text:
    A01A2226.
    ATTAWAY v. REPUBLIC SERVICES OF GEORGIA, LLP.
    (558 SE2d 846)
   Johnson, Presiding Judge.

Republic Services of Georgia, LLP (“Republic”) filed an action for permanent injunctive relief and damages against Robert Attaway. Attaway appeals an order of the trial court granting Republic’s motion permanently restraining him from violating restrictive covenants contained in a sales agreement between Attaway and Republic. Attaway argues that a subsequent restrictive covenant in his employment contract supersedes the earlier covenant in the sales agreement. We do not agree, and we affirm the trial court’s order restraining Attaway from violating the restrictive covenants.

On appeal from the grant of a permanent injunction, the standard of review is whether or not the trial court manifestly abused its discretion. A “trial judge manifestly abuses his discretion when he grants an injunction adverse to a party without any evidence to support such judgment and contrary to the law and equity.”

With this standard in mind, the record shows that Attaway owned a waste collection and disposal business, Sinclair Disposal Service, Inc., which he sold to Republic on March 28, 1997. Sinclair conducted business in Baldwin, Johnson, Washington, Jones, Wilkinson, Hancock, Putnam, Greene, and Laurens Counties. As part of the transaction, Attaway transferred his customer lists, client accounts, and records, among other assets, to Republic. Paragraph 12.5 of the asset purchase agreement, signed on March 28,1997, was a covenant not to compete which provided in part that Attaway would not:

directly or indirectly, for a period of five years following the Closing Date, (i) engage in (as an owner, partner, employee, agent, consultant or otherwise) any business which would be competitive with the business conducted by the Seller or any of its Affiliates on the Closing Date in the counties of Johnson, Washington, Baldwin, Jones, Wilkinson, Hancock, Putnam, Greene and Laurens. . . .

Contemporaneous with the sale of the business, Attaway also signed a separate document ancillary to his forthcoming employment with Republic entitled “Covenant Not to Compete.” The covenant was similar in scope to the noncompete clause in paragraph 12.5 of the purchase agreement, but was tied to his employment termination date. The document stipulated that “In the event of any inconsistency between the provisions of the Agreement [the asset purchase agreement] and this Covenant Not To Compete, the terms of this Covenant Not To Compete shall control.”

Following the sale, Attaway took a position with Republic as general manager of the Milledgeville operation, Sinclair Disposal Service. In March 1998 all of the managers, including Attaway, were required to sign a document entitled “Confidentiality and Non-Compete Agreement” which, in part, detailed employee obligations with regard to confidential information and ownership of work product. It also contained a subsection entitled “Agreement Not to Compete.” This agreement contained the following language:

Employee agrees not to compete, “raid” other employees, or solicit any customers, suppliers, or employees of customers or suppliers within one (1) year of leaving the employment of the Company for any reason whatsoever. Furthermore, Employee agrees that at all times during his/her employment with the Company and for twelve (12) months thereafter, Employee shall not (i) engage in any business as, or own an interest in, . . . any . . . business entity ... if such entity is engaged in any business . . . competitive with any business conducted by the Company ... in any place in the Territory. . . .

The managers were instructed that they must sign the document in order to receive salary bonuses and stock options as part of Republic’s incentive program for managers.

In July 1999, Attaway left the company. He formed Attaway Waste Services in January 2000, and in August 2000, he began competing with Republic in the nine-county restricted area in the waste collection, disposal, and transportation business. Republic was granted a court order enjoining the operation of Attaway Waste Services until March 28, 2002, the date the 1997 covenant provision within the asset purchase agreement would expire.

In three related enumerations which he argues as one, Attaway contends that the trial court erred in finding that the covenant not to compete in the 1997 sales agreement was valid. According to Attaway, the restrictive covenant in the 1998 agreement superseded the restrictive covenant in the 1997 sales agreement because the subject matter of both documents is the covenant not to compete or solicit. He relies on a provision in the 1998 document which reads:

The Agreement is ancillary to the employment of Employee with the Company and does not define all the terms and conditions of that engagement, including but not limited to compensation, but expresses the entire agreement between Employee and the Company with respect to the subject matter of the Agreement and supersedes all prior oral or written understandings or agreements regarding that subject matter.

We find no error in the trial court’s decision.

The evidence supports the trial court’s finding that the subject matter of the 1997 sales agreement was the sale of Attaway’s waste business and his related obligations as the seller, while the subject matter of the 1998 agreement was Attaway’s employment. We decline to accept Attaway’s argument that a one-year covenant not to compete ancillary to an employment agreement supersedes by its language the longer terms of the restrictive covenant in the sales agreement.

Clearly, the noncompete covenant ancillary to the sale of the business relates to subject matter entirely different from that of the noncompete covenant ancillary to Attaway’s employment as a manager with Republic.

The vendor who signs a covenant not to compete when selling a business receives an equivalent for his partial abstention from that business, in the increased price paid him for it on account of his covenant. The covenant operates to his affirmative pecuniary benefit and against his impoverishment, in that, while being paid for desisting from the particular business in the locality covered by it, he may still enter upon other pursuits of gain in the same locality or upon this one in other localities.

Further, the restrictions act to protect the purchaser’s legitimate business interests, such as good will and value of the business.

The unambiguous language of the 1998 covenant states that “Employee will be given access to certain confidential and proprietary information relating to the Company and its business operations. As a condition of Employee’s employment with the Company, the parties wish to confirm certain understandings with respect thereto.” The subject matter of the 1998 agreement relates to Attaway’s duties and obligations as a Republic employee. As such, we cannot agree that the covenant not to compete contained within this agreement acted to supersede a covenant not to compete within an asset purchase agreement for which Attaway was compensated over $4 million in stocks.

Decided January 16, 2002

Anderson, Walker & Reichert, Travis M. Trimble, for appellant.

Jones, Cork & Miller, Robert C. Norman, Jr., for appellee.

As the trial court recognized, Georgia law provides substantial protection and latitude to covenants ancillary to the sale of a business because the covenants are a significant part of the consideration for the purchase of the business. Accordingly, we find no error in the trial court’s grant of Republic’s motion for a permanent injunction to enforce the noncompete covenant in the 1997 sales agreement.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

        Teachers’ Retirement System &c. v. Forehand, 234 Ga. App. 437, 438 (506 SE2d 913) (1998).

       Id.

       (Citations and punctuation omitted.) Carroll v. Ralston & Assoc., 224 Ga. App. 862, 864 (481 SE2d 900) (1997).

         Id. See also Redmond v. Royal Ford, Inc., 244 Ga. 711, 714 (261 SE2d 585) (1979) (promisors in the covenants in the sale of business sold the good will of their business and were compensated for it).

       See Arnall Ins. Agency v. Arnall, 196 Ga. App. 414, 419 (2) (396 SE2d 257) (1990).

       See Carroll, supra; Drumheller a Drumheller Bag & Supply, 204 Ga. App. 623, 626 (1) (420 SE2d 331) (1992).


source: Caselaw Access Project

author: Johnson, Presiding Judge.

license: Public Domain

text:
    A01A2284.
    CAMPBELL v. THE STATE.
    (558 SE2d 857)
   Johnson, Presiding Judge.

Victor Roy Campbell was indicted for sexually abusing his stepdaughter. The multi-count indictment alleged that he began abusing her when she was 13 years old, that the abuse went on for several years, and that it included acts of oral and anal sex. Campbell pled not guilty to the charges and was tried before a jury, which found him guilty of two counts of child molestation, three counts of aggravated child molestation, one count of aggravated sexual battery, and two counts of cruelty to children in the first degree. Campbell appeals from the judgments of conviction entered on the verdict. We affirm the convictions.

1. The stepdaughter testified that over several years Campbell kissed her, placed her hand on his penis, placed his mouth on her genitals, touched her breasts and genitals with his hand, inserted his finger into her vagina, used various sexual paraphernalia with her, showed her pornographic pictures and videotapes, and inserted his penis into her mouth and anus.

After the girl’s mother divorced Campbell, the girl told her mother about the abuse. Upon learning of the abuse, the mother contacted the police. According to the mother, while they were married, Campbell tried to get her to use her daughter’s name during sex. The police searched Campbell’s residence and found the sexual paraphernalia and videotapes described by the child.

Decided January 16, 2002.

Having reviewed the evidence in the light most favorable to the verdict, we find sufficient evidence from which a rational trier of fact could have found Campbell guilty of the crimes charged.

2. Campbell contends that the trial judge erred in refusing to allow him to ask several questions of the jury panel during voir dire, including questions about prospective jurors’ beliefs regarding sex between spouses, the jurors’ own sexual conduct, and their beliefs regarding possible romantic feelings by a teenager for an adult. While the pre-trial transcript reveals that the court did disallow some of Campbell’s proposed voir dire questions, the actual voir dire was not transcribed. Thus, it is impossible for us to know exactly what questions were asked of the prospective jurors and if, in the context of the full voir dire, the trial court improperly limited Campbell’s ability to discover bias or prejudice harbored by any prospective juror. Absent a transcript of the voir dire, this court must presume that this portion of the trial was conducted in a regular and proper manner.

3. After he filed his enumeration of error and appellate brief challenging only the jury voir dire, Campbell secured the services of substitute appellate counsel, who has filed a supplemental brief seeking to raise the additional issue of the effectiveness of Campbell’s trial counsel. This attempt to raise a new issue in the supplemental brief provides nothing for us to review. “Attempts in a supplemental brief to expand the issues beyond the scope of the enumeration of errors are improper.” Because there is no valid enumeration of error raising the issue of the effectiveness of trial counsel, we may not consider the issue.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

Justin J. Wyatt, Joseph A. Maccione, for appellant.

Patrick H. Head, District Attorney, Amy H. McChesney, Eleanor A. Kornahrens, Assistant District Attorneys, for appellee.

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

       See Raulerson v. State, 268 Ga. 623, 630 (5) (491 SE2d 791) (1997).

        Hines v. State, 208 Ga. App. 470 (1) (431 SE2d 137) (1993); Reedman v. State, 193 Ga. App. 688, 689 (2) (388 SE2d 763) (1989).

        Holloway v. State, 245 Ga. App. 510, 515 (4) (537 SE2d 708) (2000).

