when he returned outside, he saw Wilcox talking with Wright and Bacon. The victim entered a van previously driven by Wilcox, along with Bacon and Wright. Bacon drove the van away from the store, and a short time later, Wright pointed a gun to the victim’s head and told him to give him his money. The victim felt the barrel of the gun on the back of his head. Wright and Bacon took $96 or $97 from the victim. He testified that Bacon and Wright threatened to shoot him because they knew he had more money, and he told them that he had more money at his home. They went inside the victim’s home, and the victim’s mother woke up to voices in her hallway. She testified only that she saw someone running down the stairs after she awoke. The victim testified that three days later, Wright drove by his house in a “white Bonneville — Parisian” and asked if he wanted his money back. The victim’s mother testified that two men drove by in a white car and asked the victim whether he wanted his money back.

Evidence was also presented that several days after the incident, the victim accompanied Wright and Bacon to a funeral home for the purpose of the victim’s signing a document before a notary public. The notary refused to notarize the document, however, because of written errors in the document, and the three men returned approximately two and one-half hours later to the funeral home. At that time, the victim signed before the notary public a statement written by himself. Although the original document was not introduced by either defendant at trial, and the trial court refused to admit a photocopy of this document, the victim acknowledged on cross-examination that he wrote and signed the statement, which recited that Bacon and Wright “had nothing to do with any incident that occurred on Monday, December the 2d, 1996.” He testified that he signed the document because he was “scared.” He also testified that in the two and one-half hour interim between the two visits to the funeral home, he neither called the police nor told anyone about the document, because he was frightened.

We must review Wright’s “challenge to the sufficiency of the evidence under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), construing the evidence and all reasonable inferences from the evidence most strongly in favor of the jury’s verdict.” Sims v. State, 226 Ga. App. 116 (1) (486 SE2d 365) (1997). Although it is undisputed that the victim wrote and signed a statement, before a notary, reciting that Wright and Bacon were not involved in the incident at issue, a reasonable inference from the evidence is that he was frightened. Despite this statement, then, the evidence was sufficient to enable a rational trier of fact to find Wright guilty beyond a reasonable doubt under the standard of Jackson, supra.

2. Both Wright and Bacon argue that the trial court erroneously refused to admit a photocopy of the statement written and signed by the victim before the notary public. The trial court would not admit the photocopy into evidence under the best evidence rule, stating that “if the contents of the document are disputed, the original has to be produced or its whereabouts accounted for, for it to be admitted.” Bacon argues that the best evidence rule is inapplicable in this case because there is no dispute concerning the contents of the document, and Wright argues that the document should have been admitted for impeachment purposes.

We agree that the best evidence rule does not apply in this case, for it does not appear that the contents of the writing were disputed at trial. See King v. State, 209 Ga. App. 529, 530 (2) (a) (433 SE2d 722) (1993). But to warrant reversal, harm as well as error must be shown. See, e.g., Pettis v. State, 224 Ga. App. 77, 79 (3) (479 SE2d 460) (1996). Here, the victim candidly admitted writing and signing the statement, the contents of the statement were presented to the jury by virtue of the victim’s testimony, and each defendant was given full opportunity to cross-examine the victim and to use the statement to impeach him. Although, as pointed out by Bacon, the jury did ask to review the notarized note, we cannot agree with either Bacon or Wright under these circumstances that they were harmed by the trial court’s refusal to allow a photocopy of the statement to be admitted into evidence. See generally Duckworth v. State, 268 Ga. 566, 569-570 (492 SE2d 201) (1997).

3. Bacon contends the trial court erred in denying his motion for a continuance to allow additional time to secure the presence of a potential witness. But Bacon failed to meet all requirements of OCGA § 17-8-25. He failed to show, for example, that the witness lived within 100 miles from the place of trial, that he expected that he would procure the witness’s testimony at the next term of court, or that the application was not made for the purpose of delay. The trial court therefore did not abuse its discretion in denying the motion for continuance.

Decided August 18, 1999

Reconsideration denied September 9, 1999.

Tom A. Edenfield, for appellant (case no. A99A0944).

Darden & Moyers, Richard M. Darden, for appellant (case no. A99A0945).

Spencer Lawton, Jr., District Attorney, Michael K. Dennard, Assistant District Attorney, for appellee.

4. Bacon complains that the trial court erroneously overruled his hearsay objection to the testimony of an investigating officer concerning statements made by the victim to the officer. Detective Robert Larry with the Savannah Police Department testified that he investigated the report made by the victim. After acknowledging that the victim failed to mention anything about the notarized statement he wrote and signed until after Wright and Bacon were arrested, Larry testified that he spoke with the victim from time to time during the course of his investigation. He stated that during their conversations, the victim was afraid and would ask whether he had caught the men who robbed him. Larry also stated that the victim told him that the men had driven a white Pontiac Parisian to his residence, had asked whether he wanted his money back, and had laughed at him and driven off. The victim told Larry that “he tried to ignore them because his mother was there.”

Bacon argues that Larry’s testimony was not offered for the purpose of explaining his conduct and therefore was inadmissible hearsay. Even assuming, without deciding, that this is so, we find no reversible error in the admission of this testimony. It was merely cumulative of other evidence properly admitted at trial. See Smith v. State, 266 Ga. 827, 831 (470 SE2d 674) (1996); King, supra at 530 (1).

Judgment affirmed.

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

       We note that the sole defense witness testified that the original document was at his home. Consequently, if the best evidence rule were applicable to this case, it is questionable whether Bacon and Wright would be able to show that the writing had been “satisfactorily accounted for” under OCGA § 24-5-4.


author: Ruffin, Judge.

text:
    A99A0986.
    In re ESTATE OF BAGLEY.
    (522 SE2d 281)
   Ruffin, Judge.

In August 1990, Lillian Thomas Bagley died testate. In 1997, William Troy Bagley (Bagley), the decedent’s son, petitioned the probate court to be appointed executor of his mother’s estate. The probate court denied the petition, and Bagley appealed to superior court. The superior court denied Bagley’s petition and dismissed his appeal on the grounds that it was barred by res judicata, and Bagley filed this appeal. For reasons that follow, we affirm.

The relevant facts are as follows. The decedent was survived by three children: Bagley, Elizabeth Robertson and Jane Burns. In accordance with the will, Robertson was appointed executrix of the decedent’s estate. The will named Bagley as the successor executor in the event that Robertson died.

In July 1991, Burns petitioned the probate court to remove Robertson as executrix. The probate court denied Bums’ petition. In January 1992, Bagley also petitioned the probate court to remove Robertson as executrix and to appoint him as successor executor. The probate court denied Bagley’s petition, and Bagley appealed de novo to superior court, which held a jury trial. The jury found that Robertson should be removed as executrix, and on April 21, 1993, the trial court entered judgment on that verdict. Apparently, no successor executor was appointed at that time. In 1994, Bagley once again petitioned the probate court to be appointed executor, arguing that his mother had nominated him as the successor executor in her will. Following a hearing, the probate court denied Bagley’s petition. In an order dated September 14,1995, the probate court noted that Bagley and Robertson

have irreconcilable differences, and the Court believes that based upon their animosity and the likelihood that such animosity will continue, that the best interest of the Estate will be served by [Bagley] not serving as the successor or alternate Executor of the Estate.

The probate court then appointed Jackson Harris, County Administrator, as the administrator of the estate. Harris subsequently was replaced by J. Bryant Durham, Jr., who is a party to this appeal.

