text:
    A02A2090.
    DODSON v. THE STATE.
    (571 SE2d 403)
   Blackburn, Chief Judge.

Following a jury trial, Melvin Dodson appeals his conviction for criminal attempt of arson in the first degree, contending that: (1) the evidence was insufficient to support the verdict and (2) the trial court erred by denying his written request to charge the jury on criminal trespass as a lesser included offense. For the reasons set forth below, we affirm.

1. Dodson erroneously contends that the evidence was insufficient to support the verdict.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia. Conflicts in the testimony of the witnesses, including the State’s witnesses, [are] a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld. The testimony of a single witness is generally sufficient to establish a fact.

Phagan v. State.

Viewed in this light, the record shows that, on May 1, 2000, Dodson began fighting about money with his girlfriend, Carrie Jackson. During this fight, Dodson, by his own admission, told Jackson that he was going to burn down the duplex in which they lived, and he poured gasoline on the front porch of the duplex and a rug near the front door. Jackson then called police, who arrived at the scene and arrested Dodson.

This evidence was more than sufficient to support Dodson’s conviction. See, e.g., Morrow v. State.

2. Dodson contends that the trial court erred by denying his written request to charge the jury on criminal trespass as a lesser included offense of attempted arson in the first degree as a matter of fact. Specifically, Dodson argues that his act of pouring gasoline on a rug on Jackson’s porch constituted a criminal trespass which would be a lesser included offense of the attempted arson.

OCGA § 16-1-6 provides:

An accused may be convicted of a crime included in a crime charged in the indictment or accusation. A crime is so included when: (1) It is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged; or (2) It differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission.

It is undisputed that criminal trespass is not a lesser included offense of attempted arson in the first degree as a matter of law. Dodson nonetheless contends that it is a lesser included offense as a matter of fact.

[T]he lesser offense may be an included offense in a particular case if the facts alleged in the indictment and the evidence presented at trial to establish the charged offense are sufficient to establish the lesser offense as well. Thus, whether a lesser offense is included in a greater offense as a matter of fact must be determined on a case-by-case basis, depending upon the facts alleged in the indictment and the evidence presented at trial.

(Citations, punctuation and emphasis omitted.) Strickland v. State. In this case, Dodson’s indictment states that he

did attempt to commit the crime of Arson in the First Degree, in violation of OCGA § 16-7-60 in that [he] did knowingly and intentionally perform an act which constituted a substantial step toward the commission of said crime, to wit: did pour gasoline on the front porch of the house located at 1228 Drewery Avenue . . . and threatened to burn said house.

Decided September 10, 2002.

Sullivan & Sturdivant, Harold A. Sturdivant, Michele W. Ogle-tree, for appellant.

William T. McBroom III, District Attorney, Josh W. Thacker, Assistant District Attorney, for appellee.

Neither the indictment nor OCGA § 16-7-60 applies to the damage of personal property like a rug. To the contrary, as is relevant to this case, both refer to damage to a structure or building. Therefore, because the facts as alleged in the indictment are not sufficient to establish the offense of criminal trespass regarding Jackson’s rug, it is not a lesser included offense of attempted arson in this case. The trial court did not err.

Judgment affirmed.

Johnson, P. J, and Miller, J., concur.

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

        Phagan v. State, 243 Ga. App. 568, 569-570 (2) (533 SE2d 757) (2000).

        Morrow v. State, 230 Ga. App. 137 (495 SE2d 609) (1998).

        Strickland v. State, 223 Ga. App. 772, 774 (1) (a) (479 SE2d 125) (1996).


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A02A1585.
    ZELLMER v. THE STATE.
    (571 SE2d 174)
   Eldridge, Judge.

Indicted for malice murder (Count 1), felony murder (Count 2), and armed robbery (Count 3), Michael Todd Zellmer entered a negotiated guilty plea to voluntary manslaughter under Count 2 and armed robbery under Count 3; the State nolle prossed Count l. He was sentenced within the confines of the negotiated sentence to 14 years on the voluntary manslaughter conviction and 20 years on the armed robbery, to be served consecutively. Thereafter, Zellmer filed a motion to withdraw his guilty plea based on ineffective assistance of counsel, which motion, after a lengthy hearing, was denied. He appeals pro se from such denial, contending that his guilty plea was entered under duress; he received ineffective assistance of counsel; the trial court improperly refused to consider issues and evidence raised at the motion to withdraw his plea; and that the evidence was insufficient to demonstrate guilt. Upon review of these claims of error, we affirm.

1. “A knowing and voluntary plea of guilty acts as a waiver of all defenses, known or unknown.” Accordingly, we will not consider Zellmer’s challenge to the sufficiency of the evidence against him. We do note, however, that a factual basis for Zellmer’s plea was established on the record by virtue of the introduction of Zellmer’s confession to his participation in the acts as indicted, as well as by the trial judge’s familiarity with the case from the trial of Zellmer’s co-defendant.

2. Both independently and as the basis for a claim of ineffective assistance of counsel, Zellmer contends that his guilty plea was entered under duress when, on the day of trial, his attorney informed him that the State’s prior plea recommendation to life on the murder charge had been reduced to voluntary manslaughter — with a recommended sentence cap of no more than life for a plea on both voluntary manslaughter and the armed robbery count of the indictment. Apparently, Zellmer’s defense counsel advised him to accept the plea and discussed with him the various legal ramifications that going to trial might engender. From this, Zellmer contends that “[t]his last minute plea offer placed Appellant Zellmer was [sic] under extreme mental duress and pressure when he considered taking the advice of counsel”; and, “Counsel gave Appellant ten (10) minutes to make a decision about the rest of his life.”

“[A] ruling on a motion to withdraw a guilty plea lies within the sound discretion of the trial court and will not be disturbed absent a manifest abuse of such discretion.” Further, “[t]o prevail on his ineffective assistance of counsel claim, [Zellmer] must show that his lawyer’s performance was deficient and that, but for [his] errors, there is a reasonable probability he would have insisted on going to trial.”

In that regard, we have reviewed the lengthy plea colloquy between the trial court, the State, defense counsel, and appellant Zellmer. We have also reviewed the testimony of defense counsel on this issue given at the motion to withdraw. We find no factual basis for Zellmer’s claim of duress, either substantively or as a predicate to a claim of ineffective assistance of counsel.

Contrary to Zellmer’s contentions, the record shows and the attorney’s testimony establishes that Zellmer had hours to consider the negotiated plea offer; half a day, in fact. During the plea, itself, the court repeatedly asked Zellmer whether he wished to discontinue the plea process and whether he needed more time with his attorney; Zellmer repeatedly answered both questions in the negative. The record shows that defense counsel discussed extensively with Zellmer the offer, its ramifications, and the potential results of going to trial. Defense counsel recommended Zellmer take the State’s offer in light of the charges he faced, his confession, and the results of his co-defendant’s earlier trial on the same offenses; however, the record is abundantly clear that counsel left the ultimate decision up to Zellmer. We cannot say counsel’s advice and conduct were unreasonable under the circumstances. Instead, we find that any duress Zellmer may have experienced in making his decision to plea appears from the record to be due to the circumstances in which he found himself, and not because of “undue influence” and/or “intimidation” by his trial attorney.

We also soundly reject Zellmer’s contention that defense counsel was “unprepared” for trial. This was originally a death penalty case. Defense counsel was specifically selected because of his considerable expertise and experience. Counsel had years to prepare for trial, argued over 100 motions, discussed the case with Zellmer extensively, attended the earlier trial of Zellmer’s co-defendant on the same charges, was engaged in jury selection at the time Zellmer decided to accept the State’s plea offer, and testified at the hearing on the motion to withdraw that he was prepared for trial. Our review of the record only reinforces what the trial court concluded:

So as far as the ineffectiveness of counsel, I deny your claim regarding that and find that their performance was superb, not just average, but superb.

Zellmer’s further contention that counsel was deficient because he failed to request a pre-sentence investigation cannot establish ineffective assistance of counsel when Zellmer fails to assert what such investigation would have revealed or what difference it would have made. “Error and prejudice must be shown in order to prevail on a claim of ineffective assistance of counsel.”

,, Lastly, defense counsel made it clear he told Zellmer that, in matters of parole, “you should assume you’re going to serve all of the time you get, again, because parole is a game with no rules.” Thus, with such preamble as background, any discussion with Zellmer regarding the possibility of parole in regard to the State’s recommended sentence provides no basis for a finding of ineffective assistance of counsel.

Decided August 30, 2002

Reconsideration denied September 11, 2002.

Michael T. Zellmer, pro se.

Patrick H. Head, District Attorney, Dana J. Norman, Russell J. Parker, Assistant District Attorneys, for appellee.

In sum, Zellmer fails to establish either prong of the Strickland v. Washington standard, i.e., error and prejudice. As such, we cannot find a manifest abuse of discretion on the part of the trial court in denying Zellmer’s motion to withdraw his guilty plea on the basis of ineffective assistance of counsel or alleged duress in the entry of his plea.

3. Zellmer contends the trial court erred in failing to credit the testimony of a doctor Zellmer called to testify at the hearing as to his stressful mental state at the time of the entry of the guilty plea. However, the trial judge specifically found that such witness’s testimony was not credible in light of both his own observations of Zellmer at the time of the entry of the plea and Zellmer’s responses to the trial court at such time. In addition, the court relied upon defense counsel’s testimony that Zellmer did not seem to be under undue stress; that Zellmer understood what he was doing; and that Zellmer’s plea was, in defense counsel’s opinion, knowingly and voluntarily entered. Accordingly, any contradiction in testimony “simply presented a matter of witness credibility, which the trial court was authorized to resolve against [Zellmer].”

4. To the extent that Zellmer makes additional claims of error, we find that such are either unsupported by facts of record, unpreserved for appellate review, or that such claims attempt to inappropriately apply the Civil Practice Act to this criminal case. Accordingly, no basis for reversal is presented.

Judgment affirmed.