       See Vick v. State, 205 Ga. App. 600, 601 (2) (423 SE2d 46) (1992) (this court has no jurisdiction to review ineffective assistance of counsel claim where the issue was not raised in the original enumeration of errors, but is raised for the first time by substitute appellate counsel in a supplemental enumeration of error).


author: Ellington, Judge.

text:
    A01A2343.
    YOUNGBLOOD v. THE STATE.
    (558 SE2d 854)
   Ellington, Judge.

A Fulton County jury convicted Tilford Youngblood of three counts of battery, OCGA § 16-5-23.1 (a), and aggravated assault, OCGA § 16-5-21 (a) (2), arising out of the April 6, 1998 attack on his girlfriend. Counts 1 through 3 of Youngblood’s indictment alleged aggravated battery; Count 4 alleged aggravated assault. On Counts 1 through 3, the jury found Youngblood guilty of the lesser included offense of battery. The trial court merged the battery convictions into the greater offense, Count 4, aggravated assault, and sentenced Youngblood to 15 years imprisonment. In this second appearance of this case before us, Youngblood contends the trial court erred in denying his motion for new trial on several grounds. We affirm his battery convictions and remand this case to the court below for sentencing on those convictions. However, because Youngblood was denied the effective assistance of counsel with respect to his aggravated assault conviction, it must be reversed.

1. Youngblood contends the trial court lacked jurisdiction to entertain his motion for new trial because at the time his motion was heard, the remittitur had not been returned. A trial court lacks “jurisdiction to take any action in a case prior to receiving the remittitur from the appellate court.” Chambers v. State, 262 Ga. 200 (415 SE2d 643) (1992). On June 8, 2001, this Court remanded this case to the trial court to resolve Youngblood’s then pending motion for new trial. On June 14, 2001, the trial court entered an order denying Youngblood’s motion. On June 27, 2001, Youngblood filed his notice of appeal.

The record before us contains no evidence showing when the remittitur was filed with the clerk below. We must presume, however, that the trial court performed its official duties in accordance with the law. See Gunter v. State, 243 Ga. 651, 654 (1) (256 SE2d 341) (1979). “The presumption is in favor of the regularity and legality of all proceedings in the court below.” (Citations and punctuation omitted.) Bridges v. State, 227 Ga. 24 (2) (178 SE2d 861) (1970). Because Youngblood has not supported his argument with record evidence, and because we must presume that the court below properly resolved the motion when it had jurisdiction to do so, we find no merit to this claim of error.

2. In related enumerations of error, Youngblood contends the trial court erred in entering judgment on and sentencing him for aggravated assault because the indictment failed to allege that offense. The indictment charged Youngblood in Count 4 with the offense of “AGGRAVATED ASSAULT (FELONY)” in that he “did unlawfully commit an assault” upon the victim “by striking” her with his “hands, fists, feet and [an unknown] blunt object.” The indictment failed to allege that the instruments used to assault the victim were either deadly weapons or that when used offensively resulted in or were likely to result in serious bodily injury as required by OCGA § 16-5-21 (a) (2). The Supreme Court has held that such an aggravated assault indictment is so fundamentally flawed as to charge no crime at all and is, therefore, void. Smith v. Hardrick, 266 Ga. 54, 55-56 (3) (464 SE2d 198) (1995); see State v. Eubanks, 239 Ga. 483 (238 SE2d 38) (1977) (sufficiency of indictments generally). The error, however, was not preserved for our review because Youngblood failed to timely challenge the legal sufficiency of the aggravated assault count. He filed no demurrer to the indictment, nor did he file within the term of court in which the judgment of conviction was entered a proper motion in arrest of judgment. See, e.g., Parks v. State, 246 Ga. App. 888, 889 (1) (543 SE2d 39) (2000); McKay v. State, 234 Ga. App. 556, 558-559 (2) (507 SE2d 484) (1998); Hammock v. State, 201 Ga. App. 614-615 (1) (a) (411 SE2d 743) (1991). Consequently, Young-blood’s claim that the aggravated assault count of the indictment is void can be reviewed only “through a habeas corpus proceeding.” (Citations omitted.) McKay v. State, 234 Ga. App. at 560 (2).

3. Youngblood contends he was deprived of his Sixth Amendment right to effective assistance of counsel. “To establish a claim of ineffective assistance at trial requiring reversal of a conviction, a criminal defendant must show that counsel’s performance was deficient and that the deficient performance prejudiced the defense.” Lakes v. State, 266 Ga. 389 (2) (467 SE2d 566) (1996).

We have reviewed each of Youngblood’s complaints that counsel performed deficiently. With but one exception, we find that each of these complaints pertains to essentially unreviewable tactical decisions counsel made during the course of the trial. See Ferrell v. State, 261 Ga. 115, 120 (3) (401 SE2d 741) (1991). Counsel’s performance was deficient, however, in his failure to challenge the validity of the aggravated assault count of the indictment. As explained in Division 1 above, that count of the indictment was void. Counsel’s failure to challenge a void count is not reasonable under the circumstances nor can it be justified as a tactical decision when counsel admitted in the hearing on Youngblood’s motion for new trial that he thought the count sufficiently set forth the crime of aggravated assault. See Parks v. State, 246 Ga. App. at 889 (1); Hammock v. State, 201 Ga. App. at 614-615 (1) (a). Counsel’s failure to challenge the validity of the indictment contributed to Youngblood’s felony conviction on a void count and caused a procedural default that prevented direct appellate review of that otherwise reversible error. Counsel’s error, therefore, harmed Youngblood and prejudiced his defense. Because Young-blood was deprived of his Sixth Amendment right to the effective assistance of counsel with respect to the aggravated assault count, we must reverse his conviction on that count.

4. The trial court did not err in granting the State’s motion to limit evidence of the victim’s drug use to the day of the assault. Youngblood argues that the court should have allowed evidence of the victim’s crack cocaine addiction in support of his justification defense. However, any evidence touching upon the victim’s use of drugs prior to the assault was irrelevant to Youngblood’s claim of justification. Smiley v. State, 271 Ga. 734, 735 (2) (524 SE2d 234) (1999). Under the facts of this case, even assuming that the testimony Youngblood sought to elicit would have authorized the jury to infer that the victim had previously used crack cocaine, prior drug use by the victim would not have tended to prove her reputation for violence or the reasonableness of Youngblood’s claim that the force he used was necessary. Id.

5. Youngblood’s final enumeration of error challenges the sufficiency of the evidence. The record evidence authorized the jury to find that Youngblood beat his girlfriend with his hands and feet, leaving her hospitalized with cuts, bruises, and facial fractures. This evidence amply supports Youngblood’s battery convictions. See Williams v. State, 248 Ga. App. 316, 319 (1) (546 SE2d 74) (2001).

Decided January 16, 2002.

J. M. Raffauf, for appellant.

Paul L. Howard, Jr., District Attorney, Christopher M. Quinn, Assistant District Attorney, for appellee.

Judgment affirmed in part and reversed in part and case remanded for resentencing.

Johnson, P. J., and Ruffin, J., concur.

       Youngblood’s first appeal, Case No. A01A0857, was remanded “for a ruling on Young-blood’s motion for new trial.”

       The State argues that, reading the indictment as a whole, the “likely to result in serious bodily injury” element may be inferred from the aggravated battery counts. The State would be correct if the aggravated assault count had contained language which, by reference, incorporated the equivalent of this element from the aggravated battery counts. Durden v. State, 152 Ga. 441, 442-443 (110 SE 283) (1921); Staples v. State, 199 Ga. App. 551, 552, n. 1 (405 SE2d 551) (1991); Perry v. State, 62 Ga. App. 115, 117-118 (8 SE2d 425) (1940). The aggravated assault count, however, included no such incorporating or referential language, and a defective indictment cannot be aided by inference. O’Brien v. State, 109 Ga. 51, 52 (35 SE 112) (1900).

       Youngblood’s appellate attorney, who was appointed after the term of court in which the conviction was entered, did amend the motion for new trial to challenge the sufficiency of the aggravated assault count. Such a challenge, however, cannot be made in a motion for new trial. Therefore, raising the issue in an amended motion for new trial will not cure the motion’s untimeliness by having it relate back to the original motion for new trial. McKay v. State, 234 Ga. App. 556, 559 (2) (507 SE2d 484) (1998).


text:
    A01A2391.
    GATEWOOD v. THE STATE.
    (559 SE2d 81)
   Johnson, Presiding Judge.

Gerald Gatewood was indicted for aggravated child molestation, seven counts of sexual exploitation of children, contributing to the delinquency of a minor, and two counts of exhibiting pornographic materials to a minor. A jury found him guilty of five counts of sexual exploitation of children and acquitted him of all other counts in the indictment. Gatewood contends the evidence is insufficient to support his convictions. He further contends the trial court erred in allowing the introduction of character evidence and in denying his motion for a mistrial. We find no error, and we affirm Gatewood’s convictions.

1. Viewed in a light most favorable to support the jury’s verdict, the evidence shows that Gatewood and his wife babysat for a ten-year-old and her fourteen-year-old sister during 1997 and 1998. In May 1998, Gatewood’s wife discovered two pornographic pictures of the children in her home. The children informed their mother that Gatewood had taken the pictures. Gatewood and his wife agreed to a search of their home, where four more pornographic photographs of the children were found in Gatewood’s bedroom closet in his shirt pocket. Police also found Polaroid film debris in the trash at Gate-wood’s home.

The children testified that Gatewood took most of the photographs and was present when all the photographs were taken. They further testified that it was Gatewood’s idea to make the pornographic photographs and that Gatewood told them how to pose for the photographs. In addition, the state introduced Gatewood’s confession, in which he admits taking two or three photographs of the girls’ breasts and three or four nude photographs of the girls together.

(a) Gatewood contends that the state failed to prove a material element of the indictment as to Counts 6 and 7, where the language in the indictment alleges that the children were under the “custody and control” of Gatewood. According to Gatewood, his wife babysat the children and had both custody and control of them. The evidence, however, shows that at various times, including the time when the photographs were made, Gatewood’s wife worked and left the girls home with Gatewood. It is clear from the evidence that Gatewood had custody and control of the minors during these visits and was left with the children as the sole adult in the home. In fact, one of the children testified that Gatewood was her babysitter. This evidence provides a legally sufficient basis for a jury to conclude that the custody and control element was proven beyond a reasonable doubt.