Bagley never appealed the September 1995 order, nor did he seek to have either Harris or Durham removed as administrator. In June 1997, however, Bagley filed a third petition with the probate court, seeking appointment as executor. Once again, Bagley pointed to the fact that he had been named successor executor in his mother’s will. Once again, the probate court denied his petition. Bagley appealed to the superior court, which denied his petition. In its order, the superior court noted that the estate was properly represented by Durham and was not in need of a new executor or administrator. In addition, the court found that Bagley’s failure to appeal the probate court’s September 1995 order denying his second petition to be appointed executor acted as res judicata.

1. Bagley contends that res judicata does not bar his 1997 petition to be appointed executor because the “issues in [the 1997] petition have not been previously ruled upon.” This contention lacks merit.

The doctrine of res judicata is codified in OCGA § 9-12-40, which provides that

[a] judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.

In order for res judicata to apply, several prerequisites must be satisfied: (1) identity of the cause of action; (2) identity of the parties; and (3) a previous adjudication on the merits by a court of competent jurisdiction. Fowler v. Vineyard, 261 Ga. 454, 455-456 (1) (405 SE2d 678) (1991). The party against whom the doctrine is raised also must have had a full and fair opportunity to litigate the issues. Id. In addition, the prior judgment must be a final judgment. Reid v. Reid, 201 Ga. App. 530, 532-533 (411 SE2d 754) (1991). A “judgment is not final as long as there is a right to appellate review.” (Punctuation omitted.) Id. at 533.

Here, the prerequisites for res judicata have been satisfied. In both the 1994 and 1997 petitions, Bagley sought appointment as executor of his mother’s estate. Thus, both petitions involved the same “cause of action.” Both petitions also involved the same parties. Moreover, the 1995 order of the probate court constituted a final order as Bagley failed to appeal the order within 30 days. See OCGA §§ 5-3-2 (a) and 5-3-20.

Bagley maintains that res judicata does not bar his 1997 petition because it is based upon a different theory from the 1994 petition. However, “[u]nder a plea of res judicata a former adjudication is a bar as to all matters placed in issue or which might have been placed in issue between the same parties, or their privies, upon the same cause of action.” (Punctuation and emphasis omitted.) King u. Plum-mer, 196 Ga. App. 711 (1) (397 SE2d 5) (1990). Because Bagley could have raised both theories in his 1994 petition, res judicata bars the subsequent petition.

Finally, Bagley argues that res judicata should not bar his 1997 petition because the facts have changed. With regard to res judicata,

[a] former judgment binds only as to the facts in issue and events existing at the time of such judgment, and does not prevent a re-examination even of the same questions between the same parties, if in the interval the material facts have so changed or such new events have occurred as to alter the legal rights or relations of the litigants.

(Punctuation omitted.) King, supra at 711-712 (1). In its 1995 order, the probate court concluded that it was not in the best interest of the estate for Bagley to serve as executor because of the dissension between Bagley and Robertson. Bagley presents no evidence whatsoever that the contentiousness has dissipated. Thus, the probate court’s conclusion that Bagley should not serve as executor is res judicata.

In so holding, we do not suggest that once a probate court appoints an administrator, the beneficiaries under the will are precluded from seeking the removal of that administrator. To the contrary, the beneficiaries may still petition the probate court for such a change, and under OCGA § 53-7-148, the probate court has authority to remove the administrator. See In re Estate of Dunn, 236 Ga. App. 211, 213-214 (3) (511 SE2d 575) (1999). However, it does not automatically follow that the probate court would be required to appoint Bagley. We note that Bagley does not contend that the current administrator has mismanaged the estate or that he has acted improperly. OCGA § 53-7-148. Moreover, the issue of Bagley’s suitability to serve as executor has already been decided adversely to him, and he presents nothing new that would justify a different result. Accordingly, the superior court correctly dismissed Bagley’s 1997 petition on the grounds that it was barred by res judicata.

Decided September 9, 1999.

McCrory & Baldwin, Aldous D. McCrory, for appellant.

Jones, Byington & Durham, J. Bryant Durham, Jr., Brinson, Askew, Berry, Seigler, Richardson & Davis, C. King Askew, Mark M. J. Webb, for appellee.

2. In view of our holding in Division 1, we need not address Bag-ley’s remaining enumerations of error.

Judgment affirmed.

McMurray, P. J., and Andrews, P. J., concur.

       The will first named the decedent’s husband as executor, but he predeceased his wife.

       The fact that a successor administrator was appointed does not change the identity of the parties. See State of Ga. v. Brookins, 257 Ga. 205, 207 (2) (357 SE2d 77) (1987) (“ ‘a final judgment has the effect of res judicata between the parties and their successors in interest’ ”).

       Bagley asserts that the 1994 petition was based “entirely upon his rights as the successor executor in the will,” and that the 1997 petition was based “entirely on the request of the majority of the heirs to have [him] appointed” executor. We note, however, that in his 1997 petition, Bagley asserted that he had been named successor executor in his mother’s will and his attorney referred to this fact at the hearing on that petition.


text:
    A99A1338.
    GILLMAN v. THE STATE.
    (522 SE2d 284)
   Smith, Judge.

Eddie Gene Gillman was indicted on charges of possession with intent to distribute cocaine and marijuana. He was tried by a jury, which found him guilty as charged. His motion for new trial, as amended, was denied, and he brings this appeal. We find no error, and we affirm.

1. Gillman raises the general grounds. Construed to support the verdict, the evidence presented at trial showed that Sergeant Chris Cannon of the East Metro Drug Enforcement Team (EMDET) arranged for an informant, Mary Durrance, to participate in a controlled drug “buy bust” operation on October 4, 1996. Cannon picked up Durrance at her home. They stopped at a grocery store, where Durrance paged Gillman. When the page was returned, a drug purchase was arranged for later that afternoon.

After picking up the supplies necessary for the operation, a search of Durrance and her purse was conducted and she was equipped with a body bug and given $400 of government funds to buy an “eight-ball” of cocaine. Cannon and Durrance then traveled to a service station, where Durrance again paged Gillman. Durrance received a return call, and she and Gillman arranged to meet at the parking lot of the service station, where four other agents were stationed. Gillman arrived and “cruised” around the parking lot in a manner Cannon described as calculated to check the area to see if police officers were present. Durrance entered the vehicle driven by Gillman, he asked her what she wanted, and she told him “whatever $400 would buy.” She then gave him $350, and he handed her two bags containing cocaine.

At a prearranged verbal signal, the officers moved in and arrested Gillman, and Cannon took Durrance out of the car. A pager, a glass vial containing off-white chunky material, and $350 in cash were found on Gillman’s person. A scanner and a cell phone were found in the car. Bags with markings indicating drug units were found on the driver’s seat, along with a black jacket in which a set of scales and syringes were found. Bags with markings indicating drug units were found on the driver’s seat. Cannon testified that these items were typically used in and were consistent with drug dealing. A large quantity of cocaine and marijuana, packaged for resale, was found in several locations in the car. Gillman denied that the drugs were his.

