author: Ruffin, Judge.

text:
    A98A0838.
    ELLISON v. THE STATE.
    (504 SE2d 779)
   Ruffin, Judge.

A jury found Shawn Ellison guilty of selling cocaine, possession of cocaine with intent to distribute and possession of cocaine with intent to distribute within 1,000 feet of a government housing project. Ellison appeals, challenging the sufficiency of the evidence. For reasons which follow, we affirm.

“ ‘On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the appellant (defendant here) 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, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)]. 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.’ [Cit.]” Shabazz v. State, 229 Ga. App. 465 (1) (494 SE2d 257) (1997).

Viewed in this light, the evidence at trial showed that Hall County Deputy Sheriff Marcus Neville and other deputies conducted surveillance of Ellison’s residence to obtain evidence of drug activity. Living with Ellison at the house were his sister, Sylvia Martin, her children and her fiancé, Michael Rucker.

During their surveillance, the deputies observed what appeared to be a drug transaction in the front yard. An individual, later identified as Keith Caldwell, parked his pickup truck in front of the house. Ellison exited the house, and after a brief conversation with Caldwell, re-entered. A short time later Ellison returned to the front yard where Deputy Neville observed what he described as a hand-to-hand transaction. According to Neville, Ellison appeared to hand something to Caldwell, who in return handed what appeared to be money to Ellison. Caldwell then returned to his truck and drove away.

Following the apparent transaction, Neville called other deputies on his radio and provided a description of Caldwell’s truck. The other deputies stopped Caldwell and eventually discovered a small amount of crack cocaine in the rim of his hat. Caldwell told the deputies that he purchased the cocaine from Ellison for $20.

Later that day, several deputies executed a search warrant on Ellison’s residence. When they entered the home, they found Ellison in the home’s only bathroom. During their search, the deputies found a plastic bag containing four pieces of crack cocaine in the bathroom medicine cabinet and another container also holding four pieces of crack cocaine on top of the refrigerator. Finally, in Ellison’s bedroom, a deputy found a picture identification card of Ellison, a razor blade which one deputy testified is often used in cutting crack cocaine for distribution, and a small ziplock bag containing what appeared to be cocaine residue.

While the deputies were still at the residence, Michael Rucker returned home. Rucker informed the deputies that the cocaine found on top of the refrigerator belonged to him. As for the cocaine in the bathroom, Rucker testified that he thought he told the deputies that it, too, was his. In any event, Rucker subsequently pled guilty to possession of all the cocaine found in the house. And, at Ellison’s trial, Rucker testified that he owned the cocaine found on the refrigerator, the cocaine found in the bathroom and the razor blade found in Ellison’s bedroom. Rucker further stated that Ellison did not have any interest in any of the cocaine found in the house.

Ellison also testified in his own behalf at trial. During his testimony he denied selling cocaine to Caldwell and further stated that he did not own any of the cocaine found in the residence.

1. Ellison asserts there was insufficient evidence establishing that he sold cocaine to Caldwell. We disagree. In light of Deputy Neville’s eyewitness testimony concerning the transaction, Caldwell’s unequivocal statement that he purchased the cocaine he possessed from Ellison, the deputies’ recovery of the cocaine from Caldwell and a videotape of the transaction played to the jury, a rational trier of fact could have found Ellison guilty beyond a reasonable doubt of selling cocaine. See Jackson v. Virginia, supra; McQueen v. State, 228 Ga. App. 732 (1) (492 SE2d 720) (1997).

2. Ellison also asserts the circumstantial evidence showing he possessed the cocaine found in the residence was insufficient to support his convictions for possession with intent to distribute and intent to distribute within 1000 feet of a government housing project.

In prosecuting Ellison for these offenses, the State relied on circumstantial evidence to show constructive possession of the cocaine found in the house because there was no evidence establishing that he was in actual possession of the contraband. See Reid v. State, 212 Ga. App. 787, 788 (442 SE2d 852) (1994). “ ‘(A) finding of constructive possession must be based upon some connection between the defendant and the contraband other than spatial proximity. Evidence of mere presence at the scene of the crime, and nothing more to show participation of a defendant in the illegal act, is insufficient to support a conviction.’ [Cit.]” Noble v. State, 225 Ga. App. 470, 471 (484 SE2d 78) (1997). Similarly, evidence merely showing that contraband was found in the residence occupied by the defendant is insufficient to support a conviction if it affirmatively appears from the evidence that other persons had equal access to the contraband and therefore an equal opportunity to commit the offense. Andrews v. State, 219 Ga. App. 808, 809 (1) (466 SE2d 909) (1996). “And, where as in this case, the conviction is based on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” (Citations and punctuation omitted.) Noble, supra at 471.

“ ‘Whether or not in a given case circumstances are sufficient to exclude every reasonable hypothesis save the guilt of the accused, is primarily a question for determination by the jury. This of necessity is so, for we have no legal yardstick by which we can ordinarily determine what in a given case is a reasonable hypothesis, save the opinion of twelve upright and intelligent jurors. After having heard the witnesses and having observed them testify, they are more capable of judging of the reasonableness of a hypothesis produced by the evidence, or the lack of evidence, and the defendant’s statement, than is a court of law.’ ” Harris v. State, 236 Ga. 242, 244-245 (1) (223 SE2d 643) (1976). It is only where the evidence or a lack of evidence, tested by all human experience, establishes a reasonable hypothesis of innocence, that this Court may declare it so as a matter of law. Id. at 245.

Under this standard, we do not find that the circumstantial evidence in this case established a reasonable hypothesis of innocence as a matter of law. Although Rucker claimed that he had exclusive possession of the contraband, the jurors, who were in the best position to judge Rucker’s credibility, obviously rejected that claim and found that he jointly possessed the cocaine with Ellison. See Chitwood v. State, 166 Ga. App. 62 (1) (303 SE2d 307) (1983); Andrews, supra. Such a finding is certainly supported by the evidence showing that shortly before the deputies searched the house, Ellison had obtained crack cocaine from somewhere inside the residence and sold it to Caldwell in his front yard. And, although Rucker also claimed ownership of the razor blade, which a deputy testified was often used in cutting crack cocaine for distribution, the jury was also authorized to reject this testimony in light of the evidence that the razor blade and a bag containing cocaine residue were found in Ellison’s bedroom. Under these circumstances, we find that the evidence is sufficient to authorize a rational trier of fact to find Ellison guilty beyond a reasonable doubt of possession of cocaine with intent to distribute. See id.; Chitwood, supra; Lush v. State, 168 Ga. App. 740, 743 (9) (310 SE2d 287) (1983).

Decided July 29, 1998.

Leo E. Benton, Jr., for appellant.

Lydia J. Sartain, District Attorney, Leonard C. Parks, Jr., Scott A. Drake, Assistant District Attorneys, for appellee.

