text:
    A00A1910.
    ALLSTATE INSURANCE COMPANY v. HAMLER.
    (545 SE2d 12)
   Smith, Presiding Judge.

In this breach of contract action filed by Loretta Hamler against Allstate Insurance Company, the trial court denied summary judgment to Allstate. We granted Allstate’s application for interlocutory appeal. Because the record shows that, contrary to the terms of the insurance policy issued to Hamler, Hamler failed to provide certain documents to Allstate during Allstate’s investigation of her claim, we conclude that summary judgment in Allstate’s favor was warranted. We therefore reverse.

In October 1996, several items, including large pieces of furniture, allegedly were stolen from Hamler’s home, and Hamler submitted a claim to Allstate for approximately $26,000 under a homeowner’s policy issued by Allstate. During a recorded statement taken by Allstate, Hamler stated she discovered the loss while recuperating from illness at her mother’s home. She stated that her brother-in-law brought her and her son, Calvin Hamler, to her home so that she could get her car. According to Hamler, when they arrived at her home, they “went around to the back and . . . discovered what had gone on.” She stated that Calvin “brought my attention” to the fact that “maybe something’s been going on here” by pointing out that some patio chairs had been moved and that the back sliding door was open. She also stated that they immediately called the police after discovering the burglary and that she did not suspect anyone of the theft. When asked whether she had spoken to all of her neighbors to determine if they had seen or heard anyone, she replied, “I haven’t spoken to anybody, and the neighbor right next door, they don’t know anything.”

Hamler was later examined under oath, and her testimony differed in certain respects from her earlier statements. She testified that while she was recuperating at her mother’s home, “[d]uring the week prior to the incident,” her mother took her to her home “to get some changes of clothes.” Although she stated that she went inside and found everything to be normal, she also testified that when her mother brought her to get the clothes, her neighbor saw her in the driveway and asked, “ 'Did they ever find out who took your furniture? ’ ” Hamler testified that she replied, “ 'No.’ ” When asked how she discovered the break-in, she testified that her neighbor, Roland Wellmaker, called her mother’s house, talked with Calvin, and told him that a break-in may have occurred. Calvin Hamler testified during his deposition that without Hamler’s knowledge, he removed several items of furniture from the home. He claimed, however, that this furniture belonged to him. He testified that he told Hamler, after they “found out someone broke in the house,” that he had taken his furniture. According to Calvin, he made this statement to Hamler on the same day they discovered the theft. Calvin took a Icing-sized bedroom suite, a living room suite, a wall unit, and a dinette set, among other things. Calvin later sold the furniture to a man named “Michael.” Items reported stolen by Hamler included a dining room set, a bedroom suite, and an entertainment center.

After Allstate denied Hamler’s claim, she filed this action. Allstate moved for summary judgment on two grounds. It first contended that Hamler had not complied with the “Concealment or Fraud” provision of the insurance policy. Allstate also argued that summary judgment was required because Hamler had failed to provide certain requested documentation. The trial court denied the motion. We need not reach the issue of whether Hamler breached the concealment or fraud provision because we agree with Allstate’s contention that Hamler breached the following portion of the insurance contract concerning Hamler’s duties after a loss: “In the event of a loss to any property that may be covered by this policy, you must. . . give us all accounting records, bills, invoices and other vouchers, or certified copies, which we may reasonably request to examine and permit us to make copies.” Fulfillment of this requirement was a condition precedent to bringing suit. The policy recites that “[n]o suit or action may be brought against us unless there has been full compliance with all policy terms.”

After Hamler’s recorded statement was taken, Allstate sent Hamler a letter by certified mail requesting her to bring certain documents, as required by the insurance policy, to her examination under oath. The list of documents was specific and detailed. Hamler brought a portion of the documents, including bank statements, receipts or other documents concerning items involved in the loss, a copy of her driver’s license, photographs of items allegedly stolen, and a copy of the police reports. Hamler also agreed to provide copies of cancelled checks for the purchase of items involved in the lawsuit.