Gillman maintains that because no drugs were found on his person, the vehicle he was driving did not belong to him, and the informant’s undergarments were not searched before she entered his car, the evidence was insufficient to support his conviction. This contention is without merit. Gillman apparently did not own the car he was driving, having picked it up that morning from a used car lot for a “test drive.” But Gillman presented no evidence that the drugs and drug paraphernalia, such as scales and syringes, were placed there by the used car dealer, and it strains credulity that they would have been. Similarly, although Cannon testified that he did not search inside Durrance’s bra because no female officer was available, he did conduct a pat-down, he did search her purse, and he did require Dur-rance to turn out all her pockets and step out of her shoes. Items such as the scales and syringes would not have escaped detection.

Gillman was in possession and control of a vehicle containing overwhelming evidence of drug dealing. Large amounts of drugs were found in the car. A reliable informant testified that Gillman sold her drugs. The evidence presented was certainly sufficient to authorize the jury to find Gillman guilty as charged, under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Leming v. State, 235 Ga. App. 710, 711-712 (2) (510 SE2d 364) (1998).

2. During the sentencing phase of the trial, the State introduced a certified copy of a guilty plea previously entered by Gillman to charges of selling various drugs. Gillman objected on two grounds to the introduction of this evidence. The first basis for his objection was that the proceedings had an appearance of impropriety because the trial judge had been the district attorney when Gillman entered his previous guilty plea. The second ground was that the prior plea was not entered into knowingly and voluntarily. The trial judge refused to disqualify himself from sentencing Gillman, stating that without being shown any authority he saw no ground for recusal simply because of his former position as district attorney. The trial judge did recuse himself, however, from deciding the issue of whether the previous plea was voluntarily entered, and a different judge held a hearing on that issue. At that hearing, Gillman testified, but his former counsel were not called. In a lengthy and detailed order, after noting that Gillman’s two attorneys and his wife had been present when the plea was entered and that Gillman served six years in prison for that offense without ever mentioning that he felt he had been coerced to enter a guilty plea, the judge ruled that Gillman’s former plea had indeed been entered knowingly and voluntarily.

On appeal, Gillman again raises both grounds raised below in support of his request that the trial court not consider the prior guilty plea.

(a) We disagree with Gillman’s assertion that the prior guilty plea was not entered knowingly and voluntarily. The Supreme Court of Georgia recently revised the scheme regarding the allocation of burdens of proof in hearings to determine the voluntariness of guilty pleas used in sentence enhancement. Nash v. State, 271 Ga. 281 (519 SE2d 893) (1999). Previously, once a defendant raised the issue of intelligent and voluntary waiver with respect to prior guilty pleas, the burden was on the State to establish a valid waiver. Manker v. State, 223 Ga. App. 3, 6 (5) (476 SE2d 785) (1996). The State was permitted to carry this burden in two ways: a showing on the record of the previous guilty plea hearing that the defendant was aware of the rights he was waiving and the possible consequences of the plea, or, alternatively, filling a silent record by using extrinsic evidence showing that the plea was knowing and voluntary. Craft v. State, 234 Ga. App. 305, 307 (1) (506 SE2d 663) (1998).

In Nash, supra, the Supreme Court held that Pope v. State, 256 Ga. 195, 209 (17) (345 SE2d 831) (1986), which previously controlled this issue, does not apply to sentence enhancement in non-death penalty cases. Instead, Parke v. Raley, 506 U. S. 20 (113 SC 517, 121 LE2d 391) (1992),

applies to collateral attacks on final judgments in Georgia so as to place the burden of production on the recidivism defendant rather than the State when the defendant seeks under Boykin v. Alabama, [395 U. S. 238 (89 SC 1709, 23 LE2d 274) (1969)] to challenge the validity of a prior guilty plea used to enhance a sentence pursuant to OCGA § 17-10-7(a).

Nash, supra.

Here, as in Nash, the trial court was operating under the belief that the State had the burden of showing that the plea was voluntary. In Nash, under that circumstance, the Supreme Court remanded the case to allow Nash an opportunity to attempt to meet his burden of production at a hearing. Id. We conclude that in this case, however, it is not necessary to do so.

The transcript of the hearing shows that the State tendered into evidence a plea form in which Gillman indicated, by his answers to a number of questions, that he understood his rights, the proceedings, and the consequences of the plea, and in which he also acknowledged the lack of coercion. On the form, his counsel certified that he had investigated the facts of the case and that he had reviewed the questions with Gillman and that Gillman had indicated his understanding of them. Unlike the situation in Nash, where no evidence was adduced by the defendant to carry his burden, in this case Gillman took the stand. Gillman testified that his plea had not been voluntary because he himself had not checked off the answers on the form. But he testified that he could read and write, and he acknowledged that he signed the form. Moreover, he did not hesitate in acknowledging his guilt of the offense to which he pled guilty.

Given this testimony, we conclude that a remand such as the one ordered in Nash would serve no useful purpose. Under the new standard set forth in Nash and applying Parke v. Raley, supra, we must presume in this situation the regularity and legality of the prior plea hearing and the conscientious application of the Boykin colloquies. This is so even in the absence of a transcript of the plea hearing, unless the defendant produces evidence of invalidity once the fact of conviction is proved and the State shows that he was represented by counsel at that hearing. The State carried its burden under Nash in this case; given his testimony, Gillman cannot satisfy his. We conclude that even given the shifted burden of producing evidence, the trial court therefore did not err in considering the prior guilty plea in enhancement of sentence.

(b) Gillman also contends the trial judge erred in failing to recuse himself based upon an appearance of impropriety created by the trial judge’s service as district attorney when Gillman’s previous guilty plea was entered. We have found no authority in Georgia law supporting Gillman’s contention that failure to recuse was error under these circumstances. But even if it was error, we are unable to discern harm to Gillman, given our determination that the previous guilty plea was knowingly and voluntarily entered and Gillman’s admission on the record that he was indeed guilty of that offense.

Moreover, motions to recuse must be timely. They must be made “ ‘as soon as the facts demonstrating the basis for disqualification become known.’ ” Pope v. State, supra at 214 (26). Uniform Superior Court Rule 25.1 provides that such motions must be made “not later than five (5) days after the affiant first learned of the alleged grounds for disqualification,” unless good cause is shown. In this case, trial was held on November 11, 1997. On that date at the very latest, Gill-man was certainly aware that the trial judge had been the district attorney at the time the former plea was entered. A hearing on the voluntariness of that former guilty plea was held on November 20, 1997. A motion for recusal was not made, however, until August 20, 1998, after the voluntariness of the former plea had been determined and Gillman had been sentenced. If Gillman was aware of a possible basis for recusal, he had no right to sit back, hope for a favorable ruling or sentencing, and then raise the issue for the first time on appeal. Pope, supra at 214 (26). Gillman has therefore failed to preserve this issue for review. Harris v. State, 202 Ga. App. 618, 622-623 (7) (414 SE2d 919) (1992).

3. We do not agree with Gillman that his trial counsel was ineffective because he failed to file a motion for recusal. Under the guidelines established in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), it is well established that a strong presumption exists that trial counsel’s performance was effective and that any particular challenged action or omission “might be considered sound strategy.” (Citation and punctuation omitted.) Ferrell v. State, 261 Ga. 115, 119 (3) (401 SE2d 741) (1991). In this case, Gill-man’s trial counsel was called as a witness at the hearing on the motion for new trial. He testified that he researched the law carefully on the issue of recusal, and he felt that such a motion would not be granted. He did not make such a motion because in his opinion it might have been considered frivolous. Because this decision was a matter of strategy, it may not be considered on the issue of counsel’s effectiveness.