3. Finally, we find there was sufficient evidence establishing that Ellison’s residence was located within 1,000 feet of a government housing project. It is well established that a witness may give his opinion regarding distances based on the witness’s observations. Fouts v. Builders Transport, 222 Ga. App. 568, 575 (6) (474 SE2d 746) (1996); Harris v. Collins, 145 Ga. App. 827 (1) (245 SE2d 13) (1978). In this case, Deputy Neville, who engaged in surveillance of the residence and execution of the warrant, testified that the distance to the housing project was “well within two football fields or 600 feet. . . .” Under these circumstances, there was sufficient evidence that the home was located within 1,000 feet of a government housing project.

Judgment affirmed.

Pope, P J., and Beasley, J., concur.


source: Caselaw Access Project

author: Pope, Presiding Judge. Beasley, Judge,

license: Public Domain

text:
    A98A0156.
    GEORGIA POWER COMPANY v. FRANCO REMODELING COMPANY.
    (505 SE2d 488)
   Pope, Presiding Judge.

The sole issue in this case is whether the workers’ compensation exclusive remedy provisions of OCGA § 34-9-11 (a) bar the express indemnity provisions of the High-voltage Safety Act, OCGA § 46-3-40 (b). Based on this Court’s decision in City of Dalton v. Gene Rogers Constr. Co., 223 Ga. App. 819 (479 SE2d 171) (1996), which concluded that “the High-voltage Safety Act [does] not create an exception to the exclusive remedy provision of the Workers’ Compensation Act,” id. at 820, we are constrained to affirm the superior court’s grant of summary judgment to Franco Remodeling.

In July 1993, plaintiffs Salomen Santana, Juan Santillan and Hector Berrios were painting an apartment building and were injured when a metal ladder they were using touched an overhead electric line that was owned and operated by Georgia Power Company. There was no dispute that at the time of the accident, the plaintiffs were working for Franco Remodeling (“Franco”), a subcontractor engaged in a renovation project.

In July 1994, plaintiffs sued Georgia Power and the manager of the apartment complex. Plaintiffs later amended the complaint to include allegations against the owner and owner representative of the property. Plaintiffs alleged that Georgia Power negligently installed and maintained the power cable; that Georgia Power failed to adequately insulate the line; and that Georgia Power failed to warn others of the extremely high voltage present in the line. Plaintiffs’ other allegations included claims that the managers of the apartment complex had superior knowledge of the danger of the high-voltage line and were liable for their failure to warn plaintiffs.

Georgia Power answered the complaint, claiming that plaintiffs’ suit was barred by OCGA § 46-3-30 et seq., because the work was being done within ten feet of a high-voltage line and no notice of the work had been given to it or to the Utilities Protection Center. Franco and Gulf Insurance Company filed a motion to intervene. They argued that Franco, through its insurer, Gulf, had paid more than $700,000 in workers’ compensation benefits to the plaintiffs and that intervention was necessary to protect and enforce their subrogation lien under OCGA § 34-9-11.1 in the event that plaintiffs recovered. Georgia Power cross-claimed against Franco, claiming that under the High-voltage Safety Act, Franco was liable for plaintiffs’ damages and for Georgia Power’s defense costs.

Franco then filed a motion for summary judgment, arguing that because the plaintiffs’ injuries indisputably arose from their employment, Georgia Power’s claims were barred by the exclusivity provisions of OCGA § 34-9-11 (a). Georgia Power filed a cross-motion for partial summary judgment, arguing that there was no dispute that Franco had failed to comply with the provisions of the High-voltage Safety Act, and that there was no issue as to Franco’s liability to indemnify Georgia Power against the plaintiffs’ claims.

In Santana v. Ga. Power Co., 269 Ga. 127 (498 SE2d 521) (1998), our Supreme Court affirmed the trial court’s grant of summary judgment to Georgia Power on the issue of Georgia Power’s liability to the plaintiffs. Santana concluded that the trial court’s grant of summary judgment to Georgia Power was proper because of the appellants’ and their employer’s failure to give the statutorily required notice of the work near a high-voltage line. Accordingly, Georgia Power’s cross-claim against Franco for indemnification is moot. Nevertheless, based on OCGA § 46-3-40 (b), Georgia Power also asserted a claim for defense costs and that claim is not rendered moot by the Supreme Court decision.

We conclude that the superior court properly granted Franco’s motion for summary judgment, correctly concluding that the case was controlled by City of Dalton v. Gene Rogers Constr. Co., 223 Ga. App. 819. See also Flint Elec. Membership Corp. v. Ed Smith Constr. Co., 229 Ga. App. 838 (495 SE2d 136) (1997); Preston v. Ga. Power Co., 227 Ga. App. 449, 452 (1) (489 SE2d 573) (1997); compare Allen v. King Plow Co., 227 Ga. App. 795 (490 SE2d 457) (1997).

The pertinent provisions of OCGA § 46-3-40 (b) of the High-voltage Safety Act are as follows: “ ‘[a]ny person responsible for the work who violates the requirements of Code Section 46-3-33 (required conditions for commencing work within ten feet of high-voltage line) and whose subsequent activities within the vicinity of high-voltage lines result in . . . injury or damage to person or property shall be strictly liable for said injury or damage. Any such person shall also indemnify the owner or operator of such high-voltage lines against all claims, if any, for personal injury, including death, property damage, or service interruptions, including costs incurred in defending any such claims resulting from work in violation of Code Section 46-3-33.’ ” Flint Elec. Membership Corp. v. Ed Smith Constr. Co., 229 Ga. App. at 839.

OCGA § 34-9-11 (a) provides: “[t]he rights and the remedies granted to an employee by this chapter shall exclude all other rights and remedies of such employee, ... at common law or otherwise, on account of such injury, loss of service, or death; provided, however, that no employee shall be deprived of any right to bring an action against any third-party tort-feasor, other than an employee of the same employer or any person who, pursuant to a contract or agreement with an employer, provides workers’ compensation benefits to an injured employee. . . .”

In City of Dalton and Flint Elec. Membership Corp., the appellants argued that they were entitled to indemnity under the provisions of the High-voltage Safety Act and that such indemnity was not barred by the exclusive remedy provision of the Workers’ Compensation Act. In both cases, this Court held that the High-voltage Safety Act does not create an exception to the exclusive remedy provision of the Workers’ Compensation Act. Based on the holdings of these cases, we affirm the grant of summary judgment to Franco.

In concluding, we note that the dilemma posed by the interrelation of these two statutes is complex. On the one hand, the rights and remedies provided by workers’ compensation law protect workers who are injured in any work-related incident. On the other hand, the High-voltage Safety Act was enacted to protect workers from injury or death from electric lines. Thus, the High-voltage Safety Act imposes strict liability and even criminal penalty when the legally required precautions are not taken. OCGA § 46-3-40. By not making an exception in the workers’ compensation statute for the High-voltage Safety Act, the legislature has expressed its will that the exclusivity provisions of the workers’ compensation statute prevail. But, in deciding not to create an exception to the workers’ compensation bar, the legislature has taken the teeth out of the High-voltage Safety Act. The present interpretation of the two statutes means that an employee who has been paid workers’ compensation benefits can never enforce the High-voltage Safety Act in a suit against his/her employer. Regardless of other incentives available under the statute to ensure employer compliance with the its provisions, in reality, this interpretation means that few injured workers can avail themselves of the protection of the High-voltage Safety Act.