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

       Prior to the entry of Zellmer’s plea, the State tried Zellmer’s co-defendant, Robert Charles Spickler, Jr., on the same charges, seeking the death penalty during that trial. The jury found Spickler guilty and, following the penalty phase of the trial, returned a life sentence. The same judge presided at Spickler’s trial and at the entry of Zellmer’s guilty plea.

        Swan v. State, 251 Ga. App. 80, 81 (3) (553 SE2d 383) (2001).

       Id.

       See Golden v. State, 190 Ga. App. 477, 478 (379 SE2d 230) (1989).

        Thomas v. State, 234 Ga. App. 652, 653 (1) (507 SE2d 523) (1998).

        Ellis v. State, 272 Ga. 763, 764 (1) (534 SE2d 414) (2000).

       The State filed a notice of intent to seek the death penalty in this case, which notice was subsequently withdrawn based on the jury’s return of a life sentence in co-defendant Spickler’s trial.

       Zellmer was appointed two defense attorneys; lead counsel, Marc Celia, testified at the motion to withdraw.

        Fairbanks v. State, 225 Ga. App. 666, 670 (4) (484 SE2d 693) (1997).

        Ellis v. State, supra at 764.

       466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

        Pike v. State, 245 Ga. App. 518, 522 (538 SE2d 172) (2000).


text:
    A02A1671.
    THOMAS v. THE STATE.
    (571 SE2d 178)
   Eldridge, Judge.

A Fulton County jury found Morris Thomas guilty of aggravated assault, which charge arose when he pointed a pistol at his ex-girlfriend and threatened to kill her; the jury acquitted him of kidnapping and armed robbery charges arising from the same incident. He appeals, challenging the sufficiency of the evidence against him and claiming error in the trial court’s failure to strike for cause two potential jurors. We affirm.

1. In challenging the sufficiency of the evidence, Thomas first contends that, since the jury acquitted him of the kidnapping and armed robbery charges, they could not have found him guilty of aggravated assault. We disagree.

On appeal, this Court determines evidence sufficiency. We do not weigh the evidence or determine witness credibility. The evidence is sufficient as a matter of law if, when viewed in the light most favorable to the verdict, a rational trier of fact could find all the essential elements of the crimes charged beyond a reasonable doubt.

Here, the evidence of record shows that the victim willingly got into a vehicle with Thomas; once there, Thomas beat the victim to such an extent that an officer testified at trial, “she had been beat up pretty good”; Thomas then removed $400 from the victim’s purse; thereafter, when the victim attempted to flag down a security guard, Thomas pointed a pistol at her and threatened to kill her. When Thomas was arrested shortly after the incident, a pistol was found under the driver’s seat of the vehicle. Thus, chronologically, the offense of aggravated assault as indicted (assault with the pistol) was unrelated to the other two offenses and occurred after they were complete. “These verdicts are not necessarily inconsistent. Even if they were, the inconsistent verdict rule has long been abolished in criminal cases.”

Thomas also claims the evidence was insufficient to show that he threatened to kill the victim, as was alleged in the indictment. However, the investigating officer testified that, in her statement to the police on the scene, the victim stated Thomas “put the gun to her head and told her he would kill her if she screamed.” This evidence is sufficient to prove Thomas threatened to kill the victim.

Further, such threat is not an essential element of the indicted form of aggravated assault, OCGA § 16-5-21 (a) (2) — assault with a deadly weapon. The victim’s testimony that Thomas pointed a pistol at her and that she “was very much afraid” was sufficient to establish the indicted offense.

A variance in proof from that alleged in the indictment is only fatal if two crucial requirements are not met. These are (1) that the accused be definitely informed as to the charges against him, so that he is able to present his defense, and (2) that he may be protected against another prosecution for the same offense.

The threat to kill alleged in the indictment did not impact on either of the two requirements outlined above in establishing the elements of the indicted offense under OCGA § 16-5-21 (a) (2). Accordingly, a failure in proof as to such threat would not impact on the validity of Thomas’ conviction for aggravated assault. “[A]n unnecessary description of an unnecessary fact need not be proved.”

2. Thomas contends the trial court erred in refusing to strike for cause jurors Dave Beck and Cessie Henderson because both jurors were not impartial between the State and the defense due to prior life experiences with violence. However, we have reviewed the voir dire responses of both jurors and find this contention meritless.

Both jurors stated that personal experiences with violence led them to doubt their ability to be impartial as to the offense — if the facts as alleged were proved by the State. Neither juror had formed an opinion as to Thomas’ guilt or innocence, nor had they pre-judged the evidence. “[A] trial court is not obligated to strike a juror for cause in every instance where the potential juror expresses doubts about his or her impartiality or reservations about his or her ability to set aside personal experiences.” There is a legal difference between (a) a potential juror who, because of life experiences, expresses doubt that he or she can be impartial if evidence triggers those experiences, and (b) a juror who, because of life experiences, cannot listen to the evidence before forming a judgment. While the former category may or may not merit a peremptory strike, the latter category does merit a strike for cause. Juror Beck’s and juror Henderson’s concerns about their impartiality fall into the former category. “Although both expressed some reservations about their ability to put aside their experiences, neither suggested that he or she had already formed an opinion as to [Thomas’] guilt or innocence.” In that regard,

Decided August 30, 2002

Reconsideration denied September 11, 2002

Bruce S. Harvey, David S. West, for appellant.

Paul L. Howard, Jr., District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.

[flor a juror to be excused for cause, it must be shown that he or she holds an opinion of the guilt or innocence of the defendant that is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court’s charge upon the evidence. ... A conclusion on an issue of juror bias is based on findings of demeanor and credibility which are peculiarly in the trial court’s province, and those findings are to be given deference. Nothing in the juror [s’] responses compels a finding that [they] had formed an opinion of [Thomas’] guilt or innocence that was so fixed and definite that [they] would be unable to set the opinion aside, or that [they] would be unable to decide the case based upon the court’s charge and upon the evidence. It was not an abuse of discretion to refuse to excuse the juror [s].

Judgment affirmed.

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

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

       (Citation omitted.) Walker v. State, 271 Ga. 328, 329 (1) (519 SE2d 670) (1999).

       (Citation and punctuation omitted.) Evans v. State, 241 Ga. App. 32 (1) (525 SE2d 780) (1999).

       (Citation omitted.) Bell v. State, 227 Ga. 800, 802 (183 SE2d 357) (1971).

        Wilson v. State, 271 Ga. 811, 815 (5) (a) (525 SE2d 339) (1999).

        Holmes v. State, 269 Ga. 124, 126 (2) (498 SE2d 732) (1998).

       See Walls v. Kim, 250 Ga. App. 259, 260 (549 SE2d 797) (2001), aff’d, Kim v. Walls, 275 Ga. 177 (563 SE2d 847) (2002) (juror states during voir dire that her personal relationship with a party to suit made her partial to that party prior to the introduction of evidence); compare Wagner v. State, 253 Ga. App. 874, 881 (560 SE2d 754) (2002) (“No . . . personal interest was evident in the juror challenged.”); Torres v. State, 253 Ga. App. 318, 320 (558 SE2d 850) (2002) (no expression of “well-founded doubts about being able to serve impartially because of a close relationship with one of the parties or because of extrajudicial knowledge of the events at issue”).

        Holmes v. State, supra at 126-127.

       (Citations omitted; emphasis supplied.) Corza v. State, 273 Ga. 164,166 (3) (539 SE2d 149) (2000); accord Waldrip v. State, 267 Ga. 739, 745 (8) (c) (482 SE2d 299) (1997).


author: Johnson, Presiding Judge.

text:
    A02A1475.
    NARANJO v. THE STATE.
    (572 SE2d 637)
   Johnson, Presiding Judge.

Alfredo Naranjo pled guilty to committing an aggravated assault with intent to rob upon the clerk of a convenience 'store. He filed a motion to withdraw the plea. The trial court denied the motion. Naranjo appeals, arguing that he did not understand what he was doing when he entered his plea. The argument is without merit, and we therefore affirm the judgment of the trial court.

When a defendant challenges the validity of his guilty plea, the state has the burden of showing that the defendant entered the plea voluntarily and intelligently and that he understood the nature of the charge and the consequences of the plea. The state meets its burden either by showing from the record of the guilty plea hearing that the defendant was cognizant of the rights he was waiving and the consequences of the plea, or by filling a silent record with extrinsic evidence showing that the plea was knowing and voluntary.

In the instant case, the state has met its burden by showing from the record of the guilty plea hearing that Naranjo knew the rights he was waiving and the consequences of his guilty plea. The transcript of the guilty plea hearing reveals that Naranjo was represented by counsel, and an interpreter was sworn in to assist with the hearing. Through the interpreter, Naranjo told the court he understood the nature of the aggravated assault charge against him. He also stated that he understood that by pleading guilty he was giving up his rights to a jury trial, to be presumed innocent, to subpoena witnesses, to testify and offer evidence, to be assisted by an attorney, and not to incriminate himself. Naranjo further said that he understood that the possible sentence for aggravated assault is from one to twenty years in prison, that he had discussed the negotiated plea agreement of a seven-year sentence with his attorney, and that he had not been threatened or coerced into pleading guilty.

The trial judge asked Naranjo if he had any problems with what had been interpreted to him, if he understood what was going on, and if there was anything that he did not understand or wanted to be explained. Naranjo told the judge that he had no problems with what had been interpreted, that he understood what was going on, and that he did not need any further explanation. Naranjo then pled guilty to the aggravated assault and said he was entering the plea freely and voluntarily.

Naranjo’s attorney then told the court that he had explained all of Naranjo’s rights to him, thát he knew of no reason why the plea should not be accepted, that an interpreter had been used during all of his consultations with Naranjo, and that he believed Naranjo had understood everything that had happened. Naranjo informed the court that he had no objections to the manner in which his attorney had handled the case. The court then accepted the guilty plea and imposed the recommended sentence of seven years.

Decided September 11, 2002.

James W. Bradley, for appellant.