4. We find no merit in Gillman’s contention that the trial court made improper comment on the evidence in violation of OCGA § 17-8-57. As best we understand Gillman’s contention, he argues that the trial court prejudiced him by making the alleged improper comment while ruling that defense counsel could not proceed with a certain line of questioning when cross-examining Durrance. Gillman’s defense was based on the theory that Durrance had brought the drugs, which had a street value of approximately $1,000, into the car driven by Gillman. Durrance testified she was paid $100 for participating in this “buy bust.” When defense counsel asked the witness when her husband had left her, the question was objected to by the State on the ground of relevance. The defense argued that it was relevant to show the witness’s income. In sustaining the State’s objection, the trial court commented to counsel: “Well, Counselor, as the State just pointed out, why would somebody who had thousands of dollars of drugs exchange that for $100?”

Even assuming this comment somehow prejudiced Gillman, it was made when the trial court was explaining to counsel the reason for his ruling sustaining the State’s objection. It is well established that a judge’s remarks made when assigning reasons for rulings “are neither an expression of opinion nor a comment on the evidence.” (Citation and punctuation omitted.) Faulkner v. State, 186 Ga. App. 879, 880 (2) (368 SE2d 820) (1988).

Decided September 9, 1999.

Melanie R. Metcalf, for appellant.

Alan A. Cook, District Attorney, Jay M. Jackson, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Johnson, Chief Judge.

text:
    A99A1481.
    RAVAN CONSTRUCTION COMPANY, INC. et al. v. SMITH.
    (522 SE2d 293)
    Decided September 9, 1999.

      Daniel J. Sammons, for appellants.

      Joe B. Sartain, Jr., Judy D. Sartain, for appellee.
   Johnson, Chief Judge.

Ravan Construction Company, Inc., Regina Ravan and Gary Ravan (collectively “Ravan Construction”) file this direct appeal from the trial court’s order striking their answer and counterclaim and declaring them in default. This court does not have jurisdiction to decide this case.

The order appealed from states that because Ravan Construction did not comply with discovery rules, “the answer and counterclaim of Defendants shall be and are hereby struck and that Defendants are in default.” No amount of judgment is included in the order. No default judgment has ever been entered.

“The law distinguishes between a default, which involves an interlocutory matter, and a default judgment, which represents final judicial action and the vesting of rights.” (Citations and punctuation omitted.) Simons v. Equitec Properties Co., 190 Ga. App. 804 (380 SE2d 90) (1989). Because no final judgment has been entered in this case, the interlocutory appeal procedure was mandated. Id.; OCGA § 5-6-34 (b). Inasmuch as Ravan Construction did not follow that procedure, the appeal must be dismissed. See Ware v. Handy Storage, 222 Ga. App. 339 (474 SE2d 240) (1996); Neal v. State of Ga., 182. Ga. App. 37 (354 SE2d 664) (1987).

Appeal dismissed.

Pope, P. J., and Smith, J., concur.


author: Eldridge, Judge.

text:
    A99A1549.
    JOHNSON v. THE STATE.
    (522 SE2d 478)
   Eldridge, Judge.

Vickie Michelle Johnson appeals her conviction on three charges of cruelty to children. Her sole enumeration of error challenges the sufficiency of the evidence. Held:

On appeal [,] the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility. [Cits.]

Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990); see also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). In evaluating the sufficiency of the evidence, “the relevant question is whether . . . any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Cit.]” (Emphasis in original.) Id. at 319.

Viewed in this light, the evidence showed that, on July 11, 1998, Johnson took her four-year-old son, Raheem, to Mitchell County Hospital. The child was unconscious and unresponsive to either painful or verbal stimuli. Dr. Barbara Kupka Smith examined the child and determined that he was suffering from, inter alia, a complete break of his ulna and radius in his lower left arm. The child did not regain consciousness and died less than an hour later. An autopsy revealed that the child’s death resulted from very recent massive blows to the abdomen which ruptured his liver and damaged his spleen and pancreas. The medical examiner who conducted the autopsy opined that the blows took place within hours of the child’s death and were inflicted by an adult. He testified that there were several “very fresh” bruises on the child’s abdomen, including some small round bruises which appeared to have been caused by someone punching the child with their fist or knuckles. The medical examiner opined that the larger bruises could have been caused by someone slapping or kicking the child. He expressly noted that the pattern and number of the bruises could not have been caused by the child falling on a toy. Finally, the medical examiner testified that, in addition to the complete break in the left arm, the child’s right arm had a “green stick” fracture.

An investigator from the Camilla Police Department, Vernon Nobles, testified that he went to Johnson’s home shortly after the child’s death; the cause of death had not yet been determined. He photographed the residence and noted at trial that there were no toys or other sharp objects on the floor upon which the child could have fallen; the photographs were introduced as evidence.

Agent John Heinen, a special agent with the Georgia Bureau of Investigation, interviewed Johnson several times between July 11 and 13, 1998. The interviews were recorded on audiotape, and the tapes were played for the jury. However, the tapes were not transcribed at trial, and neither the tapes nor transcripts of the tapes were available for review on appeal. The record before this Court shows that, during the first two interviews, Johnson denied harming the child and denied any knowledge or explanation of how the child may have been harmed. In a third interview, she claimed that she had fallen on the child. Finally, she admitted that, on the morning of the child’s death, she had hit him several times for climbing on the dresser.

At trial, Johnson testified in her own behalf and denied harming the child. She admitted that she had lied to the investigators about falling on the child and claimed that she had lied about whipping the child. She again denied any knowledge about how the child had been injured.

Following this presentation of evidence, the jury acquitted Johnson of felony murder, but convicted her of three counts of cruelty to children in causing the abdominal injuries that resulted in the child’s death, as well as the fractures of both arms. In so doing, the jury clearly rejected Johnson’s claim of ignorance regarding the child’s injuries.

On appeal, Johnson claims that there was insufficient evidence that she acted “maliciously” in harming her child, as required by OCGA § 16-5-70 (b). However, under this Code section,

malice in the legal sense imports the absence of all elements of justification or excuse and the presence of an actual intent to cause the particular harm produced, or the wanton and wilful doing of an act with an awareness of a plain and strong likelihood that such harm may result. Intention may be manifest by the circumstances connected with the perpetration of the offense. Intent is a question of fact to be determined upon consideration of words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.

(Punctuation and footnote omitted.) Sims v. State, 234 Ga. App. 678, 681 (1) (b) (507 SE2d 845) (1998). See also Brewton v. State, 216 Ga. App. 346, 348 (454 SE2d 558) (1995), rev’d on other grounds, 266 Ga. 160 (465 SE2d 668) (1996); Stokes v. State, 204 Ga. App. 586, 587 (2) (420 SE2d 84) (1992). An actor’s intention can be proven from circumstantial evidence, and the determination of such intention is “peculiarly a question for the jury.” (Citations and punctuation omitted.) Brewton v. State, 216 Ga. App. at 348.

Decided September 9, 1999.

Billy M. Grantham, for appellant.