Hamler refused, however, to provide documentation showing her amount of income and debts at the time of the incident, claiming that this information was irrelevant. For example, she refused to provide federal and state tax returns for 1992-1995 or documentation reflecting income for the years 1995-1996, documents which would have borne upon the issue of possible financial motive for making the claim, according to Allstate. She refused to provide copies of telephone or other utility bills, which, Allstate argued, would have provided further information concerning Hamler’s financial motive. Nor would she provide monthly credit card or other loan statements, except to the extent that those documents showed the purchase of items allegedly stolen. Hamler also refused to provide any records showing hospital admissions and discharges, which may have been relevant to her claim that she was not at home when the alleged burglary occurred.

We agree with Allstate that Hamler breached the contract of insurance by failing to provide these documents, even though Hamler did provide certain other information. The issues here are similar to those in Halcome v. Cincinnati Ins. Co., 254 Ga. 742 (334 SE2d 155) (1985). In Halcome, the plaintiffs submitted a claim to Cincinnati Insurance Company after several items were allegedly stolen from their automobile. Like the insurance policy in this case, the plaintiffs’ policy required them to provide records and documents requested by Cincinnati as often as required by the insurer. Id. at 743. During the plaintiffs’ examination under oath, they provided some of the requested information. They “answered numerous questions regarding their activities at the time of the loss.” Id. But they also refused to answer questions or otherwise provide information concerning their income or sources of income. In particular, they refused, among other things, to provide federal income tax returns and W-2 forms for five years before the loss. Id. Cincinnati claimed, as does Allstate, that this information was needed to determine the plaintiffs’ “possible motives for submitting a false, fraudulent, or exaggerated claim, and that the failure of the [plaintiffs] to provide this information prohibited the company from completing its investigation of the claim.” Id.

The Supreme Court of Georgia concluded in Halcome that the plaintiffs breached their contract of insurance by failing to provide information or documents requested by Cincinnati, stating that if they “failed to provide any material information called for under . . . the policy . . . they breached the insurance contract.” Id. at 744. The Court found that because evidence of possible fraud existed, “[a] complete investigation of the claim include [d] an investigation of the suspected fraud.” Id. The plaintiffs’ recent income and sources of income were relevant, and failure to comply with the insurer’s requests was a breach of the terms of the insurance policy. Id. Here, too, Hamler contends that the information sought by Allstate is irrelevant. As in Halcome, however, Allstate was authorized to suspect fraudulent behavior. Evidence was presented that Hamler may have misrepresented material facts concerning her discovery of the claim, such as whether any of her neighbors may have seen suspicious activity and whether she had spoken with any neighbors concerning the alleged burglary. Furthermore, it appears that her own son may have taken at least some of the items she claimed were stolen. As in Halcome, the information sought by Allstate was relevant to its suspicion of fraud and to a possible financial motive. Hamler refused to comply with Allstate’s request for this relevant information and breached her insurance contract. Summary judgment in Allstate’s favor consequently was warranted.

We note Hamler’s argument that Allstate raised allegations of fraud only after this lawsuit was filed, unlike Halcome in which the insurer made a showing on the record that it suspected fraud before the insured filed suit. This contention is belied by the record. After taking Hamler’s recorded statement and examining her under oath, Allstate sent Hamler a letter stating that it denied her claim based on the concealment and fraud provision in her policy. Hamler filed suit some four months later.

Also contrary to Hamler’s argument, Diamonds & Denims v. First of Ga. Ins. Co., 203 Ga. App. 681 (417 SE2d 440) (1992) is not controlling. In that case, after the plaintiff’s warehouse was destroyed by fire, the plaintiff made a claim under its insurance policy. The insurer made a general request that plaintiff “produce all books and records proving the loss.” Id. at 682. The plaintiff’s officers did not produce these documents but explained that all books and records concerning the loss were destroyed in the fire. Id. Also, the plaintiff did not provide information sought by the insurer that related to other corporations previously operated by its principal shareholder. Id. The plaintiff’s principal shareholder and president did, however, offer to provide information concerning the company’s bank account and federal tax identification number. Id. In ruling on the issue of whether plaintiff breached a provision of its insurance policy requiring it to produce books and records concerning property loss, this court made the following statement:

A total failure to comply with policy provisions made a prerequisite to suit under the policy may constitute a breach precluding recovery from the insurer as a matter of law. If, however, the insured cooperates to some degree or provides an explanation for its noncompliance, a fact question is presented for resolution by a jury. Moreover, the insurer’s failure to act with diligence and good faith in securing the necessary information also will preclude the grant of summary judgment to the insurer on the issue of the insured’s compliance with policy prerequisites.