Robert E. Keller, District Attorney, Bonnie K. Smith, Assistant District Attorney, for appellee.

Once the sentence is pronounced, the matter of whether to allow the withdrawal of a guilty plea is within the sound discretion of the trial court, and the court’s decision will not be disturbed absent a manifest abuse of that discretion. Given that the record plainly shows that Naranjo’s guilty plea was knowing and voluntary, we find no manifest abuse of discretion in the trial court’s refusal to allow him to withdraw the plea. The trial court’s decision therefore will not be disturbed.

Judgment affirmed.

Blackburn, C. J., and Miller, J., concur.

        Umbehaum v. State, 251 Ga. App. 471 (1) (554 SE2d 608) (2001).

       Id.

         Wilcox v. State, 236 Ga. App. 235, 236 (2) (511 SE2d 597) (1999).


author: Ellington, Judge.

text:
    A02A0878.
    In the Interest of T. S. T., a child. In the Interest of J. V. T., a child. In the Interest of L. C. T., a child.
    A02A0879.
    A02A0880.
    (571 SE2d 416)
   Ellington, Judge.

In these consolidated cases, Larry Samuel Thurmond appeals from the August 27, 2001 juvenile court order dismissing his petitions to terminate his former wife’s parental rights to their three minor children, T. S. T, J. V. T, and L. C. T. His suits were private termination actions; the Department of Family & Children Services was not involved. Citing OCGA § 15-11-58 (a), the juvenile court dismissed the petitions as premature because Thurmond had not sought a reunification plan or pleaded facts that would lead to a conclusion that a reunification plan was not required. Because a reunification plan is not mandated by this Code section under the facts of this case, we reverse that portion of the court’s order dismissing the petition as premature.

Several months after Thurmond’s appeal was docketed, this Court concluded that OCGA § 15-11-58 (a) applied to deprivation petitions brought by private individuals because, at the time, there was nothing in the language of that Code section specifically limiting its application to cases initiated by the Department of Family & Children Services. In the Interest of J. W. K., 254 Ga. App. 661 (563 SE2d 514) (2002). Shortly after this decision issued, however, the legislature amended OCGA § 15-11-58 (a) as follows:

A court’s order removing a child from the child’s home shall be based upon a finding by that court that continuation in the home would be contrary to the welfare of the child. The If the court places custody of the child in the Division of Family and Children Services of the Department of Human Resources, the court shall also determine as a finding of fact whether reasonable efforts were made by the Division of Family and Children Services of the Department of Human Resources and any other appropriate agencies to preserve and reunify families prior to the placement of a child in fester care the custody of the Department of Human Resources, to prevent or eliminate the need for removal of the child from that child’s home, and to make it possible for the child to return safely to the child’s home. Such findings shall also be made at every subsequent review of the court’s order under this chapter.

(Amendments emphasized; deleted portions of prior law struck through.) OCGA § 15-11-58 (a), as amended by Ga. L. 2002, p. 1173, § 1 (SB 428). This amended Code section became effective upon the Governor’s signature on May 16, 2002.

It is well established that an appellate court applies the law as it exists at the time its decision is rendered. Elmore v. State, 269 Ga. 528, 530 (4) (501 SE2d 215) (1998). Where a statute governs only the procedure of the courts, it is to be given retroactive effect absent an express contrary intention. Polito v. Holland, 258 Ga. 54, 55 (365 SE2d 273) (1988). OCGA § 15-11-58 (a) governs the procedure a court applies when making factual findings in support of certain child custody orders. As such, it is procedural in character. See id. Consequently, we apply it retroactively.

It is axiomatic that in interpreting a plain and unambiguous enactment we must give its words their plain and ordinary meaning, except for words which are terms of art or have a particular meaning in a specific context. OCGA § 1-3-1 (b). Amended OCGA § 15-11-58 plainly states that reunification plans are only required when the court removes a child from his or her home and places him or her in the custody of the Department of Human Resources. The Department of Human Resources was not involved in this private action and was not seeking custody of the children involved. Therefore, the juvenile court erred in dismissing Thurmond’s petition for failing to comply with the reunification plan requirements of OCGA § 15-11-58 (a). We reverse that portion of the order appealed and remand these cases to the trial court for further proceedings.

Decided September 12, 2002.

McDonald & Cody, Douglas W. McDonald, Sr., Paula O. Free, for appellant.

Thomas A. Camp, Deidra L. Schad, for appellee.

Judgment reversed.

Smith, P. J, and Eldridge, J., concur.


text:
    A02A0940.
    ZEIGLER v. HAMBRICK.
    (571 SE2d 418)
   Ellington, Judge.

Althea Zeigler appeals the order dismissing her personal injury action against Nicole Hambrick. The State Court of DeKalb County concluded Zeigler failed to exercise due diligence in serving Ham-brick and granted Hambrick’s motion to dismiss or, in the alternative, for summary judgment. Zeigler appeals, contending the trial judge applied the incorrect standard when evaluating whether service was timely. Zeigler also contends the trial court erred in concluding she failed to act diligently in serving Hambrick 21 days after filing the renewal action. Finding no error, we affirm.

Briefly, the record shows Zeigler and Hambrick were involved in a car collision on July 15,1997. In 1998, Zeigler filed a timely suit for personal injuries in the State Court of Fulton County. Zeigler later voluntarily dismissed this suit on September 19, 2000, after learning Hambrick was a resident of DeKalb, not Fulton, County. Zeigler filed a timely renewal action under OCGA § 9-2-61 in DeKalb County on March 9, 2001. The DeKalb County marshal served Hambrick on March 30, 2001, 21 days after Zeigler filed her renewal suit.

Hambrick filed a motion to dismiss or, in the alternative, for summary judgment, arguing the statute of limitation had run on Zeigler’s claim. Noting that a plaintiff has the burden to ensure the defendant is served “as quickly as possible,” the trial court granted Hambrick’s motion to dismiss, because “[Zeigler] failed to exercise due diligence in serving [Hambrick].”

1. Under OCGA § 9-11-4 (c), “[w]hen service is to be made within this state, the person making such service shall make the service within five days from the time of receiving the summons and complaint; but failure to make service within the five-day period will not invalidate a later service.” Zeigler contends, correctly, that service perfected more than five days after filing can be deemed timely if the trial court determines the plaintiff exercised “due diligence” in serving the defendant. See Starr v. Wimbush, 201 Ga. App. 280, 281 (2) (410 SE2d 776) (1991). Zeigler contends the trial court in this case improperly applied a more stringent standard when it granted Ham-brick’s motion to dismiss on the basis Zeigler did not perfect service “as quickly as possible.” We disagree.

This Court has consistently used the phrase “as quickly as possible” to describe due diligence in perfecting service. “When an action is filed within the applicable limitation period but service is perfected more than five days after that period expires, the service relates back to the original filing only if the plaintiff acted reasonably and diligently to ensure that proper service was made as quickly as possible.” (Footnote omitted.) Douglas v. Seidl, 251 Ga. App. 147, 148 (553 SE2d 829) (2001). See also Magsalin v. Chace, 255 Ga. App. 146, 147 (1) (564 SE2d 554) (2002); Heard v. Hart, 241 Ga. App. 441, 442 (526 SE2d 908) (1999); Walker v. Bord, 225 Ga. App. 242, 243 (483 SE2d 675) (1997). Thus, the trial court did not err in using “as quickly as possible” as a measure in determining whether Zeigler exercised “due diligence.”

2. Zeigler contends the trial court erred in concluding she failed to exercise due diligence in serving Hambrick.

Diligence in perfecting service of process in an action properly refiled under OCGA § 9-2-61 (a) must be measured from the time of filing the renewed suit. Since service of the renewal action in this case was not perfected within the six-month renewal period, [Zeigler] would have the burden of showing that [she] acted in a reasonable and diligent manner in attempting to ensure that proper service was made as quickly as possible.

(Citation and punctuation omitted.) Heard v. Hart, 241 Ga. App. at 442. The determination of whether Zeigler was guilty of laches in failing to exercise due diligence in perfecting service is a matter within the trial court’s discretion and will not be disturbed on appeal absent abuse. Id. at 443.

As the burden rests on the plaintiff to ensure diligent service, she must provide specific dates or details to show diligence and cannot rely on conclusory statements. Freemon v. Dubroca, 177 Ga. App. 745, 746 (2) (341 SE2d 276) (1986). In this case, Zeigler provided no evidence to show she exercised diligence in perfecting service. Zeigler averred, without a supporting affidavit, that the marshal’s office was having trouble serving Hambrick due to demands on the office. Zeigler provided no evidence, however, that she took any steps to ensure that her renewal action was served, such as by making inquiries at the marshal’s office or by requesting a special process server. Scott v. Taylor, 234 Ga. App. 543, 544 (507 SE2d 798) (1998) (action properly dismissed when plaintiff failed to “show that the sheriff’s office was contacted to ascertain the reason for the delay in effectuating service”); Deloach v. Hewes, 211 Ga. App. 321, 322 (439 SE2d 94) (1993) (dismissal of suit reversed where plaintiff’s followup calls to clerk’s and marshal’s offices demonstrated due diligence); Freemon v. Dubroca, 177 Ga. App. at 746 (dismissal of suit affirmed when plaintiff waited ten months to use a special process server, who was able to serve defendant in nine days). Zeigler cannot excuse her lack of diligence by attempting to place responsibility on others. See Jarmon v. Murphy, 164 Ga. App. 763, 764 (298 SE2d 510) (1982) (“burden is on the plaintiff, not the sheriff, to show diligence in attempting to insure that proper service has been made as quickly as possible”) (emphasis omitted); Nee v. Dixon, 199 Ga. App. 729, 730 (405 SE2d 766) (1991). Because the evidence does not demand a finding of due diligence, we hold that the trial court did not abuse its discretion in granting Hambrick’s motion to dismiss. Magsalin v. Chace, 255 Ga. App. at 148 (1); Heard v. Hart, 241 Ga. App. at 443.

Decided September 12, 2002.