J. Brown Moseley, District Attorney, Victoria Spear-Darrisaw, Assistant District Attorney, for appellee.

In this case, Johnson told police investigators that she had hit Raheem four or five times on the morning of his death; she later denied the truth of this statement. It is solely within the purview of the jury to determine if, and when, Johnson was telling the truth. OCGA § 24-9-80. In finding Johnson guilty of cruelty to children, the jury clearly found Johnson’s testimony incredible, choosing instead to infer from the evidence that Johnson inflicted the child’s wounds and, in doing so, acted either intentionally or in wanton and wilful disregard of the potential harm to her child. The evidence in this case was sufficient to support this finding, i.e., for a rational trier of fact to find that Johnson was guilty beyond a reasonable doubt of the crimes charged. OCGA §§ 24-4-5; 16-5-70 (b); Jackson v. Virginia, supra. Further, the circumstantial evidence presented was not only consistent with the finding of guilt, but also excluded “every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-4-6.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

       Under OCGA § 16-5-70 (b), a person commits cruelty to children “when such person maliciously causes a child under the age of 18 cruel or excessive physical or mental pain.”

       The voluntariness of Johnson’s statements is not at issue in this appeal.


author: McMURRAY, Presiding Judge.

text:
    A99A1855.
    JACKSON v. THE STATE.
    (522 SE2d 295)
   McMURRAY, Presiding Judge.

A jury found defendant guilty of aggravated assault with a deadly weapon, a knife, under OCGA § 16-5-21 (a) (2). The trial court denied his motion for new trial, and this appeal followed. Held:

In a single enumeration of error defendant contends the trial court expressed its opinion in favor of the State’s case in violation of OCGA § 17-8-57 when, in its instructions recharging the jury, the trial court informed the jury that: “Self-defense is not an issue in this case. The Defendant said he did not do it.”

In order to determine whether a trial court has improperly expressed an opinion in its charge as to what has or has not been proved, the whole charge may be considered. (Cits.) OCGA § 17-8-57 is only violated when the court’s charge assumes certain things as facts and intimates to the jury what the judge believes the evidence to be. (Cits.)

Decided September 9, 1999.

Patricia F. Angelí, for appellant.

Robert E. Keller, District Attorney, Erman J. Tanjuatco, Assistant District Attorney, for appellee.

(Punctuation omitted.) Beam v. State, 265 Ga. 853, 857 (5) (463 SE2d 347).

A review of the entire recharge reveals that the trial court did not intimate any conclusion as to the evidence before the jury. Beam v. State, 265 Ga. at 857 (5), supra; compare Coleman v. State, 211 Ga. 704, 705 (5) (88 SE2d 381) (in which the trial court charged the jury “ ‘the evidence shows that there was a robbery’ ”).

Rather, the trial court recharged the jury that defendant, who offered denial as his sole defense, was not legally entitled to a justification self-defense charge. Stevens v. State, 8 Ga. App. 217, 218 (68 SE 874). This the trial court properly did. When a jury requests a recharge on any question, it is the duty of the trial court to do so, Matthews v. Taylor, 155 Ga. App. 2, 3 (2) (270 SE2d 247), whether by restating the entire charge or addressing the requested points only. Williams v. State, 151 Ga. App. 765 (1), 766 (261 SE2d 487). “ ‘[I]t is the duty and responsibility of the trial judge to ascertain the law applicable to a case and to instruct the jury of what the law consists.’ ” Dunn v. State, 145 Ga. App. 612, 613 (2) (244 SE2d 127); see also Emory Univ. v. Lee, 97 Ga. App. 680, 697 (4) (104 SE2d 234).

Judgment affirmed.

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

       The defendant repeatedly and emphatically denied having assaulted his victim with a knife, resulting in trial defense counsel’s withdrawal of his requests to charge based upon the affirmative defense of justification. No other evidence presented an issue of justifiable aggravated assault in self-defense.


text:
    A99A2187.
    CUNNINGHAM v. THE STATE.
    (522 SE2d 480)
   McMurray, Presiding Judge.

Defendant Cunningham pleaded guilty to a single violation of the Georgia Controlled Substances Act (possession of cocaine) and received a two-year probated first offender sentence. He appeals from the superior court’s order denying his motion to withdraw his plea at a resentencing hearing necessitated by the State’s discovery after initial sentencing that he had previously pled guilty to burglary under the First Offender Act, rendering him ineligible for first offender treatment. The defendant challenges the validity of his guilty plea in two enumerations of error. Held:

1. In his first enumeration of error, defendant asserts the trial court erred in denying his motion to withdraw the guilty plea because the plea “was void ab initio, in that the Trial Court was under the mistaken impression that [he] was a First Offender.”

“ ‘Once the question of the validity of a guilty plea (or nolo contendere) plea has been raised, the burden is on the State to show that the plea was intelligently and voluntarily entered. The State may accomplish this end by two means, (1) showing on the record of the guilty plea hearing that the defendant was cognizant of all the rights he was waiving and the possible consequences of his plea; or (2) fill a silent record by use of extrinsic evidence that affirmatively shows that the guilty plea was knowing and voluntary.’ (Cit.)” White v. State, 211 Ga. App. 779 (440 SE2d 527) (1994). However, “(a)fter pronouncement of sentence, a ruling on a motion to withdraw a plea of guilty is within the [sound] discretion of the trial court and will not be disturbed on appeal absent a manifest abuse of such discretion.” (Citations and punctuation omitted). Bice v. State, 212 Ga. App. 184 (441 SE2d 507) (1994).

Spurgeon v. State, 214 Ga. App. 227 (447 SE2d 164).

The transcript of the plea proceeding in the case sub judice shows that before the court accepted defendant’s plea, the trial court asked him a series of questions concerning the voluntariness of his plea and his rights waiver. In responding to such questions, defendant stated he understood the nature of the charge against him, understood the maximum permissible punishment that could be imposed against him for such offense, understood the rights he gave up by entering a plea of guilty, including the right to counsel, and he was not under the influence of any drugs, medicines or intoxicants of any kind. Further, defendant indicated his trial counsel explained the First Offender Act to him, and, in response to a direct question propounded by the trial court, stated he had not previously been convicted of a felony. The State’s attorney had no evidence to the contrary. While defendant correctly argues that the trial court erroneously believed him to be entitled to first offender treatment, the evidence is decidedly to the contrary showing that he defrauded the court in this respect. “[Defendant] will not now be heard to complain that the trial court. . . should not have let him ‘get away’ with this fraud. See Bevil v. State, 220 Ga. App. 1, 3 (7) (b) (467 SE2d 586) (1996) (party cannot complain of error created by his own misconduct).” Johns v. State, 223 Ga. App. 553, 554 (2) (479 SE2d 388). The trial court’s explanation that a plea resulted in defendant’s waiver of significant rights, defendant’s acknowledgment that he understood his decision to plead guilty, and defendant’s statement that he made his decision upon consulting with his attorney support the trial court’s finding that defendant knowingly, voluntarily and intelligently entered the instant guilty plea. Accordingly, this enumeration of error is without merit.

2. In his remaining enumeration of error, the defendant contends that the court should have allowed him to withdraw his guilty plea in that he would not have entered the plea but for the ineffectiveness of his trial counsel. This claim of error is likewise without merit.

To prevail on a claim of ineffective assistance of counsel in the context of a guilty plea, [defendant] must show counsel’s performance fell below an objective standard of reasonableness and that there is a reasonable probability that, absent counsel’s errors, he would not have pleaded guilty. Tarwater v. State, 259 Ga. 516, 517 (383 SE2d 883) (1989). A court’s finding that counsel has rendered effective assistance will be affirmed unless it is clearly erroneous. Kelly v. State, 267 Ga. 252, 253 (2) (447 SE2d 110) (1996).