Judgment affirmed.

Ruffin, J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

The trial court was correct. The reason Georgia Power Company as “owner or operator of [the] high-voltage lines” was not entitled to recover “costs incurred in defending [plaintiffs’] claims,” as permitted by OCGA § 46-3-40 (b) by way of indemnification from the noncomplying employer, is that the employer provided workers’ compensation coverage to the plaintiffs/employees. City of Dalton v. Gene Rogers Constr. Co., 223 Ga. App. 819 (479 SE2d 171) (1996).

The legislature has decided the public policy in such instances and has chosen to assign the risks in this manner. No one wishes to expose workers to injury or death from electric lines. To protect against it, the High-voltage Safety Act imposes strict liability and even criminal penalty when the legally required precautions are not taken. OCGA § 46-3-40. But it is a deeply imbedded and longstanding public policy to protect workers injured in any work-related incident, regardless of the means, by the expedient of workers’ compensation coverage which allows recovery without regard to fault. OCGA § 34-9-1 et seq. The rights and remedies provided by the workers’ compensation law are exclusive, OCGA § 34-9-11, and the employer who complies with that law is relieved of other types of claims as quid pro quo. Since the legislature chose not to make an exception for the reach of the High-voltage Safety Act, the courts must enforce the will the legislature has expressed. It is best equipped to weigh the competing interests and to structure liabilities after taking the various risks and benefits into account when deciding that one scheme as opposed to another would best serve the public. The court has no power to substitute its wisdom in such instances.

Without notice, the owner or operator of electric lines is spared liability even where they are not properly located and maintained. Santana v. Ga. Power Co., 269 Ga. 127 (498 SE2d 521) (1998). But that means also that where the innocent utility owner is hauled into court without justification and the law expressly allows indemnification to it for defense costs, the humane purposes of the workers’ compensation law are impliedly favored by the legislature over the interest of the utility owner or operator.

In consequence, by providing workers’ compensation benefits to the injured employee, even the employer who neglects to notify the electric line owner or operator is shielded from indemnity liability. This may be seen as part of the incentive to assure benefits to the injured employee. That is not to say that the employer then has little incentive to fulfill the notice requirement of OCGA § 46-3-33; it is still subject to criminal penalty, not to mention humanitarian motivations and workers’ compensation costs.

Georgia Power Company’s arguments imploring that City of Dalton should be overruled would be more appropriate for the ears of the legislature.

On Motion for Reconsideration.

On June 16, the day after our opinion in the above case was decided, the Supreme Court of Georgia granted cert. in Flint EMC v. Ed Smith Constr. Co., 229 Ga. App. 838 (495 SE2d 136) (1997), specifically on the issue of whether the exclusive remedy provisions of the Workers’ Compensation Act can preclude claims for indemnity under the High-voltage Safety Act. In its motion for reconsideration, Georgia Power argues that this Court should reconsider its decision in the above case or vacate the opinion until the Supreme Court rules in the Flint EMC case. Although we are constrained by existing law in the present case, we note that the dissent in City of Dalton v. Gene Rogers Constr. Co., 223 Ga. App. 819, 822 (479 SE2d 171) (1996), espoused a different position. Although the Supreme Court may adopt the position taken by the dissent in City of Dalton, the Georgia Constitution mandates that this opinion issue within two terms and we are unable to delay our decision to await the Supreme Court’s pronouncement.

Decided June 15, 1998

Reconsideration denied July 30, 1998

Troutman Sanders, Scott A. Farrow, Robert L. Pennington, for appellant.

Magill & Atkinson, David M. Atkinson, for appellee.

       In Santana v. First Guaranty Mgmt. Corp., 223 Ga. App. 472 (477 SE2d 857) (1996), this Court reversed the grant of summary judgment to the owners/manager of the apartment building.

       As in this case due to Callaway v. Crown Crafts, 223 Ga. App. 297, 299 (3) (477 SE2d 435) (1996).

       OCGA § 46-3-40 (b).


author: Pope, Presiding Judge.

text:
    A98A0325.
    TEKIN et al. v. WHIDDON et al.
    (504 SE2d 722)
   Pope, Presiding Judge.

Edward Whiddon was paralyzed from the waist down during a hernia surgery at Henry General Hospital. He and his wife Carole Whiddon brought a medical malpractice and loss of consortium lawsuit in Fulton County against Metropolitan Anesthesiology Associates, Dr. Mahir Tekin and nurse anesthetist Charles Luker. Metropolitan, Tekin and Luker are insured by St. Paul Fire & Marine Insurance Company under two policies referred to as the “D policy” and the “E policy.” The D policy covers Metropolitan up to $1 million and Tekin up to an additional $1 million. The E policy covers Luker for $1 million. The parties are in dispute as to whether the E policy also provides another $1 million in coverage for Metropolitan. Nevertheless, there is no question that both policies provide at least $3 million in total coverage for Metropolitan, Tekin and Luker.

Neither of the policies was given to the Whiddons before or during the trial. During pre-trial discovery the Whiddons requested production of the applicable insurance policies. Metropolitan and Tekin did not produce the policies, but responded that they would make the documents available for inspection. An inspection never took place, although the Whiddons learned from St. Paul that Tekin had $1 million in coverage.

The parties tried to reach a settlement, but were unsuccessful. Before trial the court dismissed Luker on the ground that venue as to him was proper only in Henry County. The case was then tried before a jury. On the last day of trial a St. Paul representative told the Whiddons’ lawyer that she wanted to make sure he understood the coverage. She then told him about the total of $2 million in coverage under the D policy for Tekin and Metropolitan, but did not mention the E policy coverage of Luker.

Thereafter, throughout the last day of the trial, the St. Paul representative and the Whiddons’ lawyer tried to negotiate a settlement limiting the amount of the Whiddons’ highest and lowest possible recoveries on the jury’s verdict. The Whiddons’ lawyer repeatedly insisted that an essential condition of any settlement was certification that $2 million was the full limit of coverage for all defendants. After several offers and counter-offers by both sides, the Whiddons’ lawyer told the St. Paul representative that his clients would accept her last offer of a high limit of $1,600,000 and a low limit of $600,000, pursuant to the conditions they had already discussed. A lawyer for Metropolitan and Tekin wrote the following notes about the settlement: “all claim, all defendant; Luker out; confidential; no post trial motion; payment in 30 days; no less than 600,000; no more than 1,600,000; no interest due on unliquidated; interest out.” None of the parties signed the handwritten notes. The Whiddons’ lawyer and the St. Paul representative told the court that a settlement had been reached. The jury then announced its verdict for the Whiddons in the total amount of $5,650,000.

Several days later the Whiddons’ lawyer asked for and received copies of both the D and E insurance policies from St. Paul. Because the policies showed that the full limit of coverage for Metropolitan, Tekin and Luker was more than $2 million, the Whiddons’ lawyer informed Metropolitan, Tekin and St. Paul that he was declaring the settlement agreement null and void due to misrepresentations and omissions regarding the limits of insurance available to pay the Whiddons’ claims.