Morse & Ontal, Jack O. Morse, for appellant.

Greer, Klosik, Daugherty & Swank, Jeffrey F. Leasendale, Robert J. McCune, for appellee.

Judgment affirmed.

Smith, P. J., and Eldridge, J., concur.


text:
    A02A1128.
    RICHARDS v. THE STATE.
    (571 SE2d 172)
   Ellington, Judge.

Charles H. Richards, Jr. appeals from the DUI conviction entered in the City Court of Atlanta on August 30, 2001. Richards contends the trial court erred in denying his motion to suppress. Finding no error, we affirm.

When an appellate court reviews a trial court’s order concerning a motion to suppress evidence, the appellate court should be guided by three principles with regard to the interpretation of the trial court’s judgment of the facts. First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support [them]. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.

(Citations and punctuation omitted.) Castillo v. State, 232 Ga. App. 354, 355-356 (502 SE2d 261) (1998).

Viewed in this light, the record shows that on February 26, 2001, the City of Atlanta Police Department conducted a roadblock at the 1900 block of Cheshire Bridge Road. Richards was driving on Cheshire Bridge Road toward Piedmont Road when he crested a hill and suddenly saw the roadblock ahead. Officer Burgan, who was working at the roadblock, observed Richards crest the hill in the far right lane, stop abruptly, back up approximately 50 feet, and turn onto a side street. At approximately 3:30 a.m., Officer Burgan stopped Richards for a violation of OCGA § 40-6-240, improper backing, and because he believed that Richards was attempting to avoid the roadblock. Upon questioning Richards, the officer noticed that he appeared to be intoxicated and smelled like alcohol. Richards failed field sobriety tests and agreed to take a breath test, which revealed an alcohol concentration of 0.178. Officer Burgan arrested Richards for DUI, improper backing, expired driver’s license, and expired tag.

Richards pled not guilty to the DUI and improper backing charges. Richards filed a motion to suppress the evidence gathered after he was stopped by Officer Burgan, claiming the officer did not have a reasonable, articulable suspicion of criminal activity to justify the stop. A motions hearing took place on August 27, 2001, and the court denied the motion to suppress after finding the officer had the necessary reasonable, articulable suspicion to justify the stop. Richards stipulated to the facts as presented in the motions hearing and a similar transaction hearing and waived his request for a jury trial. Following a stipulated bench trial, the court, found him guilty of DUI and improper backing.

1. Richards contends the trial court erred in denying his motion to suppress because the arresting officer did not have reasonable articulable suspicion of criminal activity necessary to justify the stop. This Court has previously held that an attempt to avoid a roadblock by driving in an unusual, unsafe, or furtive manner can provide the requisite articulable suspicion to justify a stop. In Taylor v. State, 249 Ga. App. 733, 734 (549 SE2d 536) (2001), an officer observed Taylor, who was approaching a roadblock, attempt to avoid that roadblock by turning abruptly and driving over a curb into a closed shopping center. This Court affirmed the trial court’s denial of Taylor’s motion to suppress the blood alcohol evidence, stating “[w]e have previously held that abnormal or unusual actions taken to avoid a roadblock may give an officer a reasonable suspicion of criminal activity even when the evasive action is not illegal.” (Footnote omitted.) Id. at 735. See also Castillo v. State, 232 Ga. App. at 356-357 (denial of a motion to suppress evidence affirmed where defendant made an unusual and unsafe turning maneuver from which the police could reasonably conclude that defendant was attempting to avoid a roadblock. Therefore, a reasonable articulable suspicion for the stop existed, regardless whether it was ultimately proven that the maneuver violated any laws.); State v. Webb, 193 Ga. App. 2, 4 (1) (386 SE2d 891) (1989) (accord).

Decided August 29, 2002

Reconsideration denied September 13, 2002

Monte K. Davis, for appellant.

Joseph J. Drolet, Solicitor-General, Katherine Diamandis, Assistant Solicitor-General, for appellee.

In this case, Richards attempted to avoid a roadblock in a manner that was sufficiently suspicious and furtive to provide the reasonable, articulable suspicion of criminal activity that justified the officer’s further investigation. In addition, Richards violated OCGA § 40-6-240 when he backed his car 50 feet on Cheshire Bridge Road, further justifying the stop. Accordingly, the trial court did not err in denying Richards’ motion to suppress.

2. Richards also contends the roadblock was not properly implemented. Richards was not stopped at the roadblock, however, so the validity of the roadblock is irrelevant. There was no error.

Judgment affirmed.

Smith, P. J., and Eldridge, J., concur.

       The trial court convicted Richards of violating OCGA § 40-6-240, improper backing. That conviction was not enumerated as error on appeal.


author: Eldridge, Judge. Smith, Presiding Judge,

text:
    A02A1282.
    EMANUEL TRACTOR SALES, INC. v. DEPARTMENT OF TRANSPORTATION.
    (571 SE2d 150)
   Eldridge, Judge.

This is an appeal from the grant of summary judgment in an action for inverse condemnation against Emanuel Tractor Sales, Inc., plaintiff, holding that it had no legal interest by lease in the land conveyed to the Department of Transportation, because under the express terms of the lease, the leasehold interest terminated automatically upon the conveyance of part of the leasehold interest to the DOT. We determine, that at the moment of conveyance to DOT, the lease automatically terminated under the condition subsequent. We affirm.

John R. Roberts owned the land and operated a tractor dealership on this site since 1950. In 1982, Roberts sold the tractor dealership on the site to John Rountree, retaining the ownership of the land. In 1982, as owner and sole stockholder, Rountree incorporated Emanuel Tractor to operate the dealership. In 1982, Roberts rented the land to Emanuel Tractor. The allegedly executed written lease was retained by Roberts’ former partner, which writing was purportedly lost at his death; no explanation was given why there were no copies of this agreement, and no documentary evidence was introduced which established the terms of the alleged lease. Emanuel Tractor had a below market rent of $1,000 per month, and Roberts had to pay the insurance on the building and taxes.

On March 2, 1998, Rountree and Roberts entered into a written lease to memorialize the 1982 written lease alleged to have been lost. Rountree signed the lease as “President.” The initial term was for five years, effective September 1, 1987, and had two automatic, renewal periods for five years each until August 3, 2002. It further provided that

[i]n the event any part of the leased premises is taken through condemnation, or should the Lessor voluntarily sell any part of the leased premises to any City, County, State or Federal Agency for right of way purposes and should said condemnation or conveyance either [sic] restrict the ability of Lessee to maintain its business on the premises, this lease shall automatically terminate. Additionally, Lessee shall have the sole and exclusive right and remedy to terminate this lease at any time upon thirty days notice to Lessor of his desire to terminate said lease, in the event any actual or proposed condemnation proceeding shall, in the Lessees [sic] opinion, create such an inconvenience, hindrance or total inability to transact business on the leased premises, the Lessee deems it necessary to vacate said premises.

On March 12,1998, the memorial of the earlier lease was recorded in the Office of the Clerk, Emanuel County Superior Court.

On March 27,1998, Roberts sold a portion of the leased property as right-of-way to DOT. Roberts gave DOT a property owner’s affidavit that there existed no leases, either recorded or unrecorded, on the land. However, Roberts had previously orally informed DOT of the Emanuel Tractor lease.

On June 5, 1998, Roberts and Emanuel Tractor, through Roun-tree, executed and filed an amendment to the March 2, 1998 lease to correct a number of errors that occurred in the memorialization lease but not in the “1987 lease.” The amendment stated that the intended renewal term in the 1987 lease was for 25 years through 2012 instead of 15 years through 2002, and the paragraph concerning condemnation was corrected to emphasize that the lessee had discretion regarding termination of the lease. The amendment substituted parties to the lease so that now the lease was between Emanuel Tractor and Roberts and not between Rountree and Roberts, because Emanuel Tractor had paid the lease since 1982. Thus, if the amendment of the March 2,1998 lease had any legal effect, then it acted as a mutually agreed upon assignment by Rountree to Emanuel Tractor; all legal or equitable interest that Rountree had under the lease was assigned to Emanuel Tractor by Roberts’ consent. Therefore, Roun-tree and Emanuel Tractor were in privity as to both the March 2, 1998 lease and the amendment.

1. The plaintiff contends that the triál court erred in finding that neither Rountree nor Emanuel Tractor had a compensable interest in the property. We do not agree, because the contract automatically terminated upon sale as a condition subsequent.

To determine if Emanuel Tractor or Rountree before it had any interest in the land after the sale, the March 2, 1998 lease must be construed by the trial court. Although the March 2, 1998 lease stated that it memorialized an earlier unestablished lease, it was an independent written contract from any alleged earlier agreement. The trial court’s first task was to determine if the 1998 lease memorialized an earlier lease as secondary evidence.

(a) The March 2, 1998 lease failed to prove the terms of the alleged earlier lease and constituted secondary evidence of what the earlier lease terms provided. “In order to admit secondary evidence, it shall appear that the primary evidence for some sufficient cause is not accessible to the diligence of the party. This showing shall be made to the court, who shall hear the party himself on the question of diligence and the inaccessibility of the primary evidence.” OCGA § 24-5-2.

The best evidence which exists of a writing sought to be proved shall be produced, unless its absence shall be satisfactorily accounted for. Written evidence of a writing is considered of higher proof than oral evidence. In all cases where the parties have reduced their contract, agreement, or stipulation to writing and have assented thereto, such writing is the best evidence of the same.

OCGA § 24-5-4 (a), (b). Thus, the plaintiff had the burden of persuasion that there had previously existed a 1982 written lease and that such written lease had been lost without any copies remaining. The plaintiff failed to satisfy the trial court that there had existed an earlier written lease. The role of the trial court is not to pass on the worthiness or credibility of secondary evidence but is to determine whether the secondary evidence is the best form of evidence accessible to the trial court. Mulkey v. State, 155 Ga. App. 304, 307 (270 SE2d 816) (1980). “The question of inaccessibility of primary evidence and diligence of the party is a determination within the discretion of the trial judge [(OCGA § 24-5-2)] and his decision will not be overturned unless that discretion is abused. Brooks v. State, 63 Ga. App. 575, 576[, hn. 2] (11 SE2d 688) [(1940)].” Id. at 306.