Martin v. State, 268 Ga. 584-585 (492 SE2d 223). The defendant cannot make the required showing, as the evidence shows that trial counsel sought disposition of defendant’s case under the First Offender Act with defendant’s consent after explaining the Act to the defendant.

It is presumed that counsel will fulfill the role in the adversary process that the Sixth Amendment envisions, and has rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland v. Washington, 466 U. S. 668, 688, 690 (104 SC 2052, 80 LE2d 674).

Decided September 9, 1999

Lee Sexton, for appellant.

Robert E. Keller, District Attorney, Todd E. Naugle, Assistant District Attorney, for appellee.

Scurry v. State, 194 Ga. App. 165,166 (390 SE2d 255). Presuming the foregoing of trial counsel, we conclude that defendant misrepresented his status as a first offender no less to his attorney at trial than he did to the trial court. As defendant will not be heard to fault the trial court for his fraud on the court, neither will he be heard to fault his trial attorney for such fraud for he, and he alone, is the responsible party. Johns v. State, 223 Ga. App. 553, supra.

Judgment affirmed.

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

       The trial court asked defendant, “Have you been convicted of a felony anywhere, anytime?” He responded, “No, ma’am.”

       The trial court asked defendant, “Sir, I understand from your attorney that you would consent to a disposition of this case under the First Offender Act, is that correct?” Defendant replied, “Correct.”


text:
    A99A0890.
    STEPHENSON v. INGRAM.
    (522 SE2d 500)
   Phipps, Judge.

Martha Ray Stephenson sued Henry Ingram seeking damages arising from an automobile collision. Ingram was incapacitated by injuries suffered in the collision, and the court appointed a guardian ad litem to represent his interests in the case.

Ingram subsequently died. A suggestion of death was filed on October 14, 1996, and served on Stephenson’s attorney. On October 14, 1997, Ingram’s widow, as administratrix of his estate, acknowledged service of the suggestion of death.

On May 29, 1998, the administratrix filed a motion to dismiss, claiming Stephenson had failed to substitute her as a party within 180 days of the suggestion of death on the record. On June 17, 1998, Stephenson filed a response to the motion and a motion to substitute representative for the defendant.

The superior court denied Stephenson’s motion to substitute the administratrix as defendant and granted the administratrix’s motion to dismiss. Stephenson appeals. We affirm.

In its order granting the motion to dismiss the court found that the guardian ad litem relationship had terminated upon Ingram’s death. The court found no excusable neglect by Stephenson in her failure to make a substitution of parties as required by OCGA § 9-11-25.

Stephenson claims the superior court abused its discretion in granting the motion to dismiss and denying her motion to substitute. She claims the court erred in strictly applying OCGA § 9-11-25 because a guardian was representing Ingram’s interest in the case prior to Ingram’s death. She disputes the court’s finding that the guardian ad litem could not act on Ingram’s behalf following his death. We disagree for the following reasons.

OCGA § 9-11-25 (a) (1) provides for the dismissal of an action against a deceased party if a proper party is not substituted for the deceased within 180 days following the time the death is suggested upon the record by service of a statement of a fact of the death. See Anderson v. Southeastern Capital Corp., 148 Ga. App. 164 (1) (251 SE2d 55) (1978) (180-day period computed from date of service of the suggestion of death rather than the filing). The suggestion of Ingram’s death was filed in the record, all interested parties notified and served, and the applicable time period for substitution of parties expired. Dismissal of the case by the superior court was consistent with the statutory requirements. See Mullís v. Bone, 143 Ga. App. 407 (238 SE2d 748) (1977) (trial court correct in granting motion to dismiss because no motion to substitute was made during statutory period).

OCGA § 9-11-6 (b) authorizes the court to extend the period allowed for substituting a proper party if Stephenson can show her failure to act was the result of excusable neglect. Jernigan v. Collier, 234 Ga. 837, 840.(2) (218 SE2d 556) (1975).

Stephenson argues that the presence of an acting guardian ad litem distinguishes this situation from those in which no representative was acting on a defendant’s behalf prior to his death. She claims there was understandable confusion concerning who was representing Ingram’s interest in the case.

A guardianship ad litem terminates upon the death of the ward. OCGA § 29-5-9 (e); see Chastain v. Baker, 178 Ga. App. 649 (344 SE2d 472) (1986). The guardian ad litem could not have acted for Ingram following his death, and there is no indication in the record that the guardian did, or that Stephenson was induced to believe that the guardian was acting on Ingram’s behalf. To the contrary, a letter from defendant’s counsel to the court, and copied to Stephenson’s counsel more than a year before the filing of the motion to dismiss, stated that defendant’s counsel no longer considered Ingram’s guardian to be participating in the case.

We find nothing in Stephenson’s arguments or the record that would excuse Stephenson’s failure to make a timely substitution of parties. See, e.g., King v. Green, 189 Ga. App. 105 (375 SE2d 53) (1988). The court has wide, though not unrestrained, discretion in extending the time in which a substitution of parties may be made. See Jones v. Howard, 153 Ga. App. 137, 140 (1) (264 SE2d 587) (1980). The superior court did not abuse its discretion in finding no excusable neglect. Franklin v. Collins, 167 Ga. App. 596 (307 SE2d 66) (1983).

Decided September 10, 1999.

Harrison & Llop, Steven M. Harrison, for appellant.

McKenney, Jordan & Carey, John D. Carey, for appellee.

Judgment affirmed.

Andrews, P. J., and Ruffin, J., concur.


text:
    A99A0922.
    In the Interest of M. J. H., a child.
    (522 SE2d 491)
   Smith, Judge.

M. J. H. was charged by delinquency petition with conduct which, had he been an adult, would have constituted a violation of the Georgia Controlled Substances Act by possession of less than one ounce of marijuana. OCGA §§ 16-13-30 (j); 16-13-2 (b). M. J. H. moved to suppress the drugs found in his vehicle, and the trial court granted the motion in a lengthy, well-written, and well-reasoned order. The State appeals under OCGA § 5-7-1.1 (2). We agree with the trial court that the police officer lacked the required reasonable and articulable suspicion to make a brief investigative stop of M. J. H.’s vehicle, and we therefore affirm.

In reviewing a trial court’s decision on a motion to suppress evidence, we construe the evidence most favorably to uphold the findings and judgment of the trial court. We adopt the trial court’s findings on disputed facts and on the credibility of witnesses unless those findings are clearly erroneous. Those findings will not be disturbed if there is any evidence to support them. Sprauve v. State, 229 Ga. App. 478, 479 (1) (494 SE2d 294) (1997). Viewed in this light, the record reveals that the arresting officer routinely rode past a county park on his way home from work to “check the park out and make sure there’s no vandalism.” While the officer testified that the park was “an area of high vandalism,” he was unable to identify the last time he investigated such a case, testifying only that the department received calls on “turning tail spins” or damage to signs on an average of once a month.

As the officer drove past the park at approximately 10:00 p.m. on January 3, 1998, he noticed a pickup truck parked “sideways” across the marked spaces in the parking lot. The officer acknowledged, however, that this manner of parking did not violate any law and that he did not observe the occupants doing anything wrong. On further investigation, he found no evidence of vandalism in the park. He also testified that he was unsure if hours were posted for use of the park.