Metropolitan and Tekin filed a motion to enforce the purported settlement agreement limiting the amount of their liability to $1,600,000. The trial court denied the motion and entered judgment on the jury verdict. Metropolitan and Tekin appeal, challenging the court’s denial of their motion to enforce the settlement.

1. Metropolitan and Tekin contend the trial court erred in finding that there was no enforceable written agreement between the parties. This contention is without merit.

“Ordinarily, for an attorney to bind his client to a settlement agreement where there is a dispute as to terms, the agreement must be in writing. [Cit.] This requirement of a writing goes to the certainty that an agreement exists and to the certainty of the terms of the agreement, not to the question of consent of the client to the agreement. The writing which will satisfy this requirement ideally consists of a formal written agreement signed by the parties. However, letters or documents prepared by attorneys which memorialize the terms of the agreement reached will suffice.” Brumbelow v. Northern Propane Gas Co., 251 Ga. 674, 676 (2) (308 SE2d 544) (1983). In the instant case, there is a dispute as to the terms of the purported settlement agreement. The Whiddons assert that a condition precedent to the settlement was certification that the full amount of insurance coverage available to Metropolitan, Tekin and Luker was $2 million. Metropolitan and Tekin claim that such certification about the amount of available insurance coverage was not a condition of the settlement agreement. Because the parties disagree as to the terms of the attempted settlement, Metropolitan and Tekin, as the proponents of the settlement, must establish its existence in writing. Herring v. Dunning, 213 Ga. App. 695, 697 (446 SE2d 199) (1994). It is undisputed that there is no formal written agreement signed by the parties. Metropolitan and Tekin, however, contend that the writing requirement is satisfied by their lawyer’s handwritten notes.

Contrary to the contention of Metropolitan and Tekin, merely because their lawyer made notes concerning the attempted settlement, the trial court was not bound to find that those notes constituted a full and binding statement of the essential terms of the agreement. The notes simply provided some evidence upon which the court could base its decision about the existence and terms of the purported agreement. It is undisputed that no one signed the notes, and the Whiddons’ attorney testified by affidavit that while he knew the opposing lawyer was making notes regarding the settlement, he did not in any way approve of the notes as being a complete memorial of all the terms and conditions of the settlement.

Furthermore, the court determined that an essential condition of the attempted settlement was certification that $2 million was the full insurance available to cover the Whiddons’ claims. This determination is supported by the evidence that on the day the parties reached their purported settlement, the St. Paul representative told the Whiddons’ lawyer that there was $2 million in coverage for Metropolitan and Tekin. Throughout the day the Whiddons’ lawyer repeatedly stated during settlement discussions, both in writing and verbally, that a settlement agreement must be conditioned on certification that $2 million was the limit of coverage for all defendants. Moreover, when the parties thought they had finally reached an agreement the Whiddons’ lawyer reiterated that the agreement was subject to the conditions set forth in his earlier settlement proposals. Thereafter, the parties announced their settlement to the court. Because this evidence supports the trial court’s finding that certification of the amount of insurance coverage was a condition of the settlement, we must uphold the finding. Morrow v. Vineville United Methodist Church, 227 Ga. App. 313, 317 (2) (489 SE2d 310) (1997); Johnson v. Gwinnett County, 215 Ga. App. 79, 81 (2) (449 SE2d 856) (1994).

The attorney’s handwritten notes make no mention of certification of $2 million as the limit of available insurance coverage. The notes therefore did not memorialize all the essential terms of the settlement and the trial court was authorized to conclude that the notes did not constitute a valid and enforceable agreement. Johnson v. Gwinnett County, 215 Ga. App. at 81 (2); Grossman v. Smith, Barney &c., 211 Ga. App. 243, 247 (438 SE2d 700) (1993). Because there is no writing establishing the entire agreement, the trial court was correct in denying the motion of Metropolitan and Tekin to enforce the settlement. LeCroy v. Massey, 185 Ga. App. 828, 829 (366 SE2d 215) (1988).

2. The trial court was also authorized to find that there was no enforceable oral settlement agreement. “An oral settlement agreement must be definite, certain and unambiguous. For such an agreement to be binding on the parties it should be clear that it is full and complete, covers all issues, and is understood by all litigants concerned.” (Citations and punctuation omitted.) Grossman v. Smith, Barney &c., 211 Ga. App. at 245. “Under Georgia law, an agreement alleged to be in settlement and compromise of a pending lawsuit must meet the same requisites of formation and enforceability as any other contract. In this regard, it is well settled that an agreement between two parties will occur only when the minds of the parties meet at the same time, upon the same subject matter, and in the same sense.” (Citations and punctuation omitted.) Southern Med. Corp. v. Liberty Mut. Ins. Co., 216 Ga. App. 289, 291 (2) (454 SE2d 180) (1995). In the current case, the minds of the parties did not meet at the same time, upon the same subject matter, and in the same sense concerning the certification of the amount of insurance coverage available to pay the Whiddons’ claims. The Whiddons intended the certification of coverage as to all defendants to include Metropolitan, Tekin and Luker. But St. Paul either intended that there be no certification or that the certification include only Metropolitan and Tekin. “In order that there may be an agreement, the parties must have a distinct intention common to both and without doubt or difference.” (Citation and punctuation omitted.) Simmons v. McBride, 228 Ga. App. 752, 753 (492 SE2d 738) (1997). Because both sides had different intentions with respect to the certification of the full extent of insurance available to pay the Whiddons’ claims, there was no meeting of the minds on that essential condition to the agreement.

“A meeting of the minds is the first requirement of the law relative to contracts.” (Citation and punctuation omitted.) Simmons v. McBride, 228 Ga. App. at 753. See OCGA § 13-3-2. “(I)f there was in fact any essential part of the contract upon which the minds of the parties had not met, or upon which there was not an agreement it must follow that a valid and binding contract was not made.” (Citations and punctuation omitted.) BellSouth Advertising &c. Corp. v. McCollum, 209 Ga. App. 441, 445 (2) (433 SE2d 437) (1993). Because the minds of the parties in the instant case did not meet on the certification of available insurance coverage, no valid contract was made and the trial court therefore did not err in refusing to enforce the purported settlement agreement. See Johnson v. Gwinnett County, 215 Ga. App. at 81 (2); Crumpton v. Kelly, 185 Ga. App. 245, 246-247 (2) (363 SE2d 799) (1987).

Decided July 16, 1998

Reconsideration denied July 30, 1998

Blasingame, Burch, Garrard, Bryant & Ashley, J. Ralph Beaird, Kathleen M. Timmons, Milton F. Eisenberg II, Long, Weinberg, Ansley & Wheeler, Robert G. Tanner, Stephen R. Chance, for appellants.

Doffermyre, Shields, Canfield & Knowles, Foy R. Devine, Bondurant, Mixson & Elmore, Emmet J. Bondurant, for appellees.

3. Because of our holdings in Divisions 1 and 2 we need not address the remaining arguments of Metropolitan and Tekin.

Judgment affirmed.

Beasley and Ruffin, JJ, concur.


author: Judge Harold R. Banke. Beasley, Judge,

text:
    A98A0501.
    WINGATE v. RIDGEVIEW INSTITUTE, INC.
    (504 SE2d 714)
   Judge Harold R. Banke.