(b) The March 2, 1998 lease constituted a valid binding written contract on its own between Roberts and Rountree, and the June 5, 1998 amendment had the effect of an assignment with Roberts’ consent to Emanuel Tractor; it was for the trial court to construe the legal meaning of this lease to determine if the lease gave Rountree and his successor lessee any interest in the property after the conveyance of the right-of-way.

If the lease appeared ambiguous, then the trial court had to determine whether such ambiguity remained after application of the rules of construction. If an ambiguity remained after the trial court applied the rules of construction, then it was for a jury to resolve. The trial court had to determine if there was a condition subsequent that terminated the contract. On the face of the lease, there existed an ambiguity as to whether the condemnation or conveyance caused the lease to automatically terminate or whether a second condition must also be met, i.e., “and should said condemnation or conveyance either restrict the ability of the Lessee to maintain its business on the premises.”

The provision in the lease for automatic termination upon certain things occurring was a condition subsequent agreed to by the parties that would cause the lease to terminate with no further duties or obligations on any party. “No precise technical words are required to create a condition subsequent.” Munford, Inc. v. C & S Nat. Bank, 151 Ga. App. 112, 113-114 (258 SE2d 766) (1979) (sale of alcohol on leased premises violated a condition subsequent of the lease authorizing the lessor to terminate the lease); see also Sheridan v. Crown Capital Corp., 251 Ga. App. 314, 318 (2) (554 SE2d 296) (2001) (condition subsequent to sales contract for satisfactory physical development for commercial shopping center); Fulton County v. Collum Properties, 193 Ga. App. 774, 775 (1) (388 SE2d 916) (1989) (explained condition subsequent which was not in lease). “The law favors conditions to be subsequent rather than precedent and to be remediable by damages rather than by forfeiture.” OCGA § 44-6-41; Sheridan v. Crown Capital Corp., supra at 318; King Indus. Realty v. Rich, 224 Ga. App. 629, 631 (3) (481 SE2d 861) (1997); McDuffie v. Criterion Cas. Co., 214 Ga. App. 818, 821 (449 SE2d 133) (1994). “A condition subsequent to an enforceable contract is a term of the contract within the intent of the parties that the happening or nonoccurrence of an event after the contract becomes binding upon the parties, which, by pre-agreement of the parties, causes the contract to terminate without further duties and obligations on any party.” Sheridan v. Crown Capital Corp., supra at 318; see also Dept. of Human Resources v. Citibank F.S.B., 243 Ga. App. 433, 436-437 (534 SE2d 422) (2000); Charter Investment &c. Co. v. Urban Med. Svcs., 136 Ga. App. 297, 299 (5) (220 SE2d 784) (1975).

Determination of the intent of the parties is the cardinal rule of contract construction. Mut. Life Ins. Co. v. Davis, 79 Ga. App. 336, 339 (1) (53 SE2d 571) (1949). In this case the parties were aware that DOT intended to either buy or take a right-of-way across the front of the property when they entered into the lease. The construction of the contract should “give a reasonable, lawful and effective meaning to all manifestations of [the] intention by the parties rather than an interpretation which leaves a part of such manifestations unreasonable or of no effect.” (Citations and punctuation omitted.) Whitmire v. Colwell, 159 Ga. App. 682, 683 (285 SE2d 28) (1981); see also OCGA § 13-2-2 (4); Bryan v. Brown Childs Realty Co., 252 Ga. App. 502, 509 (556 SE2d 554) (2001); Sheridan v. Crown Capital Corp., supra at 316; Rice v. Huff, 221 Ga. App. 592, 593 (1) (472 SE2d 140) (1996). “When it is possible to do so without contravening any rule of law, the courts will construe a contract as binding on both the parties.” Good Roads Machinery Co. v. Neal & Son, 21 Ga. App. 160, hn. 3 (93 SE 1018) (1917). The contract must be construed as a whole rather than in separate and distinct parts, giving effect to all terms. Sage Technology v. NationsBank N.A. South, 235 Ga. App. 405, 407 (1) (509 SE2d 694) (1998). Generally, except where the terms are clear and unambiguous, the law will not construe the contract so that one party has the right to destroy the contract simply in their discretion. Finlay v. Ludden & Bates Southern Music House, 105 Ga. 264, 267 (31 SE 180) (1898); Sheridan v. Crown Capital Corp., supra at 316. Plaintiff wants this court to find that both sentences of the condition subsequent gave the lessee absolute discretion to terminate the lease.

To construe “should said condemnation or conveyance either restrict the ability of the Lessee to maintain its business on the premises” as granting the lessee discretion over termination means that the automatic termination provision does not act, in fact, as a condition subsequent as it clearly states. Such construction also causes this ambiguous discretionary language to contradict the following sentence which clearly and unambiguously grants a discretionary right to elect either to terminate or to remain prior to the condition subsequent occurring of sale or condemnation. Further, the condition subsequent providing for automatic termination in the first sentence conflicts with the discretionary right in the second sentence to continue or to terminate by the lessee, i.e.,

[additionally, Lessee shall have the sole and exclusive right and remedy to terminate this lease at any time upon thirty days notice to Lessor of his desire to terminate said lease, in the event any actual or proposed condemnation proceedings shall, in the Lessees [sic] opinion, create such inconvenience, hindrance or total inability to transact business on the leased premises, the Lessee deems it necessary to vacate said premises.

The discretionary right of election in the lessee to terminate or to stay arose prior to any condemnation or sale under threat of condemnation, because in the second sentence, it arose “in the event any actual or proposed condemnation proceedings”; this election could be exercised on any mere threat of condemnation prior to any taking upon 30 days notice. The order of the sentences should be reversed to give each effect.

The clear discretionary right to elect in the second sentence must be read to precede the condition subsequent’s automatic termination upon condemnation or sale in the first sentence. The second sentence gave an absolute discretion to the lessee to elect to stay or to terminate. The first sentence cannot be read to contain a qualified discretion as appellant argues, because the language “and should said condemnation or conveyance either restrict the ability of Lessee to maintain its business on the premises” was an absolute discretionary right; such construction would make the first sentence qualifiedly discretionary and the second sentence absolutely discretionary, which would be redundant. Thus, for the automatic termination in the first sentence to have meaning, it applied if the lessee failed or refused to make a prior election, as in this case, because there was not 30 days between the execution and the sale; therefore, the condition subsequent occurred prior to any election. Thus, plaintiff had to make an election to stay or to terminate the lease prior to the condition subsequent occurring, i.e., condemnation or sale. This discretionary right gave the plaintiff more time to determine a course of action when condemnation or sale was threatened. However, the failure to either elect to stay or to terminate prior to sale or condemnation resulted in the automatic termination of the lease upon sale or condemnation, because the contract treated a nonelection as “restrict[ing] the ability of Lessee to maintain its business on the premises.” Thus, the sentences are reversed in order and effect; all provisions of the contract are given a reasonable and rational effect, with the second sentence having effect first and the first sentence providing a condition subsequent where no election has been made.

Therefore, the condition subsequent terminated the lease when it occurred after the plaintiff failed to make an election whether to terminate or. to stay. Termination or abrogation of a contract by a condition subsequent has the effect of a mutual rescission, because it is a term agreed to by the parties to bring the contract to an end upon the occurrence of the condition. The parties were returned to their status quo ante or as nearly as possible. GCA Strategic Investment Fund v. Joseph Charles & Assoc., 245 Ga. App. 460, 463 (1) (537 SE2d 677) (2000) (partial rescission of a contract denied); Southern Prestige Homes v. Moscoso, 243 Ga. App. 412, 417 (4) (532 SE2d 122) (2000) (rescission of a contract is a complete abrogation of the contract). Thus, the effect of termination is a complete abrogation of the contract. Southern Prestige Homes v. Moscoso, supra at 412.

(c) Since the March 2, 1998 lease terminated automatically on March 27,1998, with the occurrence of the condition subsequent, i.e., sale, the June 5, 1998 amendment had no legal effect on the terminated lease. See generally Southern Prestige Homes v. Moscoso, supra at 412 (mutual rescission of a contract is a complete abrogation of the contract).

Since the parties intended to obligate themselves by mutual agreement when they executed the amendment, the amendment became a new lease between Emanuel Tractor and Roberts by incorporating the March 2, 1998 lease by reference, which substituted a new party and had a different property subject to the lease. Thomas v. Garrett, 265 Ga. 395, 396 (1) (456 SE2d 573) (1995). The written executed amendment became the new lease. OCGA § 13-4-4; Cloud v. Ga. Central Credit Union, 214 Ga. App. 594, 596 (1) (448 SE2d 913) (1994).

If a contract is terminated, then any subsequent amendment does not have retroactive application to breathe life into a dead instrument, because the earlier contract has been abrogated. Southern Prestige Homes v. Moscoso, supra at 412. Legally, the contract ceased to exist. Id. New parties by the amendment entered into a new agreement, which binds them as different parties; there could be no merger of the different leases, i.e., March 2, 1998, and June 5, 1998. Object Technologies v. Marlabs, Inc., 246 Ga. App. 202, 203 (2) (540 SE2d 216) (2000); see also Holmes v. Worthey, 159 Ga. App. 262, 266-267 (282 SE2d 919) (1981), aff’d, Worthey v. Holmes, 249 Ga. 104 (287 SE2d 9) (1982). However, if the subject of the lease has changed, 1. e., the property is less, then the new agreement applies only to the land then owned by the lessor and cannot burden any purchaser of the out-take with the prior lease.

Further, a contract cannot be subsequently modified where it materially affects the interests of a third party acquired prior to such amendment. McMurray v. Bateman, 221 Ga. 240, 253 (144 SE2d 345) (1965) (a contract can be altered by subsequent agreement except where the interest of a third party is involved); Webb v. Whitley, 114 Ga. App. 153, 158 (4) (150 SE2d 261) (1966). The subject of the March 2, 1998 lease changed prior to the amendment with Roberts’ sale of part of the land to DOT.