The officer decided to question the occupants of the truck; he pulled up in the parking lot, activated his emergency warning lights, and approached the truck with his hand on his firearm. He acknowledged that the occupants of the vehicle were not free to leave at the time he approached the vehicle. When he tapped on the passenger side window, the occupant rolled down the window, and the officer smelled a distinctive odor of burning marijuana. The occupants of the truck consented to a search of the vehicle, and marijuana was found.

At least three types of police-citizen encounters exist: verbal communications that involve no coercion or detention; brief “stops” or “seizures” that must be accompanied by a reasonable suspicion; and “arrests,” which can be supported only by probable cause. Verhoeff v. State, 184 Ga. App. 501, 503 (362 SE2d 85) (1987). We agree with the trial court that the officer’s approach to the vehicle in this case constituted a second-tier encounter, a brief “stop” or “seizure” requiring the officer to have a reasonable and articulable suspicion of wrongdoing.

A “seizure” within the meaning of the Fourth Amendment occurs when, in view of all the circumstances surrounding the incident, a reasonable person believes that he is not free to leave. Moran v. State, 170 Ga. App. 837, 840 (318 SE2d 716) (1984). While an officer may simply approach a stopped vehicle and inquire as to what is going on without initiating a “stop” or “seizure,” McClain v. State, 226 Ga. App. 714, 716 (487 SE2d 471) (1997), the inquiry may become a stop or seizure if the officer restrains the citizen’s movement by physical force, command, or show of authority. Aranda v. State, 226 Ga. App. 157, 158 (486 SE2d 379) (1997) (threatening presence, display of weapon, physical touching, or use of language or tone implying compulsion may indicate seizure); see also State v. Bryant, 203 Ga. App. 69, 71 (416 SE2d 368) (1992).

The officer’s approach to M. J. H.’s stopped vehicle is factually different from the incident in State v. Folk, 238 Ga. App. 206 (521 SE2d 194) (1999), in which we reversed the grant of a motion to suppress. In Folk, a police officer simply walked up to Folk’s car and asked what he was doing, and Folk willingly responded. That officer did not restrain or direct Folk’s movement by any show of authority, order, or physical force and did nothing to prevent Folk from driving away. We characterized the encounter as “casual and conversational.” Id. at 208. Here, in contrast, the officer activated his emergency lights and approached the vehicle with his hand on his weapon. Moreover, he acknowledged that M. J. H. and his companion were not free to leave. Under these circumstances, we agree with the trial court that this encounter was a “stop” within the meaning of the Fourth Amendment.

Decided September 10, 1999.

Roger G. Queen, District Attorney, John G. Wilbanks, Jr., Assis tant District Attorney, for appellant.

A second-tier encounter may violate the Fourth Amendment if the officer briefly “stops” or “seizes” a citizen without reasonable suspicion. Reasonable suspicion exists when an officer has a particularized and objective basis for suspecting that a citizen is or is about to be involved in criminal activity.

An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal conduct. What is demanded of the police officer, as the agent of the state, is a founded suspicion, some necessary basis from which the court can determine that the detention was not arbitrary or harassing.

(Citations and punctuation omitted.) State v. Fowler, 215 Ga. App. 524, 525 (451 SE2d 124) (1994).

Construing the evidence, as we must, to uphold the findings and judgment of the trial court, we agree that the record shows no objective manifestation that M. J. H. was, or was about to be, engaged in criminal conduct. The officer acknowledged he did not observe the occupants of the truck doing anything wrong. The only arguably suspicious behavior observed by the officer was parking a vehicle outside the white lines in the parking lot of a public park at 10:00 at night.

We reversed the denial of a motion to suppress evidence obtained in a vehicle stop under very similar facts in Attaway v. State, 236 Ga. App. 307, 309 (511 SE2d 635) (1999). There, as here, no evidence was introduced that the driver of the car had violated any local ordinance or other law, or that any other basis existed for making a stop. The mere fact that past incidents of vandalism had occurred in the area of the stop did not indicate that the driver was, or was about to be, engaged in criminal conduct, in the absence of some information linking the driver to the vandalism. We concluded that the driver’s behavior “did not provide a ‘particularized and objective basis for suspecting him of criminal activity sufficient to justify an investigatory stop.’ ” Id. And unlike the officer in Attaway, the officer here had not even received a call reporting illegal or suspicious behavior, but simply drove by the park on his way home. We agree with the trial court that the officer “lacked a reasonable and articulable suspicion to detain” M. J. H., and we affirm the grant of his motion to suppress.

Judgment affirmed.

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

Bray & Johnson, H. Michael Bray, for appellee.


text:
    A99A0982.
    WATERS v. STATE OF GEORGIA.
    (522 SE2d 493)
   Smith, Judge.

In this drug forfeiture proceeding under OCGA § 16-13-49, Jamie Waters appeals the trial court’s grant of the State’s motion to dismiss his answer for failure to contain the information required by OCGA § 16-13-49 (o) (3). In his sole enumeration of error, Waters contends the trial court erred in refusing to allow him to amend his answer. We disagree and affirm.

Waters relies upon the recent Supreme Court of Georgia decision of Rojas v. State of Ga., 269 Ga. 121 (498 SE2d 735) (1998). In Rojas, the Supreme Court held that the provisions of OCGA § 16-13-49 (o) (3) did not prohibit the filing of an amended answer beyond the 30-day period granted for filing an initial answer, even if that initial answer was insufficient to meet the pleading requirements of the Code section. Id. at 123-124. But that holding is inapplicable here, even assuming that the trial court in fact forbade the amendment, because Waters clearly was permitted by law to amend his answer but failed to do so.

The procedural history of this case shows that the State filed its petition for forfeiture, and Waters filed a timely answer. The State erroneously contended that Waters’s answer was untimely and sought and obtained an order entering judgment on that basis. Waters filed a motion to vacate and set aside that order. The State also filed a motion to strike Waters’s answer as insufficient under OCGA § 16-13-49 (o) (3).

At the hearing on Waters’s motion to vacate and set aside, the trial court granted Waters’s motion and reinstated the answer. At that time, the trial court inquired whether the State had anything further, and the State asked for a ruling on its motion to strike. Waters’s counsel stated that he had not received a copy of the motion to strike and objected to going forward on the motion. The trial court then told Waters’s counsel that it would give him “a few moments to look at it and then tell me whether or not you can be prepared to argue that this afternoon. You may take a few moments to look at it.”

After a brief pause, the proceedings resumed. Waters’s counsel argued extensively in opposition to the motion to strike. Only after the trial court indicated its inclination to rule in favor of the State did Waters orally request permission to amend two paragraphs of the answer. The trial court responded, “You indicated a few moments ago that you were prepared to argue the motion to strike which was what we did. I’m gonna take it under advisement.” By taking the pending motions under advisement, the trial court declined to make a decision at the hearing and never explicitly instructed Waters’s counsel that he could not file an amendment. Waters’s counsel did not request clarification or a definitive ruling from the court.

Moreover, the record does not reflect that any order was ever entered forbidding amendment of Waters’s answer. “ ‘What the judge orally declares is no judgment until it has been put in writing and entered as such.’ ” G. M. J. v. State of Ga., 130 Ga. App. 420, 421 (1) (203 SE2d 608) (1973). And “ ‘[u]ntil an order is signed by the judge (and is filed) it is ineffective for any purpose.’ [Cit.]” State v. Moore, 207 Ga. App. 677, n. 1 (428 SE2d 815) (1993). More importantly, Waters did not need to seek permission to amend his complaint. “A party may amend his pleading as a matter of course and without leave of court at any time before the entry of a pretrial order.” OCGA § 9-11-15 (a). The Supreme Court plainly stated in Rojas, supra, that the amendment provisions of OCGA § 9-11-15 apply to forfeiture actions and that amendments to answers in forfeiture proceedings are permitted. Id. at 123.