Gatewood further attempts to expand and bolster his enumeration of error by arguing that the trial court improperly charged the jury as to the custody and control issue. However, this Court has repeatedly held that an enumeration of error cannot be enlarged by a brief to give appellate viability to an issue not contained in the original enumeration. Gatewood’s assertion of charging error is beyond the reasonable scope of his enumeration of error regarding sufficiency of the evidence. Thus, it is not properly before us for consideration.

(b) Gatewood further maintains that it was inconsistent for the jurors to find him guilty of Count 8 of the indictment, while finding him not guilty of Counts 3 and 4 of the indictment. We find no inconsistency. Count 8 of the indictment tracked a different subsection of OCGA § 16-12-100 than did Counts 3 and 4. Count 8 tracked subsection (b) (5) of the statute, which concerns the creation of the photograph. Counts 3 and 4 tracked subsection (b) (3) of the statute, which involves some element of coercion, employment, persuasion, inducement, or enticement. In the present case, the jurors could have been convinced beyond a reasonable doubt that Gatewood took the photographs, but somewhat less convinced that Gatewood coerced or induced the children to take the photographs. In fact, Gatewood’s confession alone was sufficient to sustain a conviction for Count 8 of the indictment.

(c) As for Counts 2 and 5, these counts involved the possession of the pornographic photographs by Gatewood. Gatewood contends possession was not proven because other individuals had equal access to his bedroom and his bedroom closet. It is undisputed that the photographs at issue were found in Gatewood’s home, in his bedroom, in his closet, and in his shirt pocket. In addition, the testimony of the children indicated that Gatewood had kept three or four photographs. There is sufficient evidence to support these counts.

2. Gatewood next asserts that the trial court erred in allowing inadmissible and prejudicial character evidence to be introduced at trial. This evidence consisted of two pornographic magazines which were seized from Gatewood’s home during the execution of the search warrant. He first argues that the state failed to provide a notice of intent to present evidence of similar transactions, as required by Uniform Superior Court Rule 31.3, with regard to the two magazines. We reject this argument. It has not been argued that Gatewood took any of the pictures published in the magazines. Thus, the magazines do not constitute similar transactions or prior bad acts, and the state was not required to comply with the mandates of USCR 31.3.

We next consider Gatewood’s argument that the admission of these two magazines contravened the ride recently enunciated by the Supreme Court:

In a prosecution for a sexual offense, evidence of sexual paraphernalia found in defendant’s possession is inadmissible unless it shows defendant’s lustful disposition toward the sexual activity with which he is charged or his bent of mind to engage in that activity. Under this rule, sexually explicit material cannot be introduced merely to show a defendant’s interest in sexual activity. It can only be admitted if it can be linked to the crime charged.

Applying this test to the present case, we are not convinced that it was error to admit the two magazines depicting adult pornography. The fact that the subject matter of the pornographic magazines is adults and the subject matter of the pornographic photographs at issue in this case is children does not operate to make the magazines irrelevant. Unlike the cases cited by Gatewood, this case does not involve a conviction for sexual molestation or sexual abuse of a child, where adult pornographic magazines have been held irrelevant and inadmissible. Rather, this is a case directly dealing with a conviction for sexual exploitation of children, specifically the taking of pornographic photographs. Thus, pornographic magazines, even though they depict adults, show Gatewood’s lustful disposition for pornographic pictures and are linked to the crime charged. The trial court did not err in admitting the two pornographic magazines.

Moreover, even assuming that the pornographic magazines of adults were irrelevant and inadmissible, the admission of these magazines was harmless beyond a reasonable doubt in light of the overwhelming admissible evidence of Gatewood’s guilt, including his own admission. In light of Gatewood’s admission that he took two or three photographs of the girls’ breasts and three or four nude photographs of the girls together, we find that there is no possibility that the jury would have returned a different verdict had the trial court excluded the two magazines from evidence.

Decided January 16, 2002.

Jackson & Schiavone, Michael G. Schiavone, for appellant.

R. Joseph Martin III, District Attorney, Anthony A. May, Assistant District Attorney, for appellee.

3. Gatewood asserts the trial court erred in denying his motion for a mistrial after an investigator testified during cross-examination that he “did a voice stress analysis.” Gatewood’s attorney immediately objected and moved for a mistrial. The trial court denied Gate-wood’s motion for a mistrial, but instructed the jury to disregard the response to the question and not to use it in any deliberations. We find no error.

Even assuming that a voice stress analysis test is akin to a lie detector test, the Supreme Court has consistently ruled that “[t]he mere fact that the jury was apprised that a lie detector test was taken is not necessarily prejudicial if no inference as to the result is raised.” No such inference was raised here because the detective never mentioned the results of the test. Because the grant of a mistrial was not “essential to preserve the right to a fair trial,” we will not disturb the trial court’s exercise of its discretion.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

        Wright v. State, 228 Ga. App. 223 (491 SE2d 466) (1997); Burton v. State, 212 Ga. App. 100, 101 (1) (441 SE2d 470) (1994).

        Unden v. State, 218 Ga. App. 463, 466 (5) (462 SE2d 408) (1995).

        Bryan v. State, 246 Ga. App. 531 (1) (541 SE2d 97) (2000).

        Simpson v. State, 271 Ga. 772, 774 (1) (523 SE2d 320) (1999).

       See Frazier v. State, 241 Ga. App. 125, 126-127 (1) (524 SE2d 768) (1999).

       See Pittman v. State, 273 Ga. 849, 850 (3) (546 SE2d 277) (2001).

       See London v. State, 274 Ga. 91, 94-95 (4) (c) (549 SE2d 394) (2001).

       (Citation, punctuation and emphasis omitted.) Lyons v. State, 271 Ga. 639, 642 (6) (522 SE2d 225) (1999); Hayes v. State, 244 Ga. App. 12, 14-15 (4) (534 SE2d 577) (2000).

        Lyons, supra; Hayes, supra.


author: Phipps, Judge.

text:
    A02A0392.
    GLENN et al. v. THE STATE.
    (559 SE2d 86)
   Phipps, Judge.

Katherine Glenn and her daughter Charity Glenn were convicted of committing an aggravated assault upon Amylia Vaughn with a knife. Additionally, Charity Glenn was convicted of committing a simple battery on Vaughn by hitting her, and Katherine Glenn was convicted of making terroristic threats by threatening Vedrin Glenn with a knife. In this appeal, the Glenns complain of the trial court’s refusal to instruct the jury on self-defense. Finding no evidence to support that defense, we affirm.

Constance Glenn, another of Katherine Glenn’s daughters, fought with one of Vaughn’s friends over Vaughn’s boyfriend. Afterward, Katherine and Charity Glenn drove to the school to confront Vaughn. According to Vaughn and another witness, Charity Glenn started a fight by making certain threatening verbal comments and then getting out of the car and hitting Vaughn. Vaughn and the other witness testified that during the fight, Charity Glenn pulled a knife and began swinging it at Vaughn, causing her to flee. Vaughn and two other witnesses gave testimony to the effect that, during the fracas, Katherine Glenn obtained the knife and threatened bystander Vedrin Glenn with it after he grabbed her hand in an attempt to disarm her. According to one witness, Vedrin Glenn had pretended that he was going to retrieve a weapon before grabbing Katherine Glenn. There was, however, no evidence that Vedrin Glenn possessed a weapon at the time of his confrontation with Katherine Glenn or that she thought he had a weapon.

Two defense witnesses testified about the altercation between Vaughn and the Glenns. Both testified that the fight between Vaughn and Charity Glenn began after Vaughn “offered some words” or “said some cuss words,” and that Charity Glenn picked up the knife after it fell out of Vaughn’s purse. Neither defense witness provided any additional details concerning the fight.

The Glenns asked the trial court to charge the jury, in accordance with OCGA § 16-3-21 (a), that “a person is justified in threatening or using force against another when and to the extent that he reasonably believes that such threat or force is necessary to defend himself against such other’s imminent use of unlawful force.” Because no one testified to any attempt by Vaughn or Vedrin Glenn to harm Katherine or Charity Glenn at the time in question, or to any verbal threats to do physical harm to them, there was no evidence of any “imminent use of unlawful force” by either victim. Therefore, the court did not err in refusing to give the jury the requested instruction on self-defense.

Judgment affirmed.

Andrews, P. J., and Mikell, J., concur.

Decided January 16, 2002.

Dennis T. Blackmon, for appellants.

Peter J. Skandalakis, District Attorney, Tara M. Wilson, Assistant District Attorney, for appellee.

       Compare Jones v. State, 220 Ga. App. 784 (470 SE2d 326) (1996) (where defendant testified that he shot at alleged victims because they were shooting at him, trial court erred in refusing to charge the jury on self-defense); Harrell v. State, 205 Ga. App. 378 (1) (422 SE2d 71) (1992) (defense of self-defense raised where defendant testified that he pushed alleged victim because she was about to hit him); Facison v. State, 152 Ga. App. 645 (263 SE2d 523) (1979) (defense of self-defense raised where alleged victim threatened defendant with physical harm and reached into his pocket as though he were getting a gun).


author: Eldridge, Judge.

text:
    A02A0506.
    MOBLEY v. WRIGHT.
    (559 SE2d 78)
   Eldridge, Judge.

Plaintiff Louise Mobley, an elderly person, appeals from the judgment for defendant Eva Wright after a jury trial. The plaintiff objected to a jury charge on pre-existing injury, to removing a juror prior to the commencement of deliberations, and to the court’s written response to a written jury question. Finding no error, we affirm.

On October 6, 1998, the defendant exited a shopping center parking lot and drove into the passenger side of the plaintiff’s car as plaintiff drove down Church Street after also turning into the street from another parallel parking lot. Plaintiff received a fractured sternum in the collision. However, this elderly plaintiff contended that the collision was detrimental to her caring for herself and independent living. Plaintiff’s physician testified that the injury shortened her independent living by as much as two years.

1. Plaintiff contends that the trial court erred in failing to properly instruct the jury on the law with regard to damages attributable to the aggravation of natural or pre-existing conditions. We do not find error.

The charge objected to was not a charge on aggravation of a preexisting injury at all but was a general charge on pain and suffering that stated recovery for pain and suffering could be only for injuries tortiously caused. The trial court gave the complete pattern jury instructions on pre-existing injury and the aggravation of a preexisting injury.