2. Division 1 controls and makes moot enumerations of error 2 through 9.

Judgment affirmed.

Barnes, J., concurs. Smith, P. J., concurs specially. Ellington, J., disqualified.

Smith, Presiding Judge,

concurring specially.

While I agree with the conclusion of the majority that the decision of the trial court should be affirmed, I do not agree with the basis for affirmance stated in the majority nor all that is said in that opinion. I therefore concur specially.

When Emanuel Tractor Sales, Inc. (ETS) filed its complaint in January 2000 against the DOT for inverse condemnation, ETS sought damages from the DOT for the forced relocation of its business, for the increased rent and business losses attributable to the forced relocation, and compensation “for the taking and damaging of Plaintiff’s leasehold interest in the property, including relocation expenses.” However, it is undisputed that the DOT did not begin construction on the highway project until August 1999. It is also undisputed that ETS had relocated its business in January 1998, moving from 105 East Street to property owned by Rountree on Electric Road. By August 1999, ETS had ceased paying rent to Roberts, and, in fact, had not made any rent payments to Roberts after June 1998. Thus, before August 1999, the only action taken by the DOT that theoretically could have impacted ETS’s alleged leasehold interest, even indirectly, was the DOT’s purchase of the 0.188 acres from Roberts on March 27, 1998. From the date of that purchase in March 1998 until August 1999, the DOT did not undertake any construction work on its project.

As a general rule, a leaseholder is entitled to receive compensation when his interest is taken or damaged for a public purpose. Bill Ledford Motors v. Dept. of Transp., 225 Ga. App. 548, 549 (484 SE2d 510) (1997). But the losses suffered by a business owner who abandons his leasehold interest in property based on anticipated condemnation are not compensable because such losses do not result from an exercise of eminent domain. Josh Cabaret, Inc. v. Dept. of Transp., 256 Ga. 749, 750 (3), (5) (353 SE2d 346) (1987). See Collins v. MARTA, 163 Ga. App. 168, 170 (6) (291 SE2d 742) (1982) (full concurrence in Division 6) (property owner who was not able to rent houses on his property due to anticipated condemnation did not sustain a compensable loss). Simply stated, the rule is this: “Alleged losses or diminution in the fair market value of property attributable to an anticipated condemnation are not compensable elements of damage or a taking resulting from the exercise of eminent domain authority.” (Citations omitted.) Thompson v. Dept. of Transp., 209 Ga. App. 353, 354 (1) (433 SE2d 623) (1993).

Even assuming solely for the sake of analysis that ETS had a leasehold interest in the remaining property to which Roberts held title — either as a tenant at will or under rights acquired under the amended lease — ETS cannot prevail on its claim for damages. See Josh Cabaret, supra, 256 Ga. at 750 (5). None of the losses allegedly suffered by ETS were the result of the DOT’s exercise of eminent domain authority but were losses incurred in anticipation of the exercise of that power. See Five Forks, LLC v. Dept. of Transp., 250 Ga. App. 157, 160 (550 SE2d 715) (2001). Therefore, as a matter of law, the damages sought by ETS are not compensable. See MARTA v. Fountain, 256 Ga. 732, 734 (352 SE2d 781) (1987). Because a summary judgment right for any reason will be affirmed, Costrini v. Hansen Architects, 247 Ga. App. 136, 138 (1) (543 SE2d 760) (2000), I concur specially only in affirming the judgment.

Decided August 2, 2002

Reconsideration denied September 13, 2002

Ruffin & Dell, Charles L. Ruffin, for appellant.

Thurhert E. Baker, Attorney General, R. O. Lerer, Senior Assistant Attorney General, Smith & Jenkins, Wilson R. Smith, Dwyer, White & Sapp, Anne W. Sapp, for appellee.

       The party offering secondary evidence must first prove the existence of the primary evidence before the secondary evidence may be considered for admission. Toco Hills, Inc. v. Rollins Protective Svcs. Co., 179 Ga. App. 823, 826 (1) (348 SE2d 65) (1986); Growth Properties of Fla. v. Wallace, 168 Ga. App. 893, 898-899 (3) (310 SE2d 715) (1983); Silvey v. Wynn, 102 Ga. App. 283 (115 SE2d 774) (1960). The 1998 lease failed to prove the terms of either a 1982 lease or a 1987 renewal lease; in fact, the amendment to the 1998 lease materially conflicted with the 1998 lease. Thus, the trial court in the exercise of discretion did not err in rejecting both the 1998 lease and amendment as secondary evidence of an earlier lease.

       Ambiguity exists when a contract is uncertain in its meaning, duplicitous, and indistinct; or when a word or phrase may be reasonably understood in more than one way. Verret v. ABB Power T & D Co., 237 Ga. App. 492, 493 (1) (515 SE2d 435) (1999); accord Sheridan v. Crown Capital Corp., 251 Ga. App. 314, 315 (554 SE2d 296) (2001). To determine if there is an ambiguity, the trial court must look to the four corners of the agreement to determine the meaning employed. McCollum v. O’Dell, 241 Ga. App. 6, 9 (2) (525 SE2d 721) (1999); Sheridan v. Crown Capital Corp., supra at 315. After identifying an apparent ambiguity, the trial court must seek to resolve the ambiguity through application of the rules of contract construction. McCollum v. O’Dell, supra at 9; Sheridan v. Crown Capital Corp., supra at 315.
      As a matter of law, the trial court must ascertain the intent of the parties from the' agreement through the rules of construction. OCGA §§ 13-2-1; 13-2-2; 13-2-3; Early v. Kent, 215 Ga. 49, 50 (1) (108 SE2d 708) (1959); Farm Supply Co. &c. v. Cook, 116 Ga. App. 814, 816 (1) (159 SE2d 128) (1967). As a matter of law, the trial court had to engage in a three-step analysis: (1) the court must decide if the contract language is unambiguous, and if so, the court enforces the contract’s terms; (2) if the contract appears to be ambiguous, then the court must apply the rules of contract construction to resolve the ambiguity; and (3) if the ambiguity remains after use of the construction rules, then the meaning of the contract must be decided by a jury. Caswell v. Anderson, 241 Ga. App. 703, 705 (527 SE2d 582) (2000).


author: Phipps, Judge.

text:
    A02A1460.
    THE STATE v. SERIO.
    (571 SE2d 168)
   Phipps, Judge.

The State appeals an order of the State Court of Gwinnett County granting Sarah Jane Serio’s motion to transfer her DUI case to the Recorder’s Court of Gwinnett County. The State argues that the transfer order is invalid because, among other things, Serio’s motion was untimely and the state court lacked authority to transfer the case. We agree and reverse.

On July 26, 2001, Serio was arrested in Gwinnett County and cited for DUI and failure to maintain lane. The citations ordered her to answer the charges in the Recorder’s Court of Gwinnett County. At her arraignment on October 9, Serio waived her right to a jury trial. On October 11, the Gwinnett County Solicitor-General filed an accusation in the State Court of Gwinnett County charging Serio with DUI and failure to maintain lane. On October 12, the solicitor-general moved for an order of nolle prosequi on the charges pending in the recorder’s court, and that court granted the motion the same day.

Arraignment in the state court was scheduled for November 29, but on November 19 Serio filed a waiver of formal arraignment. On December 10, she filed a motion to remand or transfer the case back to the recorder’s court. The state court granted the motion, finding as follows:

The Recorder’s Court has the jurisdiction and the capability to provide this Defendant with her requested bench trial. Defendant Serio never filed a demand for jury. OCGA § 40-6-376 (a) provides that the [prosecutor] may “charge” a defendant with either a violation of the state statute or of the local ordinance. However, the State may not prosecute a defendant in both the Recorder’s Court and the State Court at the same time. The accusation in the within case was improper while the Recorder’s Court of Gwinnett County maintained jurisdiction over this Defendant and the charges which form the basis for this accusation. In addition, the intent of OCGA § 40-6-376 (a) is to allow the State to prosecute traffic charges in the lowest court appropriate where it is more cost effective to the citizens of this County and State. It is not for the purpose of allowing the State to “judge shop.”

The State then appealed.

1. Serio has moved to dismiss the appeal for lack of jurisdiction. The State contends that jurisdiction is proper under OCGA § 5-7-1 (a) (1), which grants the State the right to appeal in a criminal case “[firom an order, decision, or judgment setting aside or dismissing any indictment, accusation, ... or any count thereof.” According to the State, the state court’s order transferring the case to recorder’s court effectively set aside or dismissed the state court accusation against Serio and precluded her prosecution there. Serio argues that the order did not end Serio’s prosecution, but merely transferred it to a different court.

We agree with the State. Although the state court’s order, as written, simply transferred the case to recorder’s court, we examine the substantive effect of the order, not the label it uses. The substantive effect of the transfer was to terminate the prosecution of Serio in state court. The charges against her remain pending in recorder’s court, but the state court accusation has been set aside or dismissed. Thus, this appeal is proper under OCGA § 5-7-1 (a) (1), and we deny the motion to dismiss.

Serio’s reliance on State v. Creel is misplaced. In Creel, the State appealed from a trial court order placing a criminal case on the dead docket. We held that OCGA § 5-7-1 (a) (1) did not supply jurisdiction because dead docketing does not preclude future prosecution of a case in the same court. The order in this case, by contrast, does preclude prosecution of Serio in state court.

2. The State claims that the state court’s order transferring the case to recorder’s court was improper for a number of reasons. We address two of the State’s arguments.