The hearing was held on September 9, 1998. The trial court’s order striking Waters’s answer was not entered until October 5, 1998. During this time, Waters made no effort to amend his answer, and the record contains no motion or proffer showing the substance of any proposed amendment.

No matter how erroneous a ruling of a trial court might be, a litigant cannot submit to a ruling or acquiesce in the holding, and then complain of the same on appeal. He must stand his ground. Acquiescence deprives him of the right to complain further. A party’s acquiescence to the ruling of a trial court deprives the party of a right to complain of that ruling on appeal, and acquiescence can be caused by silence.

(Citations and punctuation omitted.) Carr v. State, 214 Ga. App. 367, 368 (448 SE2d 33) (1994). By acquiescing in the trial court’s oral comment and by failing to take any action to amend his answer for almost 30 days before the trial court’s order was entered, despite his ability to do so as a matter of right, Waters has waived the issue of whether the trial court improperly forbade him to amend his answer.

Decided September 10, 1999.

Gaines C. Granade, for appellant.

Robert E. Keller, District Attorney, Rita B. Jackson, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       At the hearing, the State attributed this error to a delay in in-house delivery to the State’s attorney in charge of the case and to the separation of the certified mail receipt from the answer.


author: Miller, Judge.

text:
    A99A1139.
    ALLEN v. THE STATE.
    (522 SE2d 502)
   Miller, Judge.

Jerry Allen was convicted of two counts of aggravated child molestation, two counts of child molestation, and simple battery. His sole ground for appeal is that the trial court erred in denying his motion to use a written questionnaire to discern whether any potential jurors (or their family members or close friends) had been sexually molested as a child. The court found Allen presented nothing persuasive showing that jurors would not respond truthfully to oral questions.

Citing OCGA § 15-12-133 and Cowan v. State, 156 Ga. App. 650, 651 (275 SE2d 665) (1980), Allen argues the court was required to allow him to propound the questions via a written questionnaire to ensure candid answers from the jurors. Nothing in the statute nor in Cowan stands for this proposition. These authorities simply establish a defendant’s right to question jurors individually, but control of that examination “is normally within the discretion of the court. Whitlock v. State, 230 Ga. 700, 706 (5) (198 SE2d 865) (1973).” Id.

Holding that the right to examine jurors individually did not encompass isolated examination, Whitlock explained:

The single purpose for voir dire is the ascertainment of the impartiality of jurors, their ability to treat the cause on the merits with objectivity and freedom from bias and prior inclination. The control of the pursuit of such determination is within the sound legal discretion of the trial court, and only in the event of manifest abuse will it be upset upon review.

230 Ga. at 706 (5).

Decided September 10, 1999.

Straughan & Straughan, Mark W. Straughan, for appellant.

Timothy G. Vaughn, District Attorney, Russell P. Spivey, Assistant District Attorney, for appellee.

Whether voir dire questions are propounded in writing or orally is a matter that falls within the sound discretion of the trial court. Jones v. State, 263 Ga. 904, 907 (9) (b) (440 SE2d 161) (1994) (written questions disallowed); Baxter v. State, 254 Ga. 538, 542 (5) (b) (331 SE2d 561) (1985) (written questions disallowed); Wallace v. State, 248 Ga. 255, 261 (5) (282 SE2d 325) (1981) (written questionnaire allowed). Voir dire below was not transcribed, and, after voir dire was complete, Allen had no challenge to the jury selected. We discern no manifest abuse of discretion in the disallowance of Allen’s written questionnaire.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

       The State’s claim that this matter was not preserved for appellate review is without merit. A party is not required to except to adverse rulings on his motions. Cowan v. State, 156 Ga. App. 650, 651 (275 SE2d 665) (1980).


text:
    A99A1402.
    PURVIS v. THE STATE.
    (522 SE2d 499)
   Miller, Judge.

Celia Purvis was convicted of conspiracy to traffic in cocaine. Citing insufficient evidence, Purvis appeals. We affirm.

Purvis was charged as a co-conspirator with Elliott Norton and Franklin Blasengame. Norton testified that he, Blasengame, and Purvis jointly planned to purchase one or two kilograms of cocaine with $28,000 in cash obtained by Purvis. Norton further testified that Purvis brought the money to his mother’s house and accompanied him to Bartow County to purchase the cocaine. Norton and Blasengame met undercover Agent Skinner to purchase the cocaine while Purvis stayed in a truck parked at Wal-Mart with the money. Prior to purchasing the cocaine, Blasengame went to Wal-Mart to retrieve the money from Purvis. He waited next to Purvis’ truck for a few minutes and returned without the money after she failed to return to her vehicle.

Norton and Blasengame were arrested while purchasing the cocaine. Georgia Bureau of Investigation Agents Giles and Tarvin went to the Wal-Mart and found $28,000 in cash and a .357 pistol when they searched Purvis’ truck, with her present. Citing OCGA § 24-4-8, Purvis contends no evidence corroborates Norton’s testimony that she actively participated in the conspiracy to purchase cocaine.

Decided September 10, 1999.

Kelley A. Dial, for appellant.

To sustain a felony conviction based upon the testimony of an accomplice,

there must be corroborating facts or circumstances, which, in themselves and independently of the testimony of the accomplice, directly connect the defendant with the crime, or lead to the inference that he is guilty, and [are] more than sufficient to merely cast on the defendant a grave suspicion of guilt. . . . [T]he necessary corroboration may consist entirely of circumstantial evidence, and evidence of the defendant’s conduct before and after the crime was committed may give rise to an inference that he participated in the crime.

(Citations and punctuation omitted.) Harrison v. State, 259 Ga. 486, 488 (1) (384 SE2d 643) (1989); see OCGA § 24-4-8.

In addition to Norton’s testimony, the State presented evidence from GBI Agents Giles and Tarvin regarding Purvis’ apprehension and the subsequent seizure of $28,000. Prior to Blasengame’s arrest, the agents followed him to the Wal-Mart and saw him wait next to a truck. Following Norton’s and Blasengame’s arrest, the agents returned to Wal-Mart and observed Purvis as she went to the truck and appeared to wait for someone. They revealed themselves as GBI agents and requested permission to search the vehicle. After Purvis gave permission, the agents discovered a gun and a plastic bag containing $28,000 in cash in the vehicle.

The State presented sufficient corroborating evidence. Corroborating evidence does not need to prove every element of the crime charged; it need only connect the defendant with the crime. Whitfield v. State, 159 Ga. App. 398, 400 (6) (283 SE2d 627) (1981). Slight evidence connecting the defendant with the crime is sufficient. Quaid v. State, 132 Ga. App. 478, 482 (1) (208 SE2d 336) (1974). The conduct of the defendant before, during and after the crime is relevant to determine intent and whether the conduct was sufficient to corroborate the accomplice testimony. Harrison, supra, 259 Ga. at 488. When viewed in the light most favorable to the State, the evidence sufficed to support the verdict. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

T. Joseph Campbell, District Attorney, Mickey R. Thacker, Assistant District Attorney, for appellee.