I would also take exception to what I’ve got marked as No. 20, which is the pain and suffering charge, the sentence that we added which reads: “The plaintiff may not recover for infirmities which are not the natural causes or which existed before the accident at issue.” I would submit that that’s confusing and it tends to lead them to think that even an aggravation of a natural, physical condition is improper.

Following the exception to the charge on pain and suffering, the trial court gave the pattern jury charge on the aggravation of a prior existing condition, which completely and adequately set forth the applicable law for the jury. See generally Bennett v. Jones, 218 Ga. App. 714, 715-716 (2) (463 SE2d 158) (1995). Taken as a whole, the charge was neither ambiguous, misleading, or incorrect. Pittman v. State, 273 Ga. 849, 850 (4) (546 SE2d 277) (2001).

More importantly, where the verdict was for the defendant, any error in the charge on damages is harmless and cannot be a basis for a grant of a new trial. Luke v. Spicer, 194 Ga. App. 183, 184 (4) (390 SE2d 267) (1990).

The well established rule is that where the court incorrectly instructs the jury as to the measure of damages to be applied, if the jury exonerates the defendant so that the consideration of the measure of damages is eliminated from the case, the instructions given, even if erroneous, cannot be held to prejudice the plaintiff’s cause.

(Citations and punctuation omitted.) Minter v. Leary, 181 Ga. App. 801 (1) (354 SE2d 185) (1987).

2. Plaintiff contends that the trial court erred in improperly responding in writing to a written question from the jury after the close of evidence and prior to deliberations: “Can we see an accident report? Particularly, can we consider the question of whether or not Mrs. Mobley was wearing a seatbelt and if she was not, would this be considered negligence on her part?”

The trial court discussed the written response that the court would make to these questions with counsel prior to sending the response to the jury. The written response was, “no”; “you have all the evidence that is admissible in this case and cannot consider any other information.” The plaintiff wanted a “no” to both questions. The trial court stated that to give a simple “no” answer could be construed as a comment on the evidence presented in the case by the jury. OCGA § 9-10-7.

“[Q]ualified jurors under oath are presumed to follow the trial court’s instructions.” Smith v. State, 267 Ga. 372, 374 (3) (477 SE2d 827) (1996) (evidence introduced for a limited purpose under limiting instructions from the court); see also Gomillion v. State, 236 Ga. App. 14, 19 (3) (d) (512 SE2d 640) (1999) (jury instructed not to consider indictment as evidence so that erroneously circled guilty on the indictment did not influence jury). Thus, the jury is presumed to have followed the trial court’s instructions that they could consider only admitted evidence and could not consider other information, which is a correct statement of the law. See generally Wade v. State, 197 Ga. App. 464, 465 (1) (398 SE2d 728) (1990). Therefore, in following the court’s instructions, the jury would not have considered the issue raised in the questions.

3. The plaintiff contends that the trial court erred in dismissing a juror, without cause, at the close of the case but prior to the commencement of deliberations. We find no reversible error.

The juror, excused voluntarily, brought to the attention of the court and counsel that she knew plaintiff’s psychiatrist and that knowledge could influence her impartiality. She stated: “I believe I may need to be disqualified from the jury as I think I know the psychiatrist and his billing method for his patients.” The juror was never questioned about her written communication either by the attorneys or the trial judge prior to being excused. The trial judge stated a number of reasons that the juror should be excused for lack of impartiality to the plaintiff. Nonetheless, the plaintiff objected to the removal of such juror but made no record that the juror could be fair and impartial to both sides if she was allowed to remain on the jury. Thus, out of an abundance of caution, the trial judge excused the juror to preserve the jury’s impartiality as well as the appearance of fairness and impartiality.

An alternate juror can replace a juror for death, illness, and good cause that prevents the juror from performing his or her duty, or other legal cause. OCGA § 15-12-172. Thus, the trial judge has a broad discretion in regard to excusing a juror from the panel and substituting an alternate. Pinkins v. State, 243 Ga. App. 737, 741 (3) (534 SE2d 192) (2000) (juror excused because she contacted during trial her friend, another assistant district attorney who was not trying the case); Remine v. State, 203 Ga. App. 30, 32 (5) (416 SE2d 326) (1992) (two jurors were excused because of hardship of service); Baptiste v. State, 190 Ga. App. 451, 453 (2) (379 SE2d 165) (1989) (juror became sick). A juror can even be replaced for being late to court. Herring v. State, 224 Ga. App. 809, 810-812 (1) (481 SE2d 842) (1997).

Where the juror appears partial to one side or the other or through voir dire demonstrates a lack of impartiality, such constitutes good cause for the judge in his discretion to remove the juror to preserve the integrity of an impartial and fair jury trial and serve thereby the ends of justice. Having been briefly represented by defense counsel is a legitimate ground for removal of a juror. Payne v. State, 195 Ga. App. 523, 524 (1) (394 SE2d 781) (1990). The juror’s acquaintance with the defendant or victim is a good cause for replacement. Miller v. State, 261 Ga. 679, 680 (6) (410 SE2d 101) (1991); Ganas v. State, 245 Ga. App. 645, 648 (3) (537 SE2d 758) (2000); Darden v. State, 212 Ga. App. 345, 347 (4) (441 SE2d 816) (1994). Acquaintance with a party’s family is a ground for removal. Reynolds v. State, 271 Ga. 174, 175 (2) (517 SE2d 51) (1999). Thus, where the trial judge in a civil case believes that the juror cannot be fair and impartial to both sides from the juror’s voluntary statement and belief in his or her own lack of impartiality, it is within the sound discretion of the trial judge to sua sponte remove the juror over objection of counsel.

Decided January 16, 2002.

Fortson, Bentley & Griffin, John B. Parker, for appellant.

Bridges, Ormand & Faenza, Alvin L. Bridges, Jr., for appellee.

Judgment affirmed.

Smith, R J., and Ellington, J., concur.


text:
    A02A0545.
    ANDERSON v. THE STATE.
    (559 SE2d 85)
   Phipps, Judge.

At a bench trial, Walter Anderson was convicted of possession of cocaine. He appeals, challenging the trial court’s denial of his motion to suppress. Although the cocaine was seized during a consent search, he contends that his consent was tainted because he was being detained illegally. Finding Anderson’s detention legal, we affirm.

On August 29, 2000, City of Jonesboro Police Officer Thomas stopped a car operated by Anderson. He made the stop because the car bore a dealer’s drive-out tag without an expiration date in violation of state law. After Anderson produced documentation showing that the temporary tag had not expired, Thomas ran a check on Anderson’s license and was advised by the radio dispatcher that the license had been suspended because of three drug convictions. As a result, Thomas arrested Anderson, who thereupon gave his consent to a search of the car. After cocaine was found during the search, Thomas was informed by the radio dispatcher that information had been overlooked which showed that Anderson had been given a probationary driver’s license after his permanent license was suspended.

The determinative issue on the question of whether Anderson’s detention was legal is whether there was probable cause for his arrest. In ascertaining whether there exists probable cause for an arrest, the arresting officer may be entitled to rely on information received by radio dispatch or provided by other officers even if the information later proves incorrect. “The material inquiry is whether the facts within the officer’s knowledge at the time of the arrest constituted reasonably trustworthy information which was sufficient to authorize a prudent person to believe that [the suspect] had committed an offense. [Cit.]” The evidence supports a finding that the radio dispatch received by Thomas, although erroneous, was “reliable enough to underlie the reasonable belief which is needed to establish probable cause for arrest.”

Decided January 16, 2002.

Sexton & Morris, Ricky W. Morris, Jr., Joseph S. Key, for appellant.

Robert E. Keller, District Attorney, Staci L. Guest, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews, P. J., and Mikell, J., concur.

       See Cunningham v. State, 231 Ga. App. 420, 422 (1) (498 SE2d 590) (1998), citing Harvey v. State, 266 Ga. 671 (469 SE2d 176) (1996).

        Harvey v. State, supra at 673.

       (Citations and punctuation omitted.) Id.


author: Blackburn, Chief Judge.

text:
    A01A2141.
    JORDAN v. BOARD OF PUBLIC SAFETY.
    (559 SE2d 94)
   Blackburn, Chief Judge.

When the Georgia Board of Public Safety (“Board”) terminated his employment as superintendent of the Georgia Police Academy, Bennett A. Jordan sued the Board and others for, inter alia, intentional infliction of emotional distress. After Jordan obtained a $1 million judgment against the Board, the Board successfully appealed that judgment. Bd. of Public Safety v. Jordan. In this cross-appeal, Jordan contends that the trial court erred in determining that he was collaterally estopped from litigating the findings of fact entered by an administrative hearing officer, findings that were subsequently embraced by the Board. Jordan also claims that the trial court erred by granting the Board’s motion to dismiss his claim for “a violation of his substantive due process rights based upon a liberty interest in his reputation.” After review of both issues and finding them lacking in merit, we affirm.

1. Jordan contends that the trial court misapplied and misconstrued the doctrine of collateral estoppel. He claims that the trial court erred in concluding that he was barred from litigating the reasons for his discharge because the same issues were not adjudicated at the administrative hearing since that hearing was limited to the eight charges lodged against him. He asserts that “[t]he Board put forth its fabricated reasons for terminating [him], selected a hearing officer, received a Recommended Decision from that hand-picked hearing officer, and then had the option of rejecting or adopting the hearing officer’s Recommended Decision, as it suited them.” In essence, Jordan asserts that he was denied independent review of his termination. He claims that after the trial court decided he was collaterally estopped from relitigating the hearing officer’s findings of facts, he was forbidden by the trial court from asserting his innocence or uttering any refutation or challenge with regard to the charges raised against him by the Board.

The trial court entered a complex ruling as to the preclusive effect of the administrative findings. The trial court ruled that the parties were precluded from relitigating those matters contained in the hearing officer’s findings of fact because Jordan had been afforded “a full and fair opportunity to litigate those matters” and therefore, under the doctrine of collateral estoppel, those findings were “binding and conclusive.” The trial court deemed the findings of fact “to be the equivalent of what would be an evidentiary stipulation.” The trial court, however, refused to accord similar treatment to the conclusions of law contained in the hearing officer’s recommended decision and adopted by the Board. The trial court observed,

while it is clear that the specific findings were, in fact, fully and completely litigated and factual determinations were made with respect to those findings, the conclusions of law, it is not clear to this court that Mr. Jordan was provided an opportunity to present what, in effect, was the defense that assuming everything they said is true, it really isn’t why they are firing me; that was pretextual. There is no ruling in Mr. Goldstein’s order which was adopted by the Board which reflects that he resolved that issue; that that issue was, in fact, presented to him.