(Citations omitted.) Id. at 683.

We concluded that the trial court erred in finding that the plaintiff completely failed to comply with the insurance policy, noting that the record was “devoid of any evidence that appellee provided appellant with detailed lists of the specific documents it sought other than to reiterate in general language the policy requirement for production of ‘books and records.’ ” Diamonds & Denims, supra at 683. We also stated that despite the offer made by the plaintiff’s officers to provide certain pertinent documentation, no evidence showed that the insurer “followed up these generalized statements with specific requests, sought releases from appellant in order to obtain records from other sources, or otherwise pursued the matter further. [Cits.]” Id.

Decided January 17, 2001.

Claxton & Claxton, William P. Claxton, Kelley C. Herrin, for appellant.

Teresa A. Mann, for appellee.

We do not agree with Hamler that under Diamonds & Denims, because she provided some documentation requested by Allstate, a fact question exists as to whether she complied with the policy terms. Unlike the plaintiff in that case, Hamler refused to provide information that clearly would have reflected on possible financial motive for making a claim, despite a lengthy and detailed request by Allstate. During Hamler’s examination under oath, her counsel repeatedly and adamantly refused to agree to provide requested documentation showing her income, as did the plaintiffs in Halcome, despite numerous, clear requests by Allstate’s counsel, along with explanations by Allstate’s counsel as to the relevance of the requested documents. We also note that this court in Diamonds & Denims distinguished that case from Halcome, concluding that in Diamonds & Denims, fraud was not raised as an issue by the insurer before suit was filed. Id. at 684. But here, as previously discussed, Allstate showed that it suspected fraud before Hamler filed suit. Like the plaintiff in Halcome, Hamler failed to provide material information relevant to the insurer’s investigation of her claim and therefore breached the contract of insurance. The trial court erred in denying Allstate’s motion for summary judgment.

Judgment reversed.

Johnson, P. J., and Phipps, J., concur.

       Wellmaker testified during his deposition that while Hamler was away from her home over a two- or three-day period, he observed Calvin Hamler, along with two other men and one or two women, moving furniture from the home. He stated that Calvin told him that Hamler had given him the furniture.


source: Caselaw Access Project

author: Blackburn, Chief Judge.

license: Public Domain

text:
    A00A2084.
    TUNARKA v. THE STATE.
    (545 SE2d 15)
   Blackburn, Chief Judge.

Following a bench trial, Jobe Tunarka appeals his convictions for possession of marijuana with intent to distribute and possession of less than one ounce of marijuana. Because the State failed to prove venue for these convictions, we must reverse.

Although Tunarka did not challenge venue at trial, he did plead not guilty to the crimes for which he was indicted. Tunarka contends that, as such, he validly challenged venue, and, in return, the State counters that it was required only to show slight evidence of venue and that such evidence was provided.

Contrary to the State’s contention, our Supreme Court has recently decided that:

when a criminal defendant pleads not guilty, he or she has challenged venue, and the State will not be permitted to invoke the exception permitting it to establish venue with mere slight evidence. Quite to the contrary, whenever a criminal defendant pleads not guilty and is put on trial, the State is placed on notice that at trial, it will be required to establish venue beyond a reasonable doubt. Therefore, by its own definition, the slight evidence exception can never be invoked after a criminal defendant pleads not guilty and is placed on trial. . . . The State may establish venue by whatever means of proof are available to it, and it may use both direct and circumstantial evidence. It must, however, come forth in all criminal prosecutions with evidence to show beyond a reasonable doubt that venue is properly laid.

Jones v. State, 272 Ga. 900, 902-903 (537 SE2d 80) (2000).