Ridgeview Institute, Inc. (“Ridgeview”) sued Dan B. Wingate for an unpaid account balance. Wingate counterclaimed for false imprisonment, negligence in Ridgeview’s selection, training, and supervision of its staff, and violation of the Georgia Fair Business Practices Act (“FBPA”). Enumerating three errors, Wingate appeals the summary judgment awarded to Ridgeview.

The underlying case arose after Wingate voluntarily consented to undergo alcohol detoxification treatment at Ridgeview beginning on May 18. At the time of his admission, Wingate signed a document entitled “AGREEMENT AND CONDITIONS OF VOLUNTARY ADMISSION.” On June 9, after several weeks of inpatient treatment, Wingate decided that he wanted to participate in an outpatient program and sought his release. According to Ridgeview’s express discharge procedures contained in the Agreement and Conditions of Voluntary Admission document, upon Ridgeview’s receipt of a proper written discharge request, “you will be discharged unless that physician determines, after consideration of the recommendations of the treatment team, that your discharge would be unsafe to you or to others.”

After Wingate requested his discharge, his treating physician refused to consent and, utilizing DHR Form 2021, authorized Win-gate’s involuntary retention. In denying Wingate’s request, Perry G. Seese, M.D., wrote, “[h]e is again determined to leave the hospital to ‘find his own treatment program.’ He is angry, depressed, and at a high risk of relapse.” Several days later, on June 17, another physician concluded that an “outpatient in an evening program would suffice.” Ridgeview then permitted Wingate’s discharge.

Wingate claimed that Ridgeview failed to comply with OCGA § 37-7-22 because the DHR certificate failed to contain a finding that the “chief medical officer finds that the discharge would be unsafe for the patient or others.” Wingate also alleged inter alia that Ridgeview misrepresented its services and failed to properly train its staff to implement procedures to ensure that persons would not be improperly detained. OCGA § 10-1-393 (b) (2), (7).

The trial court struck Wingate’s amended counterclaim which sought to add counts for abusive process, fraud, and breach of contract. After finding that Ridgeview’s involuntary retention of Win-gate was not unlawful and that no claim for false imprisonment could lie, the court apparently reasoned Wingate’s claim under the FBPA, being derivative, failed as a matter of law. Held:

1. The trial court did not abuse its discretion in striking Win-gate’s amended counterclaim. Conerly v. First Nat. Bank &c., 209 Ga. App. 601, 604 (3) (434 SE2d 143) (1993). Without seeking leave of court, more than one year after filing his original counterclaim, Win-gate filed an amended counterclaim raising additional issues. The court correctly determined that these new counterclaims were compulsory and improper under OCGA § 9-11-13 (f). Cornelius v. Auto Analyst, 222 Ga. App. 759, 762-763 (3) (476 SE2d 9) (1996).

2. Wingate contends that Ridgeview was not entitled to summary judgment on the issue of false imprisonment. We agree.

In enacting the statutory framework relating to the hospitalization of alcoholics, the General Assembly explicitly established that “[i]t [is] the policy of this state to recognize the personal physical integrity of all patients.” OCGA § 37-7-163 (a). To effectuate this express policy, the legislature established procedural safeguards which require “rigid adherence” to ensure no unlawful deprivation of a patient’s personal liberty. Kendrick v. Metro. Psychiatric Center, 158 Ga. App. 839, 842 (282 SE2d 361) (1981) (physical precedent only).

In the underlying case, although Ridgeview attempts to apply part of this law to Wingate, its justification for so doing is not clear. Without question, Wingate entered Ridgeview as a voluntary participant in a treatment program under the terms of a contractual agreement with Ridgeview. He was not taken into custody or involuntarily committed for treatment. Nor was he admitted to an “evaluating facility” for the purpose of “evaluation” or “observation” under the terms of OCGA § 37-7-20 (a).

For these reasons, Ridgeview’s reliance on OCGA § 37-7-22 is ill-conceived. By its express terms, that statute applies to patients voluntarily admitted for observation and diagnosis to an evaluating facility, not to those voluntarily admitted upon application for treatment. OCGA § 37-7-20 (a). In fact, Form 2021 specifically states that it is a “Certificate Authorizing Retention in Evaluating Facility Pending Transfer to Treatment Facility.” Ridgeview offered no explanation as to why it could employ this form when Wingate had not been admitted for evaluation.

Even assuming arguendo that this statute had been applicable to Wingate, the law mandates that after a voluntarily admitted patient seeks his release, he “must be discharged from the facility, unless the chief medical officer finds that the discharge would be unsafe for the patient or others.” (Emphasis supplied.) OCGA § 37-7-22 (a). Here, the record unquestionably is devoid of the mandatory finding that Wingate’s discharge would be unsafe for him or anyone else. Instead, as the physician noted on Wingate’s discharge summary, “At that point, I felt he was a great risk for relapse and began involuntary proceedings.” Implicitly recognizing the vital liberty interest at risk, the General Assembly narrowly tailored the exceptional circumstances which would authorize involuntary medical treatment of an alcoholic patient to: “[i]n cases of grave emergency where the medical staff of the facility in which an alcoholic . . . has been accepted for treatment determines that immediate . . . intervention is necessary to prevent serious physical consequences or death and where delay in obtaining consent would create a grave danger to the physical health of such person, as determined by at least two physicians. . . .” (Emphasis supplied.) OCGA § 37-7-163 (e).

Ridgeview offered no authority supporting its arbitrary substitution of “best interest of the patient” criteria for the statutorily mandated finding that the “discharge would be unsafe to the patient or others.” OCGA § 37-7-22 (a). Compare Etheridge v. Charter Peachford Hosp., 210 Ga. App. 482, 486 (7) (436 SE2d 669) (1993). Where, as here, a patient’s detention is not evidenced by a showing of objective compliance with all applicable procedures, a claim for false imprisonment may lie. Williams v. Smith, 179 Ga. App. 712, 716 (2) (348 SE2d 50) (1986). In the absence of the requisite medical finding, we cannot say as a matter of law that Ridgeview demonstrated “rigid adherence” with the statutory procedural safeguards. Kendrick, 158 Ga. App. at 842. Compare Hudgins v. Bawtinhimer, 196 Ga. App. 386, 387 (2) (395 SE2d 909) (1990) (procedurally valid certificate by physician or valid court order precludes claim for false imprisonment).

Without offering any authority or precedent, the dissent rewrites the explicit language of “unsafe for the patient,” under the guise of construing its meaning. Even if we apply the dissent’s suggested criteria to Wingate, Ridgeview offered no evidence that Wingate exhibited “life-threatening levels of intoxication, withdrawal, or imminent danger thereof [or was] under the influence of alcoholic beverages [or was] incapable of caring for himself or protecting himself.”

Further, the dissent’s statutory revision of the plain language of OCGA § 37-7-20 (a) is neither persuasive nor supportable. Although the dissent includes patients admitted for treatment under this section, the legislature did not choose to do so. By its express terms, this Code section pertains to “any patient . . . making application [for observation and diagnosis]” and makes no mention of patients in Wingate’s situation who voluntarily seek treatment. OCGA § 37-7-20.