“The doctrine of collateral estoppel precludes the readjudication of an issue of law or fact already adjudicated between the parties or their privies, where that issue is essential to the judgment.” (Punctuation omitted.) Edmondson v. Gilmore.

Like res judicata, collateral estoppel requires the identity of the parties or their privies in both actions. However, unlike res judicata, collateral estoppel does not require identity of the claim — so long as the issue was determined in the previous action and there is identity of the parties, that issue may not be re-litigated, even as part of a different claim.

Gwinnett County Bd. of Tax Assessors v. Gen. Elec. Capital Computer Sues.

Here, the parties were the same in both actions. The charges that formed the basis for the Board’s decision to terminate his employment were adjudicated at the administrative hearing. In fact, when Jordan was asked at trial, “Did you at that hearing contest or challenge the allegations that were against you?” Jordan responded, “I challenged each charge and produced the facts showing that they were wrong.” The 27-page recommended decision issued by the hearing officer shows that the allegations were fully litigated. Although Jordan claims that he was not allowed to argue that the Board’s reasons were pretextual, the transcript of the administrative proceeding belies that claim. Jordan tried to persuade the hearing officer that the Board had “an underlying motive” and the case involved “two levels of motive.” He argued that he was being terminated as part of a reorganization plan. In these circumstances, the trial court correctly ruled that Jordan could not relitigate the factual basis for his termination. See Swain v. State.

Moreover, despite Jordan’s claim that during the trial, he was barred from denying the charges or from submitting evidence to controvert the charges, the trial transcript shows otherwise. Often over objection, Jordan was permitted to refute the specific charges in apparent contradiction to the factual findings of the hearing officer, including those relating to the IBM loaner program, the training at Jekyll Island, the staff retreat at Unicoi State Park, the competency of his deputy, and his use of fiscal restraint as to budgetary matters. Again and again, Jordan’s trial testimony was directed at refuting or contradicting the specific factual findings entered by the hearing officer on each charge. At trial, Jordan offered evidence that his termination had been politically motivated to facilitate a reorganization plan and that his discharge had not been the result of any actual deficiencies or shortcomings on his part. Jordan was allowed to testify that in his 32 years of accredited service he had never had any negative employment action taken against him before 1991. Jordan testified that before the letter from the Board in 1991, he had never received any notification of any job performance deficiency from the Board and was not provided any opportunity to correct any purported deficiency. Jordan further complained that he was never told that he could not attend the conference for the International Association of Chiefs of Police. Jordan testified that others who participated in training were not similarly disciplined. Thus, notwithstanding the trial court’s ruling that the factual findings of the hearing officer could not be attacked, Jordan apparently was permitted to circumvent that ruling and was allowed to offer evidence or to elicit testimony to show that his discharge had, in fact, been politically motivated and was not attributable to the eight charges brought against him by the Board that were found to be grounded in fact by the hearing officer.

When collateral estoppel applies, as here, an issue previously litigated and adjudicated on the merits cannot be relitigated even as part of a different cause of action. See Langton v. Dept. of Corrections. Further, “questions of fact once ruled upon by an administrative body, such as the State Board of Workers’ Compensation, are thereafter precluded from relitigation by the doctrines of res judicata and estoppel by judgment.” Blackwell v. Ga. Real Estate Comm. Therefore, Jordan was foreclosed from relitigating the findings of fact issued by the hearing officer and adopted by the Board. See Swain v. State, supra.

2. Jordan contends that the trial court erred in dismissing what he describes as “a violation of his substantive due process rights based upon a liberty interest in his reputation.” He claims that the trial court erred in dismissing his claim that the Board and its former vice chairman, Robert Wilson, deprived him of a constitutionally protected liberty interest.

By couching his claim as “substantive” and derived from a “liberty interest,” Jordan seeks to circumvent the holding of McKinney v. Pate that precludes asserting a claim for a violation of a property interest in one’s reputation. Nomenclature notwithstanding, the substance of a claim must be considered, and a party cannot do indirectly what the law does not allow to be done directly. Kingsmill Village Condo. Assn. v. Homebanc Fed. Sav. Bank.

In McKinney v. Pate, the court held that:

areas in which substantive rights are created only by state law (as is the case with tort law and employment law) are not subject to substantive due process protection under the Due Process Clause because “substantive due process rights are created only by the Constitution.” [Cit.] As a result, these state law based rights constitutionally may be rescinded so long as the elements of procedural — not substantive — due process are observed.

Id. at 1556 (II) (A) (1). McKinney expressly found that “an allegation of pretextual firing implicates only procedural due process concerns, and does not state a substantive due process claim.” Narey v. Dean. The legal principle derived from McKinney and its progeny may be stated as follows:

although damage to reputation, standing alone, does not provide a basis for an action under 42 USC § 1983 — when reputational damage is sustained in connection with a termination of employment, it may give rise to a procedural due process claim for deprivation of liberty which is actionable under section 1983.

Cotton v. Jackson.

Here, Jordan’s procedural due process rights were adequately protected since he had notice of the administrative hearing and an opportunity to respond to the charges. The administrative hearing consumed three days and resulted in a transcript in excess of 655 pages not including exhibits. Jordan availed himself of counsel at the hearing and was allowed to call witnesses and to cross-examine the Board’s, but for reasons unclear from the record, he opted not to seek judicial review of the administrative decision as authorized by OCGA § 47-2-3. After failing to avail himself of judicial review of that decision, Jordan became foreclosed from asserting that his right to due process was denied. See Cotton v. Jackson, supra at 1331. By not taking advantage of the opportunity for state court review, Jordan could not later complain that the State deprived him of procedural due process. Narey v. Dean, supra at 1528. Therefore, the trial court did not err in granting the motion to dismiss.

Decided January 17, 2002

Weinstock & Scavo, Michael Weinstock, Richard J. Capriola, Jet Harris, for appellant.

Thurbert E. Baker, Attorney General, Gray, Hedrick & Edenfield, Bruce M. Edenfield, Evan R. Mermelstein, for appellee.

Citing Doe v. Garrett, Jordan also asserts that “[a] liberty interest in one’s reputation or ability to gain future employment is sufficiently stated where a government employee is discharged or terminated on the basis of false and stigmatizing reasons and those reasons are publicized by the governmental employer.” But a “critical element” of such a claim is the falsity of the government’s asserted basis for its employment decision. Id. at 1463. But here, the factual findings made by the hearing officer that supported and documented each charge were admitted in evidence at trial as “binding and conclusive” and cannot now be considered false. Even if the Board had other reasons that were arbitrary, capricious, or pretextual for terminating Jordan’s employment, a substantive due process claim was not thereby created. See McKinney v. Pate, supra at 1562-1565.

Judgment affirmed.

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

        Bd. of Public Safety v. Jordan, 252 Ga. App. 577 (556 SE2d 837) (2001).

       Although Jordan also contends that the Board waived this defense by failing to timely raise it, the record shows that the Board asserted the collateral estoppel argument well before trial.

        Edmondson v. Gilmore, 251 Ga. App. 776, 778 (1) (554 SE2d 742) (2001).

        Gwinnett County Bd. of Tax Assessors v. Gen. Elec. Capital Computer Svcs., 273 Ga. 175, 178 (1) (538 SE2d 746) (2000).

        Swain v. State, 251 Ga. App. 110, 113 (1) (552 SE2d 880) (2001).

        Langton a Dept. of Corrections, 220 Ga. App. 445, 446 (1) (469 SE2d 509) (1996).

        Blackwell v. Ga. Real Estate Comm., 205 Ga. App. 233, 234 (421 SE2d 716) (1992).

       The Board argued that
      Plaintiff’s termination has already been fully and completely litigated and a decision upholding the termination ‘Tor cause” was rendered by the hearing officer on January 8, 1992, subsequently adoptéd by Defendant on February 5,1992, affirmed by the Employee’s Retirement Board on April 6, 1992, and affirmed by the State Personnel Board on August 17, 1992, and not appealed by Plaintiff.

      (Emphasis in original.)

       Neither the Board nor Wilson in his official capacity is a “person” subject to a claim for damages under 42 USC § 1983. Jenkins v. Dept. of Corrections, 238 Ga. App. 336, 341 (3) (518 SE2d 730) (1999). Wilson, however, was sued individually as well as in his official capacity.

        McKinney v. Pate, 20 F3d 1550 (11th Cir. 1994).

        Kingsmill Village Condo. Assn. v. Homebanc Fed. Sav. Bank, 204 Ga. App. 900, 902 (2) (a) (420 SE2d 771) (1992).

        Narey v. Dean, 32 F3d 1521, 1526 (II) (C) (11th Cir. 1994).

        Cotton v. Jackson, 216 F3d 1328, 1330 (11th Cir. 2000).

       Jordan testified that he did not file an appeal of what he described as a “corrupt hearing” because he was convinced that a judge “would just rubber stamp the Board.”

        Doe v. Garrett, 903 F2d 1455, 1462-1463 (11th Cir. 1990).


author: Smith, Presiding Judge.

text:
    A01A2418.
    HUMPHREYS v. THE STATE.
    (559 SE2d 99)
   Smith, Presiding Judge.

Samuel David Humphreys was convicted by a jury on charges of child molestation (OCGA § 16-6-4), enticing a child for indecent purposes (OCGA § 16-6-5), kidnapping (OCGA § 16-5-40), and possession of a firearm during the commission of a crime (OCGA § 16-11-106). He argues that the evidence was insufficient to support the verdicts. We do not agree.

The 13-year-old victim testified that while he was walking toward a friend’s house, Humphreys stopped his vehicle, a Jeep Wagoneer, beside the victim. Humphreys reached across and opened the passenger side door and asked the victim if he wanted a ride. The victim, with one hand on the door and the other on the passenger seat, replied that he did not want a ride. Humphreys said, “ ‘No, I’ll take you,’ ” and “yanked” him into the car. While driving with the victim, Humphreys asked him if he had a girlfriend and if he had ever had sex. Humphreys also asked if he had “ever been felt on.” The victim understood this latter question to be whether anyone had played with his “private parts” or penis. Humphreys told him, “ “You should try it sometimes.’ ” The victim once tried to get out of the car at a stop sign, but Humphreys “took off.” Humphreys eventually stopped the car on a dirt road and parked in a wooded area. He then rubbed the victim’s leg in the thigh or groin area and said, “ ‘Let me play with your thing,’ ” which the victim understood to be his penis.