(a) First, the State contends that Serio’s motion to remand or transfer was untimely because it was not filed at or before arraignment. Uniform Superior Court Rule 31.1 provides that “[a] 11 motions, demurrers, and special pleas shall be made and filed at or before time of arraignment, unless time therefor is extended by the judge in writing prior to trial.” Serio’s state court arraignment was scheduled for November 29, but she did not file the motion to remand or transfer until December 10. She did not seek an extension of time from the state court for filing pre-trial motions, and no written extension appears in the record. “USCR 31.1 does not allow exceptions; its flexibility is provided by when and how an extension of time for filing may be granted. [Cit.]” When faced with an untimely pre-trial motion, the court may dismiss the motion or entertain a request by the defendant to enter a written order accepting the late filing. By doing neither, the court abused its discretion.

Serio claims that the State waived its right to challenge the timeliness of her motion by not raising the issue in the state court. Although the State did not raise the issue before the court granted Serio’s motion on January 7, 2002, the State did file a “Motion for Speedy Reconsideration” arguing, among other things, that Serio’s motion was untimely. Moreover, in Davis v. State, our Supreme Court ruled that a late-filed special demurrer was properly denied under USCR 31.1, even though the trial court’s ruling was not based on USCR 31.1 and the opinion does not indicate that the State ever raised the issue. For these reasons, we cannot agree that the State waived its challenge to the timeliness of Serio’s motion.

Serio also argues that the only motions to which USCR 31.1 applies are motions to suppress. Again, we cannot agree. By its terms, the rule applies to “[a]ll motions.” Moreover, we have affirmed denial of pre-trial motions, other than motions to suppress, that were not timely filed under USCR 31.1. Although Serio protests that a strict construction of USCR 31.1 might “preclude all litigants from filing motions seeking a particular action to be taken by the court as a particular need arises,” she cannot claim that she was unaware before arraignment of the circumstances that prompted her motion to remand or transfer. The State served Serio with notice of the nolle prosequi and state court accusation on October 12, more than six weeks before her state court arraignment date. Thus, Serio had ample time to comply with USCR 31.1.

Next, Serio argues that it would be unfair to hold that her motion was untimely under USCR 31.1 because the State’s motion for an order of nolle prosequi in the recorder’s court was not filed until three days after her scheduled arraignment in that court. If her motion is untimely, Serio reasons, then so was the State’s. However, the timeliness of an entry of nolle prosequi is governed by OCGA § 17-8-3, not by USCR 31.1. As the State complied with that statute, its motion for entry of nolle prosequi was timely.

Finally, Serio asserts that it is common practice in the State Court of Gwinnett County to allow defendants to file pre-trial motions up to ten days after arraignment, and that her motion was filed within that extended period. But Serio has submitted no evidence that such a practice exists or that it was promulgated in accordance with USCR 1.2, which limits the enactment of local rules that conflict with the Uniform State Court Rules.

Thus, we find that Serio’s motion to remand or transfer was untimely filed and that the state court erred in considering it.

(b) The State also argues that, even if Serio’s motion was timely, the state court had no authority to grant it. The State contends that it had discretion to discontinue Serio’s prosecution in recorder’s court and accuse her in state court. Serio, on the other hand, argues that she has the right to select the forum in which she is prosecuted and that the State is guilty of unethical forum shopping.

The Recorder’s Court of Gwinnett County was created by a 1972 act of the General Assembly. That act gave the court jurisdiction to hear cases involving state misdemeanor traffic offenses and violations of Gwinnett County ordinances. Because the recorder’s court does not impanel juries, its jurisdiction over state misdemeanor traffic offenses is limited to cases in which — as here ;— the defendant waives the right to a jury trial. If the defendant demands a jury trial, “[t]he case is then forwarded to the solicitor’s office for docketing in [the] state court,” which also has jurisdiction to hear cases involving misdemeanor state traffic offenses.

Under OCGA § 40-6-376 (a), any violation of state traffic law which also is a violation of a local ordinance may, at the prosecutor’s discretion, be charged as a violation of either the state statute or the local ordinance. Under OCGA § 40-6-376 (b), if an offense is charged under a local ordinance, but also constitutes a violation of state law, the defendant may request a transfer of the charge from a lower court to “the appropriate state tribunal.” If the defendant makes such a request, a city or recorder’s court judge shall “bind [the defendant’s] case over to the appropriate state tribunal,” after fixing bond and determining whether there was probable cause for arrest.

Serio’s alleged offenses were cited as violations of state laws, not local ordinances. Thus, OCGA § 40-6-376 (b), which applies only when an offense is charged as a local ordinance violation, does not apply here. Serio cannot rely on that Code section for her asserted right to choose the forum in which she is prosecuted.

Because Serio waived her right to a jury trial, jurisdiction was proper in either the recorder’s court or the state court. We find no authority prohibiting the prosecutor from shifting Serio’s prosecution to state court, where the charges unquestionably could have been brought in the first place. On the contrary, this practice apparently was approved in Mattarochia v. State. There, the State initially brought DUI charges against the defendant in city court under a local ordinance, but the charges were later bound over to state court and pursued as state law violations, presumably at the solicitor’s request. The defendant opposed the transfer, but this court held that it was proper because “[t]he solicitor’s decision to charge [the defendant] with state violations was duly authorized by OCGA § 40-6-376 (a).”

In this case, the prosecutor was entitled, with the permission of the recorder’s court, to enter a nolle prosequi of the charges pending there against Serio. The nolle prosequi rendered those charges dead, but it did not prevent the prosecutor from reaccusing Serio for the same offenses. And, contrary to the finding of the state court, the fact that charges against Serio were pending in both recorder’s court and state court for one day does not render the State’s conduct “improper.”

Serio cites Kolker v. State for the proposition that a municipal court has exclusive jurisdiction when a defendant who is charged in that court with a state offense waives the right to a jury trial. But Kolker merely holds that jurisdiction is proper in the municipal court under such circumstances, not that it is exclusive. Kolker does not address the situation presented here — where the prosecutor, having elected to initiate charges in one court that has jurisdiction, later drops those charges and pursues them in a different court that also has jurisdiction.

Serio also cites In the Interest of J. D. for the proposition that “[w]here courts have concurrent jurisdiction, the first court to take jurisdiction will retain it.” That case, however, goes on to state that exclusive jurisdiction is subject to the right of either court to transfer the case to the other. We find that such jurisdiction also is subject to the statutory right of the prosecutor to pursue the charges in either court.

Serio argues that permitting the prosecutor to exercise such authority will invite abuse. But no abuse has been shown here. Serio complains that the State’s actions have unreasonably delayed the resolution of her case, but the record shows that the prosecutor filed the accusation in state court just two days after her arraignment in recorder’s court. Serio also complains that the prosecutor engaged in unethical forum and judge shopping, but OCGA § 40-6-376 (a) expressly grants the prosecutor the discretion to select the forum. And despite Serio’s claims, nothing in the record suggests that the prosecutor selected, or had the ability to select, which judge would hear her case in state court. In short, we conclude that the prosecutor did not act abusively or improperly in this case.

Because the state court had no basis for transferring this case back to recorder’s court, we reverse.

Decided August 27, 2002

Reconsideration denied September 13, 2002

Gerald N. Blaney, Jr., Solicitor-General, Gary S. Vey, Jonathan D. Aurelia, Assistant Solicitors-Géneral, for appellant.

Monte K. Davis, for appellee.

3. Serio’s motion to supplement the record and for sanctions against the prosecutor is denied.

Judgment reversed.

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

       In light of our decision, we need not address whether the appeal also would be proper, as the State claims, under OCGA § 5-7-1 (a) (5).

       216 Ga. App. 394 (454 SE2d 804) (1995).

       Id. at 395.

       The Uniform Rules for superior courts are applicable in state courts unless specifically stated otherwise by the Uniform State Court Rules. See Woody v. State, 229 Ga. App. 823, 825 (2) (494 SE2d 685) (1997).

        Davis v. State, 272 Ga. 818, 819 (1) (537 SE2d 327) (2000).

        State v. Grandison, 192 Ga. App. 473, 474 (385 SE2d 139) (1989).

       See id.

       Supra.

       See Mills v. State, 187 Ga. App. 79, 80 (2) (369 SE2d 283) (1988) (affirming denial of motion for funds to retain medical expert because it was not filed at or before arraignment); Lewis v. State, 186 Ga. App. 349, 351 (2) (367 SE2d 123) (1988) (trial court did not err in refusing to consider motion to quash indictment that did not comply with USCR 31.1).

       See discussion in Division 2 (b), infra.

       We cannot accept Serio’s factual assertions as evidence. See State v. Ganong, 221 Ga. App. 250 (470 SE2d 794) (1996).

       See Ga. L. 1972, p. 3125.

       Ga. L. 1972, p. 3126; Wojcik v. State, 260 Ga. 260 (392 SE2d 525) (1990) (holding that recorder’s court’s exercise of jurisdiction over state misdemeanor traffic offenses is constitutional).

       See Ellsworth v. State, 232 Ga. App. 164 (500 SE2d 642) (1998).

       Id.

       See OCGA § 15-7-4 (a) (1); Diamond v. State, 151 Ga. App. 690, 691 (261 SE2d 434) (1979).

       OCGA § 40-6-376 (a) specifically excepts hit and run and vehicular homicide, which must be charged as state offenses.

       OCGA § 40-6-376 (b).

       200 Ga. App. 681, 682 (1) (409 SE2d 546) (1991).

       Id. We note, however, that whether the solicitor charged the violations under a local ordinance or under state law does not resolve the issue of whether the solicitor was entitled to shift the forum for prosecuting those charges.

       See OCGA § 17-8-3; Buice v. State, 239 Ga. App. 52, 53 (1) (520 SE2d 258) (1999).

       See State v. Sheahan, 217 Ga. App. 26, 28 (2) (456 SE2d 615) (1995).

       See Buiee, supra.

       See State v. Cooperman, 147 Ga. App. 556, 557 (1) (249 SE2d 358) (1978).

       260 Ga. 240 (391 SE2d 391) (1990).

       195 Ga. App. 801 (395 SE2d 280) (1990).

       (Citations and punctuation omitted.) Id. at 801 (1).

       See id.

       See OCGA § 40-6-376 (a).