In light of the lack of evidence of Ridgeview’s strict compliance with OCGA § 37-7-22, even assuming arguendo that this statute had any applicability to Wingate’s situation, summary judgment on Win-gate’s false imprisonment claim must be reversed. Heath v. Peachtree Parkwood Hosp., 200 Ga. App. 118, 119 (2) (407 SE2d 406) (1991). To hold otherwise would not only eviscerate the mandatory statutory criteria of OCGA §§ 37-7-22 (a) and 37-7-163, but it would also erode individual rights “in the name of medical expediency.” Kendrick, 158 Ga. App. at 842.

3. Wingate contends that a jury must resolve whether Ridgeview violated the FBPA (OCGA § 10-1-390 et seq.) by engaging in false and deceptive practices. We agree. In light of the evidence that Ridgeview failed to comply with OCGA § 37-7-22 and with its own written internal discharge procedures, summary judgment on Win-gate’s claim under the FBPA must be reversed.

Judgment affirmed in part and reversed in part.

McMurray, P. J., Blackburn and Eldridge, JJ, concur. Andrews, C. J., Pope, P. J., and Beasley, J., concur in part and dissent in part.

Beasley, Judge,

concurring in part and dissenting in part.

I concur fully in Division 1 but respectfully dissent as to Divisions 2 and 3.

1. Wingate voluntarily admitted himself to the facility pursuant to OCGA § 37-7-20. The majority’s conclusion that OCGA § 37-7-20 does not apply to Wingate’s admission is based (i) on its legal analysis that the statute applies only to patients received for observation and diagnosis, not for treatment, and (ii) on its factual analysis that Wingate requested only the latter. Neither of these is correct.

First, it is true that OCGA § 37-7-20 (a) refers to patients voluntarily applying for “observation and diagnosis.” But the statute is purposely broad and includes such as parts of the definition of treatment. “ Treatment’ means the broad range of emergency, outpatient, intermediate, and inpatient services and care, including diagnostic evaluation. . . OCGA § 37-7-1 (20). Thus, a request for treatment would include a request for observation and diagnosis, although the converse is not necessarily true. One may be diagnosed and observed without being treated, but one may hardly be effectively treated without ongoing observations and diagnoses as part of the treatment itself. Wingate’s request for treatment fell under the statute. OCGA § 37-7-20 (a) states that once a person is found to be suitable for treatment for alcoholism, “such person may be given care and treatment at such facility; and such person may be detained by such facility until discharged pursuant to Code Section 37-7-21 or 37-7-22.”

Second, in his admission form Wingate requested not only standard treatments but also “routine diagnostic procedures.” During his stay the records reflected he was extensively observed and evaluated for diagnostic purposes. Certainly Wingate did not want treatment without being observed and diagnosed as part of that treatment.

2. Wingate requested discharge in writing on June 9, 1993. OCGA § 37-7-22 (a) provides that the patient must be discharged within 72 hours after the chief medical officer receives the discharge request “unless the chief medical officer finds that the discharge would be unsafe for the patient or others, in which case proceedings for involuntary treatment must be initiated. . . .”

The definitions section of the statute elucidates how a physician finds a discharge unsafe for the patient or others. OCGA § 37-7-1 (3) defines an “ ‘[a]lcoholic, drug dependent individual, or drug abuser requiring involuntary treatment’ [as] a person who is an inpatient. . . .” “ ‘Inpatient’ means a person who is an álcoholic, a drug dependent individual, or a drug abuser and: (A) (i) Who presents a substantial risk of imminent harm to that person or others, as manifested by either recent overt acts or recent expressed threats of violence which present a probability of physical injury to that person or other persons; or (ii) Who is incapacitated by alcoholic beverages, drugs, or any other substances . . . on a recurring basis; and (B) Who is in need of involuntary inpatient treatment.” OCGA § 37-7-1 (14.1).

The statute further defines “incapacitated by alcohol or drugs” to mean that “a person, as a result of the use of alcoholic beverages, any drug, or any other substances . . ., exhibits life-threatening levels of intoxication, withdrawal, or imminent danger thereof, or acute medical problems; or is under the influence of alcoholic beverages or drugs or any other substances ... to the extent that the person is incapable of caring for himself or protecting himself due to the continued consumption or use thereof.” OCGA § 37-7-1 (13).

Thus, there are two ways a chief medical officer can determine a discharge would be unsafe for the patient or others. Either (a) the patient’s overt acts or threats mean that he likely will physically harm himself or others, or (b) the patient is incapacitated by the substance abuse, i.e., he cannot take care of himself or life-threatening levels of intoxication or withdrawal are present or imminent.

OCGA § 37-7-163 (e) refers to the presence of grave emergencies or dangers and to serious physical consequences or death. It does not apply to the retention of patients needing treatment for alcoholism. By its express terms it applies only to “immediate surgical or other intervention,” not to retention. Understandably, the General Assembly imposed a higher standard of findings before involuntary surgical procedures could invade a patient’s body.

The doctors here concluded that Wingate was incapacitated by his alcoholism, particularly considering his history and attitude. On the day after Wingate’s discharge request, Dr. Seese, Dr. Bowling and the chief medical officer signed a Georgia Department of Human Resources form entitled “Certificate Authorizing Retention In Evaluating Facility Pending Transfer To Treatment Facility,” which tracked the statutory language. It stated that Drs. Seese and Bowling had examined Wingate that very day and that Wingate was “an alcoholic, drug dependent individual, or drug abuser requiring involuntary treatment in that he is an alcoholic, a drug dependent individual, or a drug abuser (circle applicable term) AND (a) presents a substantial risk of imminent harm to himself or others as manifested by either recent overt acts or recently expressed threats of violence which present a probability of physical injury to himself or to other persons, or (b) is incapacitated by alcohol or drugs (circle applicable term) on a recurring basis; (underline criteria used)!’ Because section “b” of the sentence was underlined and the word “alcohol” circled, the requisite finding that discharge would have been unsafe to Wingate or others was present.

The certificate and other required notices were filed with the superior court that same day. Ridgeview thereby promptly commenced judicial proceedings so as to protect Wingate’s rights regarding involuntary treatment, as the law required. See OCGA § 37-7-81. “Such filing shall authorize the detention of the patient by the facility pending completion of a full and fair hearing. . . .” OCGA §37-8-81 (a). Wingate was discharged prior to the hearing date.

The language of the certificate and the filings rigidly followed the procedural safeguards of the statute. Williams v. Smith, 179 Ga. App. 712, 714 (2) (348 SE2d 50) (1986), held that “[w]hen the detention is predicated upon procedurally valid process, false imprisonment is not an available remedy, regardless of the motives upon which the process was secured, because detention effectuated pursuant to procedurally valid process ... is not ‘unlawful,’ ” an essential element of a false imprisonment claim. (Emphasis omitted.) See Ridgeview Institute v. Handley, 224 Ga. App. 533, 534-535 (1) (481 SE2d 531) (1997); see also Scott Housing Systems v. Hickox, 174 Ga. App. 23, 24 (1) (329 SE2d 154) (1985) (essential element of false imprisonment is unlawfulness of detention).