The victim pushed Humphreys’s hand away, jumped out of the vehicle, ran into a nearby business, and hysterically told an employee that a man with a gun had touched his crotch and wanted to “ ‘play with my thing.’ ” At some point before he touched the victim, Humphreys had opened his door and looked underneath the car, stating that the car was “running hot.” At that time, the victim “looked up under the seat” and saw a firearm. He testified that he saw only the handle, which was brown. During the trial, he was shown State’s Exhibit 6, a gun taken from Humphreys’s vehicle several days later, and the victim testified that the exhibit was similar to the gun Humphreys had under his seat. After the vehicle was located by the police, the victim viewed it and unequivocally identified it as the one Humphreys had been driving. The victim also had no hesitation in choosing Humphreys as his assailant during a pre-trial photographic lineup.

Humphreys contends, in general, that the evidence presented at trial was insufficient to support the verdict. His only specific argument, however, relates to the firearm charge. He maintains that the State failed to prove that the gun was “within arm’s reach,” as required by the indictment. On appeal from a criminal conviction, a defendant cannot rely on the presumption of innocence, and we do not weigh evidence or judge the credibility of the witnesses. We construe the evidence in favor of the verdict and determine only whether the evidence was sufficient to enable a rational trier of fact to find the defendant guilty of the crimes charged beyond a reasonable doubt. Kinney v. State, 234 Ga. App. 733, 734-735 (1) (506 SE2d 441) (1998). Under this standard, we conclude that ample evidence was presented through the victim’s testimony to authorize the jury to conclude that Humphreys was guilty of all of the crimes charged against him, see Johnson v. State, 231 Ga. App. 823 (1) (499 SE2d 145) (1998) (victim’s testimony sufficient to enable jury to convict defendant), including the firearm charge.

Decided January 17, 2002.

Alfred F. Zachry, for appellant.

Peter J. Skandalakis, District Attorney, Nigel R. Lush, Assistant District Attorney, for appellee.

Humphreys’s possession of the firearm was established by his dominion over his vehicle, and the “final element” of this crime required proof only that he was “even momentarily within arm’s reach of the gun.” Gibson v. State, 223 Ga. App. 103 (1) (476 SE2d 863) (1996). With regard to this element, the jury could consider the size of the vehicle, which it viewed during the trial, and the fact that Humphreys was able to reach both the passenger’s side door and the victim’s groin area from the driver’s side. From these facts, the jury could infer the necessary “juxtaposition” between Humphreys and the gun at sometime during the commission of the crimes. Id. See generally James v. State, 238 Ga. App. 552, 553 (519 SE2d 478) (1999) (contraband found underneath passenger’s seat within arm’s reach of driver’s side).

Judgment affirmed.

Barnes and Phipps, JJ, concur.


text:
    A01A2444.
    In the Interest of D. W. A. et al., children.
    (559 SE2d 100)
   Smith, Presiding Judge.

The mother of D. W. A., J. W. A., K. D. A., and H. W. A. appeals from the order of the Floyd County Juvenile Court terminating her parental rights in the children. In her sole enumeration of error, she contends that insufficient evidence was presented to support the termination of her rights. We do not agree and affirm.

The decision to terminate parental rights is a two-step process. The juvenile court must first determine whether clear and convincing evidence exists of parental misconduct or inability. If such evidence exists, the court then considers whether termination of the parent’s rights is in the best interests of the children, after considering the physical, mental, emotional, and moral condition and needs of the children who are the subject of the proceeding, including their need for a secure and stable home. OCGA § 15-11-94 (a).

Parental misconduct or inability is demonstrated by showing that the criteria listed in OCGA § 15-11-94 (b) (4) (A) have been met. These criteria are: (i) that the children are deprived; (ii) that lack of proper parental care or control is the cause of the children’s deprivation; (iii) that this cause of the children’s deprivation is likely to continue or will not likely be remedied; and (iv) that the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the children. Id. These same factors may also support a finding that terminating the parent’s rights is in the children’s best interests. In the Interest of C. N. H., 238 Ga. App. 50, 53-54 (2) (517 SE2d 589) (1999). When this court reviews a decision terminating parental rights, we view the evidence in a light most favorable to the appellee. In the Interest of A. M. V., 222 Ga. App. 528, 529 (474 SE2d 723) (1996). The standard of review on appeal is whether, viewing the evidence in this light, a rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights should be terminated. We are bound to defer to the trial court’s findings of fact and to affirm unless this standard is not met. In the Interest of J O. L., 235 Ga. App. 856 (510 SE2d 613) (1998).

The record shows that in this case all four factors were met. The Floyd County Department of Family & Children Services (DFACS) became involved with these children, twin boys and two girls, in 1996. In May 1998, the mother informed a caseworker that she could no longer care for her children. A “safety plan” was initiated, under which the mother agreed to telephone 911 if she felt she was about to lose control of her anger around the children. The mother called 911 on May 26, 1998, requesting that the police come and get her children because she was afraid she would hurt them if left with her. When the police arrived, they found that the mother had knocked two holes in the wall, and the youngest child was in need of medical care.

On June 2, 1998, DFACS filed a deprivation petition. After a hearing, the juvenile court entered an order finding the children deprived. The children were placed in DFACS’s temporary legal custody. On June 10, 1998, the two girls were returned to the mother’s physical custody. Subsequently, the mother and the girls began living with her boyfriend in government-subsidized housing. Domestic violence occurred, and the boyfriend was arrested on drug charges. The family was evicted from their home. The two girls were again removed from the mother’s custody, and the juvenile court entered a protective order and later ordered the boyfriend to comply with a case plan.

A reunification plan was adopted, under which the mother was required to cooperate with DFACS, maintain a close connection with her children, attend parenting skills classes, attend individual and family therapy sessions with the boys, maintain a safe and stable home with room for all her children, obtain her GED, seek employment, and provide adequate supervision for the children at all times. DFACS’s temporary legal custody was extended by written orders. The mother, however, failed to comply with her case plan goals, and DFACS then filed a petition to terminate her parental rights. After conducting hearings, during which ten witnesses testified, including the mother, the juvenile court entered written orders terminating the parental rights of the mother and all putative fathers.

The juvenile court’s order finding the children deprived was not appealed. The mother is therefore bound by the juvenile court’s determination of deprivation. See In the Interest of J. S. G., 242 Ga. App. 387, 388 (1) (529 SE2d 141) (2000). The fact that this deprivation was caused by lack of parental care or control was shown clearly. In cases in which children are not in the parent’s custody, in determining whether the children are without proper parental care or control, a juvenile court is to consider the factors enumerated in OCGA § 15-11-94 (b) (4) (C) (i) through (iii). Here, the evidence presented at the termination hearing established that the mother did not provide for the children’s care or support or comply with her case plan goals. Although she received over $5,000 in an insurance settlement, she paid no child support for the children while they were in the temporary legal custody of DFACS. The mother did not cooperate with parent aides or maintain consistent contact with personnel assigned to her case. She did complete parenting classes, but she failed to follow through with either individual therapy or family therapy with the boys, missing many of the appointments. She also missed scheduled visitations with the children and often provided no excuse. She did not obtain her GED or stable employment. She did not obtain a safe and stable home for herself and her children. She continued to reside with the boyfriend who had been abusive to her and the children, who had been arrested on drug charges, and who refused to comply with the case plan prepared for him. The second factor was therefore satisfied.

It is well established that in determining whether the cause of the children’s deprivation is likely to continue, the juvenile court may look at the past actions of the parent. In the Interest of D. S., 247 Ga. App. 569, 573 (545 SE2d 1) (2001). This inference is appropriate, because the juvenile court is not required to reunite the children with the mother to obtain current evidence regarding deprivation. Id. See also In the Interest of E. C., 225 Ga. App. 12, 16 (482 SE2d 522) (1997). Given the mother’s failure to complete the goals of her case plan, the juvenile court was authorized to find that the children’s deprivation would likely continue if reunited with their mother. Id. This is further borne out by evidence that the girls were returned to their mother once, only for DFACS to be forced to remove them again because of the presence of the mother’s boyfriend.

Decided January 17, 2002.

William H. Newton III, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Assistant Attorney General, Holly A. Bradfield, for appellee.

Further, a licensed psychologist testified at the hearing that she had evaluated the boys and that they had extensive psychological problems and special needs. They were diagnosed with AD/HD hyperactivity and oppositional defiant disorder. This witness testified that if the boys were to be returned to a caretaker such as their mother, their disorders would increase in severity. The twins’ foster mother testified that they were doing well, but that their behavior regressed when they returned from visits with their mother. The boys also reported that they had been abused during an unsupervised visit with their mother, and DFACS verified these allegations. This evidence supports the juvenile court’s finding that continued deprivation would cause great harm to the children and that terminating the mother’s rights was in their best interests. It is abundantly clear that sufficient evidence was presented to authorize a rational trier of fact to find that the mother’s rights have been lost.

Judgment affirmed.

Barnes and Phipps, JJ, concur.

       The petition also sought to terminate the parental rights of the putative fathers of all four children. K. D. A.’s father voluntarily surrendered his rights. None of the fathers is involved in this appeal.


author: Mikell, Judge.

text:
    A01A2506. A01A2507.
    GLAZE v. THE STATE. HANEY v. THE STATE.
    (559 SE2d 90)
   Mikell, Judge.

Thomas Ray Glaze and Calvin Daniel Haney II were charged with burglary, kidnapping, false imprisonment, battery, and simple battery. The cases were tried together, and a Bartow County jury convicted Glaze of burglary, kidnapping, battery, and simple battery and Haney of burglary, false imprisonment, battery, and simple battery. On appeal, Glaze challenges the sufficiency of the evidence with respect to each of his convictions, while Haney asserts as error the trial court’s denial of his motion for mistrial and his motion for directed verdict as to his burglary charge. We affirm.

On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. An appellate court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses.

Construed most favorably toward the verdict, the evidence shows that Karen McCollum, former girlfriend of defendant Glaze, stayed with Sean Godfrey at his mobile home on the evening of August 22, 2000. McCollum testified that she was awakened after 10:00 p.m. when she heard someone enter the house and another person step onto the front porch. Shortly thereafter, Glaze, whom McCollum refers to as “Bubba,” opened the door to the bedroom, where she and Godfrey were in bed.