In this case, the record contains no evidence establishing beyond a reasonable doubt that the crimes involved occurred in Cobb County, where Tunarka was tried. While there was testimony that a package that was ultimately delivered to Tunarka was intercepted at a Federal Express office on Blairs Bridge Road in Cobb County, there was no evidence in the record of the county in which Tunarka’s residence, where the drugs were found, was located. And, though the street address given for Tunarka’s apartment was 1425 Blairs Bridge Road, the address, alone, was insufficient to establish that the address was in Cobb County, and thus venue was not established beyond a reasonable doubt. Although the Federal Express office was located in Cobb County, and Tunarka’s residence was located on the same street, this does not establish that the residence was located in Cobb County.

The State also argues that the introduction into evidence of Tunarka’s driver’s license establishes venue. This license lists Tunarka’s address and references county “033” on its face. The State argues that, because Cobb County is the thirty-third county listed under OCGA § 36-1-1 which simply sets forth the names of Georgia counties in alphabetical order, this Court must presume that (1) the “033” on Tunarka’s license refers to Cobb County and (2) the jurors knew this correlation when they entered their verdict. This argument is without merit as there was nothing in the record or presented to the jury which would have established the fact that defendant’s residence was located in Cobb County. The record does not reflect that the trial court attempted to take judicial notice of the fact that “County 33” is Cobb County.

Decided January 17, 2001.

Forrest K. Shealy, for appellant.

Patrick H. Head, District Attorney, Maria B. Golick, Dana J. Norman, Assistant District Attorneys, for appellee.

Finally, the State argues that the trial court must have taken judicial notice of the fact that Tunarka’s apartment was located in Cobb County because it was an Austell address and Austell lies completely within Cobb County. The record, however, does not indicate that the trial court took judicial notice of this fact or allowed the parties to have an opportunity to be heard on this issue. Graves v. State. “Nor are we, as a reviewing court, free to resort to judicial notice to legitimize a judgment.” Bradley v. State. Therefore, we must reverse for failure to prove venue, and Tunarka’s remaining enumerations are rendered moot.

Judgment reversed.

Eldridge and Barnes, JJ, concur.

        Graves v. State, 269 Ga. 772, 776 (4) (a) (504 SE2d 679) (1998).

        Bradley v. State, 238 Ga. App. 490, 491 (519 SE2d 261) (1999).


text:
    A00A2339.
    TEASLEY v. THE STATE.
    (545 SE2d 17)
   Blackburn, Chief Judge.

This is the second appearance of this case before this court. In Teasley v. State, we affirmed Lee Anthony Teasley’s conviction for possession of cocaine with intent to distribute. Teasley now appeals the denial of a post-conviction motion to vacate his sentence. For the reasons that follow, we affirm.

After a jury convicted Teasley of possession of cocaine with intent to distribute, the trial court sentenced him as an habitual felon, to serve 30 years in confinement without eligibility for parole. Subsequently, Teasley filed a motion asserting that the trial court had failed to consider probating or suspending part of his sentence. Teasley argued that the trial court had been under the erroneous impression that he could be sentenced only to confinement. After a hearing, that motion was denied.

In this appeal, Teasley’s sole assertion of error is that the trial court erred at the original sentencing and continued to err at the hearing on his motion to vacate his sentence, by failing to recognize the court’s obligation to consider probating or suspending part of his sentence. He argues that the sentence imposed was void and that he should be resentenced with due consideration afforded to some type of clemency.

OCGA § 17-10-7 (a) requires a trial court to sentence a defendant to the maximum time prescribed by law for the offense for which he is convicted, in this case 30 years. While OCGA § 17-10-7 (a) prohibits parole, that Code section does not abrogate the discretion of the trial court to probate or suspend part of the sentence. Muhammad v. State. If, in the exercise of its discretion, the trial court declines to probate or suspend a part of the recidivist sentence, a defendant has no viable cause for complaint. Hunter v. State. Unless affirmative evidence shows otherwise, the trial court is presumed to have exercised its discretion in imposing sentence. Id.; see Bradshaw v. State

Prior to trial, the State notified Teasley of its intent to present evidence in aggravation at sentencing. The evidence showed that Teasley had received first offender treatment for forgery and unlawfully entering an automobile. Subsequently, Teasley was convicted of other crimes, including robbery by sudden snatching, possession of illegal drugs, burglary, and possession of cocaine with intent to distribute. While on probation from the burglary conviction, Teasley committed yet another felony, and the same judge presided at both trials.