       See Moody v. State, 256 Ga. App. 65 (567 SE2d 709) (2002) (state court did not have authority to transfer DUI case back to municipal court after it had been bound over to state court).


text:
    A02A1856.
    JOINER v. THE STATE.
    (571 SE2d 430)
   Eldridge, Judge.

A Fayette County jury convicted Antoine Joiner of aggravated child molestation and statutory rape against a 12-year-old girl. The superior court sentenced him consecutively to 50 years to serve. On appeal, Joiner contends that the evidence was insufficient to authorize his conviction for statutory rape because the State failed to prove that the victim was not his spouse. Joiner further contends that the superior court’s child molestation charge was error because it charged the entire Code section defining child molestation, exceeding the scope of the indictment, i.e., although the indictment charged Joiner with aggravated child molestation by an act involving sodomy, the superior court instructed the jury that child molestation could arise out of an act resulting in physical injury to the victim as well. Finding no error, we affirm. Held:

1. Joiner challenges the sufficiency of the evidence regarding his statutory rape conviction only with respect to the status of his victim as not his spouse. “A person commits the offense of statutory rape when he or she engages in sexual intercourse with any person under the age of 16 years and not his or her spouse.” OCGA § 16-6-3 (a).

While there appears to be no direct evidence in the record showing that Joiner’s victim was not his spouse, “[d]irect evidence is not required to support a conviction.” Toney v. State, 253 Ga. App. 231, 233 (2) (558 SE2d 780) (2002), citing Hayes v. State, 249 Ga. App. 857, 860 (1) (549 SE2d 813) (2001). Moreover,

[a] conviction may be based upon circumstantial evidence if the proved facts are not only consistent with the hypothesis of guilt, but exclude every other reasonable hypothesis but the guilt of the accused. When the evidence meets this test, circumstantial evidence is as probative as direct evidence, and whether this burden has been met is a question for the jury. When the jury is authorized to find that the evidence, though circumstantial, excluded every reasonable hypothesis except the defendant’s guilt, the verdict will not be disturbed unless the verdict is insupportable as a matter of law. Further, while circumstantial evidence must exclude every other reasonable hypothesis but the defendant’s guilt, the evidence need not exclude every inference or hypothesis.

(Citations, punctuation and emphasis omitted.) Id.

Upon pertinently reviewing the evidence in the light most favorable to the jury’s verdict, we conclude that the jury could reasonably have found from circumstantial evidence excluding every reasonable hypothesis save that of Joiner’s, guilt, that the victim was not Joiner’s wife, this upon uncontroverted evidence of record showing that Joiner’s relationship to the victim was not more than that of friend and occasional babysitter in that the victim, asked on direct if she knew Joiner, testified that he was her mother’s “boyfriend.” Given the foregoing, and Joiner otherwise conceding the sufficiency of the State’s proof of statutory rape, the evidence was sufficient to authorize a rational trier of fact to find Joiner guilty of statutory rape as charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. “A person commits the [offense] of aggravated child molestation when he commits an offense of child molestation which physically injures the child or involves an act of sodomy. OCGA § 16-6-4 (c).” Ceasar v. State, 239 Ga. App. 752, 753 (2) (521 SE2d 866) (1999). Joiner was indicted for aggravated child molestation in this case upon having the victim place Joiner’s penis in the victim’s mouth.

Although the superior court’s aggravated child molestation charge was erroneous to the extent that it charged a portion of the child molestation statute which was inapplicable as beyond the indicted offense, that is aggravated child molestation as committed upon physical injury to the victim, such error was harmless. “It is a fundamental rule in Georgia that jury instructions must be read . . . as a whole in determining whether the charge contained error.” (Citation and punctuation omitted.) Roker v. State, 262 Ga. 220, 222 (4) (416 SE2d 281) (1992); Ceasar v. State, supra at 754.

So reading the jury instructions, we find that the superior court instructed the jury to apply its instructions only as applicable to the offenses charged by the indictment; read the aggravated child molestation count of the indictment to the jury; instructed the jury that the State had the burden of proving “every material allegation of the indictment”; and instructed the jury that it could convict Joiner of aggravated child molestation only upon finding beyond a reasonable doubt that he committed such offense as alleged in the indictment.

Decided September 13, 2002.

Patterson & Patterson, Jackie G. Patterson, for appellant.

William T. McBroom III, District Attorney, Daniel A. Hiatt, Assistant District Attorney, for appellee.

Under these circumstances, no danger existed that the charge might have misled the jury to believe that it could convict Joiner of aggravated child molestation based on facts not charged in the indictment. See Hilliard v. State, 226 Ga. App. 478, 482-483 (2) (487 SE2d 81) (1997); McClain v. State, 220 Ga. App. 474, 475 (2) (469 SE2d 756) (1996). Accordingly, this claim of error is likewise without merit.

Judgment affirmed.

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


text:
    A02A1924.
    CHILDERS v. THE STATE.
    (571 SE2d 420)
   Phipps, Judge.

Glenn Childers was convicted of child molestation and aggravated sexual battery based on evidence that he penetrated his 11-year-old stepdaughter, D. G.’s, vagina with his fingers and touched her between her legs for the purpose of satisfying his sexual desires. In this appeal, Childers complains of limitations placed by the trial court on his cross-examination of D. G.’s mother (his former wife). He also challenges the sufficiency of the evidence, and he contends that the trial court erred in failing to merge the offenses. Finding no merit in any of these claims of error, we affirm.

1. On appeal from a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict to determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offenses beyond a reasonable doubt.

D. G. testified that one night when her mother was at work, she awoke to discover Childers in her bedroom. According to D. G., he kneeled down beside her bed and touched her vagina. She testified that he pulled her panties down around one of her ankles, placed her feet on his shoulders, and inserted his fingers into her vagina, causing it to “hurt bad.” When asked whether he touched her anywhere else, D. G. responded that he touched her “[d]own in between my legs.” D. G. thought Childers stopped because he heard her eight-year-old brother stirring in the adjacent bedroom. After Childers left D. G.’s bedroom, she told her brother what had happened. The two children remained together in the same room until their mother came home. They told her what had happened, and she confronted Childers. Within the next few days, other relatives were informed, and the police were called. After law enforcement and Department of Family & Children Services (DFACS) investigators interviewed D. G., her brother, their mother, and Childers, criminal charges were brought.

Although D. G. told a DFACS investigator that she had tried to get Childers to stop, she testified that she had pretended to be asleep during the episode. Otherwise, her out-of-court statements were consistent with her trial testimony. D. G.’s brother testified at trial. He confirmed that he had seen Childers leaving D. G.’s bedroom on the night in question, and that D. G. had come into his room and told him that Childers had molested her.

After the incident was reported, D. G. was examined by an emergency room physician. Although he found no injury to the hymen, he testified that such finding was not inconsistent with digital penetration of the vagina.

This evidence was sufficient under the standard of Jackson v. Virginia. It was the function of the jury to resolve any conflicts between D. G.’s out-of-court statements and her trial testimony, as well as the credibility of the witnesses generally. The absence of physical injury did not mandate an acquittal.

2. The court did not err in refusing to merge the offenses.

“Under OCGA § 16-1-6 (1), offenses merge as a matter of fact only if one of them is established by proof of the same or less than all of the facts used to prove the other.” Childers’s conviction of aggravated sexual battery is supported by evidence that he penetrated D. G.’s vagina with his fingers, and his conviction of child molestation is supported by evidence that he also touched her down in between her legs. Consequently, the convictions are supported by separate facts, and there is no merger.

Decided September 13, 2002.

James K. Luttrell, Gregory A. Hicks, for appellant.

Garry T. Moss, District Attorney, Cecelia Harris, Assistant District Attorney, for appellee.

3. The court did not abuse its discretion in limiting Childers’ cross-examination of D. G.’s mother.

She testified that shortly after this incident, she informed Childers that she wanted a divorce, which was finalized before this case was tried. Childers sought to cross-examine his former wife concerning her spending practices during their marriage. Specifically, he sought to show that she had been pocketing her paychecks, and spending his paychecks to pay bills which benefitted her individually rather than satisfying the parties’ joint debts. Childers claimed that this established her motive to concoct these charges against him. The court ruled that Childers could question his former wife concerning their divorce for the purpose of showing their state of feelings toward each other, and that he could cross-examine her as to any offer she might have made to drop the criminal charges in return for a favorable property settlement, but that her prior spending practices were not relevant in this case.

“Generally questions of relevance are within the domain of the trial court.” This case is governed by that general rule. “The trial court may restrict the scope of the cross-examination to matters relevant to the issues being tried, and the results of the exercise of that discretion will not be interfered with on appellate review unless the discretion was manifestly abused.” The court did not abuse its discretion in finding no relevance in the evidence sought to be admitted here.

Judgment affirmed.

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

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

       Supra.

        Watkins v. State, 273 Ga. 307, 309 (1) (540 SE2d 199) (2001).

       See OCGA §§ 16-6-4 (a); 16-6-22.2; compare OCGA § 16-6-4 (c) (showing that although physical injury is an element of aggravated child molestation, it is not an element of child molestation or aggravated sexual battery).

       (Punctuation and footnote omitted.) Shamsuddeen v. State, 255 Ga. App. 326, 327 (2) (565 SE2d 544) (2002).

       See Seidenfaden v. State, 249 Ga. App. 314, 319 (4) (547 SE2d 578) (2001); compare Shamsuddeen v. State, supra.

       (Punctuation and footnote omitted.) Carson v. State, 250 Ga. App. 876, 877 (2) (553 SE2d 312) (2001).

       Compare Spitzberg v. State, 233 Ga. App. 848, 849 (1) (506 SE2d 143) (1998) (where there is conflicting evidence in criminal cases, it is reversible error to refuse to permit the State’s witness on cross-examination to testify that he has damage suit pending based on same facts involved in criminal case).

       (Citation, punctuation and footnote omitted.) Wheeler v. State, 212 Ga. App. 638, 639 (2) (442 SE2d 906) (1994).