McCollum and Godfrey testified that Glaze attacked them. As McCollum tried to escape, defendant Haney, who was standing in the doorway, pushed her back into the bedroom, causing her to fall. As Glaze started to hit McCollum again, Godfrey dove out of the window. When asked about her injuries, McCollum testified that her face was swollen and that she had bruises and knots on her body.

Godfrey testified that after escaping through the window, he went to the home of his neighbor, Ed Norris. Norris testified that Godfrey trailed blood on Norris’s porch and in his house. Norris contacted the police, but before they arrived, he saw Glaze drag McCollum out of Godfrey’s trailer by her hair and her arm and then beat her. Godfrey also testified that he saw Haney and Glaze drag McCollum by her hair from his house to their vehicle and drive off.

Glaze testified that he planned to plead guilty for battering Godfrey, but Glaze denied that he hit McCollum. He also testified that McCollum wanted to leave with him and Haney. He could not say, however, that he did not touch McCollum as she entered the car.

Case No. A01A2506

As stated earlier, Glaze was convicted of burglary, kidnapping, battery, and simple battery. In his sole enumeration of error, he argues that the evidence was insufficient as to each conviction. We disagree.

OCGA § 16-7-1 (a) provides, in relevant part, “A person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another.” Glaze argues that the state did not prove that he entered the house without authority. He contends that the residence belonged to Robert Weatherford and was never locked because it was considered a local hangout. Conversely, the evidence showed that Godfrey and Weatherford rented the residence from Godfrey’s mother, who was the manager of the mobile home park. Godfrey testified that he did not give Glaze permission to enter his home. Other than Glaze’s testimony, there was no evidence to support his position that Weatherford gave him permission to enter the home. Because “the testimony of a boarder or renter is sufficient to prove lack of authority or permission to enter a dwelling place,” any rational trier of fact could have concluded that Glaze entered the premises without consent.

Glaze also argues that there is no evidence that he intended to commit a theft or felony when he entered the residence. Glaze testified, however, that he and Haney went into the house to look for someone to “front” them either cocaine or methamphetamine, which they would pay for on the following Friday. Purchasing a controlled substance such as cocaine is a felony. The fact that the felony was not completed does not render the evidence of Glaze’s intent insufficient. Accordingly, the evidence was sufficient to authorize Glaze’s burglary conviction.

Glaze contends that the evidence was insufficient on the kidnapping, battery, and simple battery charges as well. Again, we disagree. “A person commits the offense of kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such person against his will.” There was evidence in the record that Glaze kidnapped McCollum.

Glaze was charged with committing battery and simple battery against McCollum. A person commits simple battery when he or she intentionally causes physical harm to another. Battery involves intentionally causing substantial physical harm or visible bodily harm to another. Based on McCollum’s, Godfrey’s, and Norris’s testimony, any rational trier of fact could have found Glaze guilty beyond a reasonable doubt of kidnapping, battery, and simple battery. Accordingly, we affirm Glaze’s convictions.

Case No. A01A2507

1. In his first enumeration of error, Haney contends that the trial court erred in denying his motion for a mistrial because the state read a portion of an inadmissible and prejudicial letter to the jury. We disagree.

The trial court’s ruling on [a] motion for mistrial will not be disturbed on appeal absent an abuse of discretion, which does not exist if the curative instructions given can serve to prevent the alleged harmful testimony from having any prejudicial impact and/or the jury indicates that it can follow the instructions and will not consider any improper prejudicial statements or testimony.

During the direct examination of Belinda Spurgeon, who was Glaze’s girlfriend at the time of the incident, the state read the statement, “I will always love you,” from a letter that Glaze wrote to McCollum in January 2001. The prosecutor then asked Spurgeon, “Did you know he’s writing letters to Karen telling her how much he loves her and he didn’t mean to do these things to her?” Haney objected. The trial court sustained Haney’s objection to the letter and gave the jury the following curative instruction:

The letter was not written to this witness, and I would instruct you to disregard anything contained in this letter that has just been — a portion of which has been read. Is there any member of the jury who feels like they cannot follow that instruction and disregard that letter? If you don’t feel that you can disregard it, raise your hand and let me know.

None of the jurors raised their hands.

Haney then moved for a mistrial, arguing that the manner in which the state used the letter caused the jury to believe that Glaze agreed with McCollum’s version of the incident, which he contends prejudiced his defense. The trial court denied the motion, stating that it did not see how the state’s references to the letter prejudiced Haney. We agree and find that in light of the trial court’s curative instructions and the jury’s indication that it could follow those instructions, the trial court did not abuse its discretion in denying Haney’s motion for mistrial.

Decided January 17, 2002.

Perotta & Cahn, Kelley A. Dial, for appellant (case no. A01A2506).

Joshua D. Earwood, for appellant (case no. A01A2507).

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

2. In his remaining enumeration of error, Haney argues that the trial court erred by denying his motion for directed verdict as to the burglary charge because there was no evidence that he lacked permission to enter the premises. “On appeal, the standard of review for denial of a motion for directed verdict is the same as that for determining the sufficiency of the evidence to support a conviction.”

Glaze raised this same argument in Case No. A01A2506. As the evidence against Haney is the same as that against Glaze, i.e., Godfrey did not give either of them permission to enter the house, we similarly conclude that any rational trier of fact could have found Haney guilty of burglary beyond a reasonable doubt.

Judgment affirmed.

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

       (Citations and punctuation omitted.) James v. State, 227 Ga. App. 907, 908 (1) (490 SE2d 556) (1997).

        Black v. State, 143 Ga. App. 690, 691 (239 SE2d 564) (1977).

       OCGA § 16-13-30 (e); see OCGA § 16-13-26 (1) (D).

        Johnson v. State, 262 Ga. 441, 442 (1) (421 SE2d 70) (1992).

       OCGA § 16-5-40 (a).

       OCGA § 16-5-23 (a) (2).

       OCGA § 16-5-23.1.

       (Citations and punctuation omitted.) Muzquiz v. State, 260 Ga. 547, 548 (5) (b) (397 SE2d 703) (1990).

       Id.

       (Punctuation and footnote omitted.) Mathis v. State, 250 Ga. App. 500 (552 SE2d 97) (2001).


text:
    A02A0638, A02A0639.
    McCARROLL v. THE STATE (two cases).
    (559 SE2d 87)
   Eldridge, Judge.

A Gwinnett Coxmty jury found Kinshante McCarroll guilty of two counts of armed robbery and two counts of possession of a firearm during the commission of a felony; these charges arose when, armed with a pistol, McCarroll and a co-defendant, Donny Lavon Davis, robbed a Conoco convenience store and, several days later, robbed a Texaco convenience store. Separately, a second Gwinnett County jury found McCarroll guilty of two counts of aggravated assault arising from an incident wherein McCarroll and a co-defendant, Rodney Robinson, beat a man named Willie Lawrence about the head with a board and shot him with a handgun. Although unrelated, we consolidate these two cases for purposes of judicial economy and affirm McCarroll’s conviction on each.

1. Case No. A02A0638 (Two Counts of Armed Robbery and Two Counts of Possession of a Firearm During the Commission of a Crime).

In his sole enumeration of error, McCarroll contends the evidence was insufficient to support his conviction of the offenses as charged, primarily because the individual victims of the two armed robberies were unable to identify either McCarroll or his co-defendant, Davis, as the masked perpetrators of the robberies.

In an unpublished opinion, we affirmed the conviction of McCarroll’s co-defendant, Davis. In so doing, this Court thoroughly reviewed the facts of this case under the standard of Jackson v. Virginia and determined that a rational trier of fact could have found both McCarroll and Davis guilty beyond a reasonable doubt of the offenses for which they were convicted. Our second review of the facts only enhances the strength of this position, as evidence of McCarroll’s guilt is even stronger than that of Davis and includes a tape-recorded admission of guilt by McCarroll, as well as testimony from McCarroll’s girlfriend that he told her he committed both robberies with Davis. For purposes of this appeal, we cite in pertinent part the sufficiency of the evidence review contained in Division 1 of this Court’s unpublished opinion in Davis v. State and, in doing so, reaffirm its central holding.

Davis first challenges the sufficiency of the evidence. Construed in favor of the verdict, evidence was presented that two gas stations in Gwinnett County were robbed on March 3 and March 7, 1997. The first victim, who was Korean, testified through an interpreter. He testified that he owned a Conoco station on Beaver Ruin Road and that on the night of March 3, 1997, while he was counting money at the counter, two men dressed in black clothes and wearing black masks entered the station. One, who was carrying a gun, approached the counter, while the other stood near the door. The man with the gun jumped over the counter and took approximately $400. The two men left the store, and the owner called the police.
Evidence also was presented that on March 7, a Texaco station located on Satellite Boulevard was robbed. The robbery was captured on video by a video surveillance system. The tape was admitted into evidence over Davis’s objection, and one of the investigating officers described the events occurring on the tape, as it was played. He stated that one suspect entered the store and pointed a pistol at the clerk and then another suspect entered the store. One of the suspects pulled himself over the counter, pointed a pistol at the clerk, and took money from the register. The two men, dressed in dark clothes and wearing masks, then left the store.
Davis’s former girlfriend, Inderia Kelly, testified that Davis lived with her in her apartment in Doraville for about three weeks in March 1997. She stated that one night during that time, he and his friend [appellant] Kinshante McCarroll came into her apartment and told her they had just come “from hitting a lick at the Conoco.” She understood this to mean that they had robbed the Conoco. The two men began counting the money, and McCarroll complained that “it wasn’t enough money.” Kelly thought they had stolen approximately “a hundred-and-some-odd dollars.” She stated that both men were wearing all black. Kelly also testified that the two men planned to rob the Conoco again but were unable to do so because of “cop cars circling the area.” Kelly stated that she had previously seen McCarroll “sandpapering . . . down” a handgun and that Davis had once brought a handgun into her apartment.
McCarroll’s former girlfriend, Marie Hedger, testified as well. She stated that McCarroll moved in with her and her family a short time after they moved to Norcross in February 1997. According to Hedger, sometime after McCarroll moved in with her but before March 14, 1997[,] when a search warrant was executed in her home, he told her that he and Davis had robbed a Conoco. He described the clerk to her as “a Chinese man.” McCarroll told Hedger that they had “hit a. lick” and explained to her that this meant they had committed a robbery. He also told her that he and Davis had robbed a Texaco on Satellite Boulevard. According to Hedger, McConnell [sic] told her basically the same thing about both incidents — that Davis had held “the gun and that he had asked for the money.” Hedger stated that McCarroll was wearing black clothes on the evenings he went out with Davis. She also identified a large silver ring belonging to McCarroll. The investigating officer who described the videotape of the Texaco robbery stated that one of the suspects wore a large, silver ring and identified the ring in evidence as consistent with the ring he observed in the videotape. [In addition, descriptions from both the robbery victims established that the perpetrators wore black clothes, and a black hooded jacket consistent with that worn by one of the perpetrators was recovered from McCarroll’s residence.]
The same police sergeant investigated both robberies. Through the use of a microphone and a receiving device, on March 11, 1997, he listened to a conversation between McCarroll and his friend Tonya Pate. From a location about 100 [yards] away, he observed the two talking with one another. Among other things, they discussed the armed robberies. When asked by Pate whether he was worried about being caught, McCarroll responded that he had worn a mask and the only way he could get caught was if someone told on him. The officer testified that when Pate asked McCarroll particularly about the Conoco station robbery, he responded that “he robs who he wants to rob.” . . . Given the incriminating statements made by Davis and McCarroll, other testimony at trial corroborating the descriptions of the clothing worn by the perpetrators, as well as evidence concerning McCarroll’s taped conversation with Tonya Pate, we cannot agree with Davis that the State failed to meet its burden under the standard of Jackson v. Virginia, [supra] .