Decided July 14, 1998

Reconsideration denied July 30, 1998

Chamberlain, Hrdlicka, White & Williams, Richard N. Hubert, for appellant.

Troutman Sanders, Daniel S. Reinhardt, Jennifer K. Campbell, for appellee.

The court did not err in entering summary judgment on the false imprisonment claim. Because Wingate argues false imprisonment as the only basis for his FBPA claim, we should affirm summary judgment on this claim also.

The trial court’s decision was correct in its entirety.

I am authorized to state that Chief Judge Andrews and Presiding Judge Pope join in this opinion.


author:
Pope, Presiding Judge.
      Beasley, Judge,

text:
    A98A0753.
    HEAD v. THE STATE.
    (504 SE2d 499)
   Pope, Presiding Judge.

The indictment against Marcus Head alleged that Head committed aggravated assaults upon Randall Hawkins and Anthony Pierce, that he kidnapped Deidre Triplett, and that he committed burglary and criminal trespass by entering Hawkins and Pierce’s dwelling with the intent to commit aggravated assault and by damaging a door. The jury found Head guilty only of the two aggravated assaults (OCGA § 16-5-21) and the criminal trespass (OCGA § 16-7-21).

1. Head challenges the sufficiency of the evidence to support his aggravated assault convictions.

“On appeal of a guilty verdict, we do not redetermine the factual issues decided by the jury nor the weight of the evidence, but only its sufficiency under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). [Cit.]” Newton v. State, 226 Ga. App. 501, 502-503 (2) (486 SE2d 715) (1997).

The State’s evidence showed the following. Head and Triplett were romantically involved and were living together when Triplett ended their relationship. Because of her fear of him, she spent the first night of their separation at the home of their mutual friend, Hawkins, with whom Pierce was residing. The next morning Head went to Hawkins’ residence and attempted to gain entrance. When Hawkins refused to let him enter, Head retrieved a rifle from his truck. Hawkins instructed Pierce and Triplett to go to the back of the house. Head began to force his way in by breaking down the front door. After Hawkins dove out of a bedroom window, Head confronted him outside, pointed the rifle at him, and cocked it. Hawkins threw his hands up.

When Pierce appeared in the front yard, Head “put the gun in his face.” Pierce testified that this scared him and caused him to retreat. Head then instructed Triplett to come out of the house. She did so, and Head put the rifle back in his truck at her request. Head saw Pierce moving toward the truck, grabbed the rifle, forced Triplett into his truck, and drove away. The rifle was not loaded when police recovered it.

At trial, Head denied he was armed when he stormed the house. He testified that he retrieved his weapon only because Hawkins and Pierce began to approach him outside and caused him to fear for his safety.. He denied pointing his rifle at either man.

OCGA § 16-5-21 (a) (2) provides that a person commits the offense of aggravated assault when he or she assaults “[w]ith a deadly weapon.” A person commits the offense of assault or simple assault under OCGA § 16-5-20 (a) when he either “(1) Attempts to commit a violent injury to the person of another; or (2) Commits an act which places another in reasonable apprehension of immediately receiving a violent injury.”

Head argues that evidence showing that he pointed a rifle at Hawkins and Pierce failed to establish they were thereby placed “in reasonable apprehension of immediately receiving a violent injury.” To the contrary, the 'victims’ testimony about their reactions to Head’s aggression authorized any rational trier of fact to find this element of the crime beyond a reasonable doubt. See generally Hurt v. State, 158 Ga. App. 722, 723 (282 SE2d 192) (1981).

2. Head enumerates as error the court’s jury charge on the offense of aggravated assault as it concerned the element of criminal intent. After jury deliberations had begun, this charge was repeated at the jury’s request.

The court generally instructed the jury that “intent is an essential element of any crime and must be proved by the state beyond a reasonable doubt.” In charging the jury on aggravated assault, the court initially explained that “[t]o constitute an assault, actual injury to the other person need not be shown. It is only necessary that the evidence show beyond a reasonable doubt an intention to commit injury on another person, coupled with the apparent ability to commit that injury, or that the other person was intentionally placed in reasonable apprehension of immediately receiving a violent injury from the defendant.” This initial charge included both OCGA § 16-5-20 (a) (1) regarding attempt to commit a violent injury to the person of another, and (a) (2), regarding committing an act which places another in reasonable apprehension of immediately receiving a violent injury. The recharge did not repeat the instruction on (a) (1).

In both charges, the court also instructed the jury that “[i]f the pointing of a firearm places the victim in reasonable apprehension of receiving an immediate violent injury the crime of aggravated assault has occurred. The emphasis is generally upon what the victim was thinking. Was he reasonably apprehensive of bodily harm? Such an assault will be aggravated when made with a deadly weapon regardless of intent. It makes no difference whether the weapon was loaded or could, in fact, be fired.”

Although the latter part of the charge could have been better worded, a reasonable juror would only have understood it to mean that if the victim was reasonably apprehensive of receiving bodily injury, the crime of aggravated assault has been committed regardless of whether defendant intended to injure the victim or whether the gun was loaded or could be fired.

3. Head seeks resentencing because the State: (a) did not provide him with pretrial notice of the prior convictions considered in aggravation of punishment, as required by OCGA § 17-10-2 (a), and (b) misrepresented that he had served time in custody on an earlier probation revocation.

(a) When the State introduced copies of Head’s prior convictions at the pre-sentencing hearing, he did not impose any objection to the court’s consideration of these matters. Any issue concerning lack of notice has been waived. Armstrong v. State, 264 Ga. 237, 238-239 (2), (3) (442 SE2d 759) (1994) (failure to notify in advance of sentencing precludes evidence in aggravation of punishment, but failure to object waives any error); Hutson v. State, 216 Ga. App. 100, 101 (3) (453 SE2d 130) (1995).

(b) Head argues the State misrepresented that he had served time in custody on an earlier probation revocation and that the State’s arguments were not based on admissible evidence. As in Division 3 (a), this enumeration is without merit because Head waived the argument by failing to object at the sentencing hearing.

At the sentencing hearing, the convictions introduced by the State showed that Head pled guilty to the prior criminal charges, was treated as a first offender, and was placed on probation. The prosecuting attorney stated that at some point after being sentenced, Head had been later “resentenced and sent to serve a period of time” in a correctional institution. In response, Head’s attorney stated that at the time of the previous crimes, Head was youthful. Upon inquiry by the court, the prosecuting attorney stated that he did not know why Head’s probation had been revoked but that Head received a longer sentence upon resentencing. The attorneys then presented argument regarding the sentencing, and again the prosecuting attorney referred to Head’s previous failure to follow the rules of probation. The prosecutor recommended that Head be given two consecutive twenty-year sentences for the aggravated assaults and a concurrent twelve-month sentence for criminal trespass. Defense counsel did not object to the prosecuting attorney’s representations regarding Head’s probation, but in his argument he asked for leniency because the offenses were crimes of passion. He requested a sentence of no more than five years’ confinement.