2. Case No. A02A0639 (Two Counts of Aggravated Assault).

As above, McCarroll’s sole challenge on appeal is to the sufficiency of the evidence supporting his conviction. In that regard,

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

With these principles in mind, the evidence of record shows that McCarroll and several of his friends decided to steal marijuana from the victim, Lawrence. Under the guise of purchasing the drug, McCarroll and his co-defendants arranged a meeting place with the victim. After arrival at the designated spot and discussion with several of the female members of McCarroll’s group, the victim began to “bag” the requested amount of marijuana; he exited his car in order to effectuate delivery. At this point, McCarroll and another male, both of whom had remained hidden, came up behind the victim and began to beat him about the head with wooden boards. The victim fell back into his car and retrieved a gun from under the driver’s seat. McCarroll grabbed the weapon from the victim’s hand, while his accomplice continued to beat the victim. McCarroll then shot the victim twice. Viewing this evidence in the light most favorable to uphold the jury verdict in this case, we find the evidence sufficient to authorize a rational trier of fact to find McCarroll guilty beyond a reasonable doubt of two counts of aggravated assault.

Decided January 17, 2002.

Robert Greenwald, for appellant.

Daniel J. Porter, District Attorney, James M. Miskell, Assistant District Attorney, for appellee.

Judgments affirmed in both above-styled cases.

Smith, P. J., and Ellington, J., concur.

        Davis v. State, 248 Ga. App. XXVI (2001).

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

       Pate had agreed to wear a wire during her conversation with McCarroll.

       (Footnote omitted.) Davis v. State, supra at unpublished opinion pages 1-6 (1).

       (Citation omitted.) Plumm v. State, 201 Ga. App. 154, 155 (3) (410 SE2d 352) (1991).

       McCarroll was indicted with five co-defendants, Rodney Robinson, Lamar Whitney, Inderia Kelly, Sabrina Ross, and Abbrea Askew. All of the co-defendants pled guilty, and several of them testified against McCarroll at trial.

        Jackson v. Virginia, supra.


author: Pope, Presiding Judge.

text:
    A01A1677.
    BARRETT v. THE STATE.
    (559 SE2d 108)
   Pope, Presiding Judge.

Mickey Barrett was tried by a jury and convicted on multiple counts of child molestation, aggravated child molestation, and aggravated sodomy. He enumerates three errors.

Evidence at trial showed that for several years, Barrett engaged in numerous sexual acts with his then wife’s young son (his stepson), including fondling, masturbation, oral sex, and one episode of anal sex. The State also introduced his ex-wife’s testimony that Barrett repeatedly requested that she engage in anal intercourse with him, which with one exception she refused to do. He made these requests at least twice weekly for several years during the same period of time that he was molesting the boy.

1. Barrett contends the court erred by admitting his ex-wife’s testimony. We begin by noting that “[t]he general character of the parties and especially their conduct in other transactions are irrelevant matter unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct.” OCGA § 24-2-2. The exception to this rule argued by the State is that the testimony tends to prove Barrett’s state of mind or motive.

Before such evidence may be admitted as a “similar transaction,” the State must make three affirmative showings: (1) that the evidence is being used for a permissible purpose, (2) that sufficient evidence shows the accused to have been the perpetrator of the similar transaction, and (3) that sufficient similarity exists between the transaction and the crime for which the accused is on trial, such that proof of the former tends to prove the latter. Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991). This exception to the general rule “has been most liberally extended in the area of sexual offenses, but even where sexual offenses are involved, the evidence should not be admitted unless the prejudice it creates is outweighed by its relevancy.” (Citation and punctuation omitted.) Holmes v. State, 216 Ga. App. 874, 875 (1) (456 SE2d 236) (1995).

The State argued that Barrett’s ex-wife’s continued refusals motivated the defendant to act out sexually against her son. State of mind and motive are permissible purposes. See, e.g., Dumas v. State, 239 Ga. App. 210, 215 (3) (521 SE2d 108) (1999). And, the ex-wife’s testimony was sufficient to show that Barrett was the perpetrator of the purported similar transaction.

The more significant issue is whether the evidence is sufficiently similar to a charged crime such that it tends to prove that Barrett committed that crime. In Count 2 of the indictment, Barrett was charged with aggravated child molestation arising out of the one incident of anal intercourse. A person commits aggravated child molestation if he or she engages in sodomy while committing child molestation. OCGA § 16-6-4 (c). Child molestation requires proof that the defendant performed the immoral or indecent act with the intent to arouse or satisfy either his or the child’s sexual desires. OCGA § 16-6-4 (a).

There is an obvious similarity between the act of anal sex Barrett requested and had with his wife and the anal sex that Barrett requested and had with the boy. And the ex-wife’s testimony is relevant because it tends to show that Barrett desired anal sex to satisfy his own sexual desires as required by OCGA § 16-6-4 (a). See Thomas v. State, 239 Ga. 734, 737-738 (5) (238 SE2d 888) (1977) (the incident must be relevant to the particular case on trial and the testimony must be needed; for instance, when there is no direct way for the State to prove the defendant’s beliefs, motives, or state of mind). Cf. Simpson v. State, 271 Ga. 772, 773-774 (1) (523 SE2d 320) (1999) (defendant’s sexual paraphernalia is “inadmissible unless it shows defendant’s lustful disposition toward the sexual activity with which he is charged or his bent of mind to engage in that activity”).

The fact that none of the ex-wife’s testimony involves sexual acts with a child is not determinative because there is no “per se rule whereby evidence of a sexual offense involving an adult victim is always inadmissible in cases in which the sexual offense was perpetrated on a minor.” Tucker v. State, 191 Ga. App. 648 (382 SE2d 425) (1989). Compare Bloodworth v. State, 173 Ga. App. 688 (327 SE2d 756) (1985) (prior incident of making a pass at an adult woman is not an admissible similar transaction on a charge of molesting a six-year-old child).

The prior acts are dissimilar, however, in a significant way. None of the ex-wife’s testimony involves nonconsensual behavior. (This distinguishes child molestation cases involving nonconsensual behavior toward an adult in a prior transaction.) See, e.g., Satterwhite v. State, 250 Ga. App. 313, 316 (2) (a) (551 SE2d 428) (2001) (rape of coworker sufficiently similar to nonconsensual sexual activity with child to allow evidence of former crime); Thompson v. State, 241 Ga. App. 295 (526 SE2d 434) (1999); Yelverton v. State, 199 Ga. App. 41, 42-43 (1) (403 SE2d 816) (1991). Compare Smith v. State, 249 Ga. App. 39, 40-41 (1) (547 SE2d 598) (2001) (court should sever trial of rape of an adult and child molestation because rape of an adult does not show lustful disposition toward children, and molestation of child would not show bent of mind to rape adult).

But, given that the similar transaction rule has been most liberally extended in the area of sexual offenses, and because the prior transaction in this case tends to shed light on what would arouse Barrett’s sexual desire, we conclude that the evidence here was admissible and that its probative value outweighed any prejudicial impact.

Barrett argues that because the similar transaction involves sodomy conducted in private between consenting adults, we should consider the Supreme Court of Georgia’s holding that that activity is protected by the Georgia Constitution’s right to privacy. See Powell v. State, 270 Ga. 327 (510 SE2d 18) (1998). But Barrett did not raise any argument regarding this constitutional right in the trial court, and therefore it is not before us. Rahman v. Daikon Shield Claimants Trust, 243 Ga. App. 623, 625 (1) (532 SE2d 699) (2000).

2. Barrett contends his trial counsel provided ineffective assistance to his defense. In order to prevail on his claim of ineffective assistance of counsel, Barrett must show that his attorney’s performance was deficient and that the deficiency prejudiced him such that a reasonable probability exists that, but for counsel’s errors, the outcome at trial would have been different. Mobley v. State, 271 Ga. 577 (523 SE2d 9) (1999), citing Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

Barrett asserts that his counsel (1) failed to interview one witness until after the trial began, (2) failed to investigate before trial one of the State’s proposed similar transactions, (3) failed to familiarize himself with the child’s videotaped statement, and (4) failed to thoroughly cross-examine the State’s witnesses. However, even assuming that these assertions are true, Barrett has failed to even argue that a reasonable probability exists that, but for counsel’s errors, the outcome at trial would have been different. Accordingly, this enumeration is without merit.

Decided January 18, 2002

Albert C. Palmour, Jr., for appellant.

Herbert E. Franklin, Jr., District Attorney, Michael J. Moeller, Assistant District Attorney, for appellee.

3. Barrett failed to cite or argue authority on appeal for his third enumeration of error, and therefore it is deemed abandoned. Whatley v. State, 197 Ga. App. 489 (398 SE2d 807) (1990).

Judgment affirmed.

Blackburn, C. J., and Mikell, J., concur.