The court recessed and retired to chambers. When the proceedings were resumed, the parties were asked to approach the bench for sentencing. The court asked if anyone wanted to say anything else, and defense counsel responded, “Mr. Head has advised me he has never in his previous case he never [sic] had his probation revoked. That’s all I’m going to say to the court. This is what he has advised me.” The court responded “all right” and pronounced consecutive ten- and fifteen-year sentences for the aggravated assaults and a concurrent twelve-month sentence for criminal trespass.

Here, Head argues that no admissible evidence was introduced proving his probation had been revoked and that the best evidence of a probation revocation would have been a certified copy of the revocation order. Moreover, Head argues that the prosecutor’s oral statement was not even admissible to prove such fact. As stated above, we conclude that Head waived any “best evidence” objection to the prosecutor’s representation by failing to raise the objection during the sentencing hearing. See generally Thomas v. State, 268 Ga. 135, 140 (13) (485 SE2d 783) (1997).

Moreover, even assuming arguendo that Head preserved the argument for our review, under this Court’s “right for any reason” analysis, this Court presumes that the trial court acted properly in reaching its decision. Here, a “right for any reason” analysis would dictate that we conclude that the trial court did not rely upon the prosecutor’s representation, but instead based the sentence upon admissible evidence.

4. Head contends that counsel rendered ineffective assistance by failing to request that the court instruct the jury on pointing a firearm at another and reckless conduct, as lesser included misdemeanor offenses of felony aggravated assault.

“As clarified by the Supreme Court in Rhodes v. State, 257 Ga. 368 (359 SE2d 670) (1987), OCGA § 16-11-102 (misdemeanor pointing of a firearm) applies only where the victim is not placed in reasonable apprehension of immediate violent injury by the pointing of the firearm (e.g., when the victim is unaware a weapon has been pointed at him or her), since otherwise the act of pointing a firearm at a person comes within the definition of aggravated assault, OCGA § 16-5-20 (a) (2) and 21 (a) (2).” Watson v. State, 199 Ga. App. 825, 827 (3) (406 SE2d 509) (1991). Although pointing a firearm at another is an offense included in aggravated assault, it is not error to refuse a charge on it when the evidence does not reasonably raise the issue that defendant may be guilty only of the lesser crime. Green v. State, 175 Ga. App. 92, 94 (4) (332 SE2d 385) (1985).

The State’s evidence showed that both victims were aware that Head was pointing the gun at them and both feared immediate violent injury. Head’s defense, established by his testimony, was that he had not pointed the gun at them at all. The evidence thus showed either the commission of the completed offense as charged or the commission of no offense. Head was not entitled to a charge on the lesser offense.

Nor was he entitled to a charge on reckless conduct. An essential element of the latter crime is criminal negligence. Perryman v. State, 208 Ga. App. 754, 756 (3) (431 SE2d 742) (1993). There was no testimony that would support a finding that Head’s pointing the rifle at the two men was only criminally negligent rather than intentional. Marion v. State, 224 Ga. App. 413, 416 (2) (480 SE2d 869) (1997).

For these reasons, the failure to request jury instructions on these two less grievous offenses did not constitute ineffective assistance. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

Moreover, the absence of a request to charge may have been conscious and deliberate trial strategy. There is no transcript of the charge conference, and neither Head nor his trial attorney testified at the hearing on the motion for new trial. The only witness at that hearing was another criminal defense lawyer, who had not read the transcript of this trial. He testified that generally a defense attorney’s omission of a request to charge on lesser included offenses is below the professional standard of reasonableness. But, as this Court has recognized, this decision is based on a myriad of complex factors. See Hill v. State, 228 Ga. App. 362, 364 (1) (492 SE2d 5) (1997); compare Pearson v. State, 216 Ga. App. 333 (454 SE2d 205) (1995) (defense counsel’s failure to request a lesser-included-offense charge deprived defendant of his only defense). Defendant has not successfully discharged his burden of proving ineffectiveness. Jones v. State, 230 Ga. App. 65 (495 SE2d 327) (1997).

5. The last enumeration of error is the denial of a motion in limine filed prior to the hearing on the motion for new trial. This enumeration is without merit.

Judgment affirmed.

Andrews, C. J., McMurray, P. J., Blackburn, Ruffin and Eldridge, JJ., concur. Beasley, J., concurs in part and dissents in part.

Beasley, Judge,

concurring in part and dissenting in part.

I concur in all but Division 3 (b). As to it I respectfully dissent. Lacking in the record is assurance that a significant item in aggravation of punishment, presented by the State, did not affect the determination of the sentence imposed.

The convictions introduced by the State showed that Head pled guilty to the charges and was placed on probation. At the hearing, the prosecuting attorney orally represented to the court that Head’s probation had been revoked, resulting in his incarceration. Upon inquiry by the court, the prosecuting attorney stated that he did not know why Head’s probation was revoked but that he did receive a longer sentence upon resentencing. Defense counsel did not immediately challenge the accuracy of the additional representations, and the prosecutor recommended that Head be given two consecutive twenty-year sentences for the aggravated assaults and a concurrent twelve-month sentence for criminal trespass. Defense counsel asked for leniency because the offenses committed were crimes of passion, and a sentence of no more than five years’ confinement was requested.

Head objected to the prosecuting attorney’s unexpected oral representation at trial as being inaccurate, when he had the opportunity to tell his counsel during the court’s recess. No admissible evidence was introduced proving his probation had been revoked. The best evidence of a probation revocation would be a certified copy of the revocation order, but the prosecutor’s oral statement was not admissible as any sort of evidence to prove such fact. It did not constitute “evidence,” which is what OCGA § 17-10-2 (a) requires.

Head complains that the prosecutor’s statement to the judge was erroneous. The State does not maintain it was accurate. Instead, it avoids the issue by arguing that Head failed to establish that the trial court considered the undocumented representation in sentencing him. To the contrary, the sequence of events that transpired at presentencing shows that the court arrived at its sentencing decision during the recess, after the representation was made by the prosecuting attorney but before its accuracy was challenged by the defense. The record indicates that the court did in fact consider the representation, which was made expressly “in aggravation” of punishment, that defendant had once failed at probation.

Consequently, the sentences should be vacated and the case remanded to the trial court for possible resentencing. The trial court should first determine whether a false fact intensified the punishment. If so, then defendant must be resentenced; if not, the original sentence may be reinstated.

Decided July 7, 1998

Reconsideration denied July 30, 1998.

Lauren L. Becker, for appellant.

Benjamin F. Smith, Jr., District Attorney, Debra H. Bernes, Nancy I. Jordan, Donald T. Phillips, Assistant District Attorneys, for appellee.

The deprivation of liberty must rest on a sound and solid base and not merely on one which is presumed to be free of dependence on unestablished, challenged fact. It is safer to require clarity than to risk covering even unintended error.

       See Ramsey v. State, 218 Ga. App. 692, 693 (4) (462 SE2d 806) (1995), citing OCGA § 24-5-31.

       Compare Tutton v. State, 179 Ga. App. 462 (2) (346 SE2d 898) (1986).

       See Ramsey v. State, supra.