At the sentencing hearing, the trial court offered Teasley an opportunity to present evidence in mitigation or extenuation. Before sentencing Teasley, the trial court took notice of Teasley’s four prior felony convictions, observing, “and this will be the fifth offense.” The trial court stated:

All right, Mr. Teasley, you having been found guilty by a Jury of this offense, plus the Habitual Felon count listed in Count II in the indictment, it becomes my duty to impose the maximum sentence under the section that you’ve been indicted under, which carries Thirty (30) years, and also under Code Section 17-10-7. Therefore, I sentence you to serve Thirty (30) years in the Georgia State Penitentiary, and further find that under that provision you should not be eligible for parole until the maximum sentence is served.

Decided January 17, 2001.

Roger A. Baruch, for appellant.

Kermit N. McManus, District Attorney, for appellee.

In expressly finding that Teasley “should not be eligible for parole,” we cannot say that the trial court did not give any consideration to probating or suspending part of the sentence. Compare Banks v. State. Unlike in Banks, there is no indication here that the trial court mistakenly believed that it could not have probated part of Teasley’s sentence. Id. at 757.

Finally, although no transcript of the May 15, 2000 hearing on Teasley’s motion to vacate was provided, the record demonstrates that the trial court was fully and thoroughly briefed about cases explicating the scope of a trial court’s discretion in imposing sentence under OCGA § 17-10-7. Since no evidence affirmatively shows otherwise, it must be presumed that the trial court properly exercised its discretion. See Hunter, supra. Accordingly, we affirm the trial court’s denial of Teasley’s motion to vacate his sentence.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

        Teasley v. State, 214 Ga. App. 646 (448 SE2d 906) (1994).

        Muhammad v. State, 242 Ga. App. 540, 541 (2) (529 SE2d 418) (2000).

        Hunter v. State, 237 Ga. App. 803, 806 (3) (517 SE2d 534) (1999).

        Bradshaw v. State, 237 Ga. App. 627, 629 (2) (516 SE2d 333) (1999).

       On December 5,1983, Judge Charles A. Pannell, Jr. sentenced Teasley to six years in prison and four on probation for burglary. In this case, Teasley was again before Judge Pannell on trial for possessing cocaine with intent to distribute. The drug offense occurred March 4, 1992, well before the completion of Teasley’s probation for the burglary conviction.

        Banks v. State, 225 Ga. App. 754, 756-757 (5) (484 SE2d 786) (1997).


author: Ruffin, Judge.

text:
    A00A1873.
    HURLEY v. THE STATE.
    (544 SE2d 508)
   Ruffin, Judge.

Collie Will Hurley pled guilty to one count of selling cocaine and was sentenced to six years in prison followed by four years on probation. Hurley then moved to withdraw his guilty plea, asserting that the plea was not voluntary because it was induced by his attorney’s promise that he would receive no jail time. Hurley claimed that he had given money to his attorney to “pay people off” to ensure that he received probation and that the attorney assured him that “money had been paid to influence the outcome of the case.” Hurley claimed that he was “tricked and misled” by his attorney, apparently because the promised bribery did not occur (or at least did not achieve the desired results). He asserted that his attorney “had an obligation . . . not to trick me into thinking the case was fixed.”

During an evidentiary hearing on the motion to withdraw the plea, Hurley’s trial counsel denied telling Hurley that he would pay anybody off or that Hurley would not get any jail time. The trial court denied the motion, stating in its order that it “makes all factual findings adverse to the defendant.” With respect to the attorney’s alleged promises that Hurley would receive no jail time, the court specifically found that “such promises were not made.” In making this finding, the court noted that Hurley failed to mention such promises during the guilty plea hearing, even though he was directly questioned by the court about whether anyone had offered him any hope or inducement to get him to plead guilty. Hurley now challenges the denial of his motion on appeal.

Hurley’s appellate brief is essentially a collection of platitudes regarding the relationship between a client and his lawyer, informing us that “a fundamental requirement of the criminal justice system is that a client must be able to trust his attorney” and that “[a] violation of that trust is despicable and cannot be condoned.” We note that such platitudes lose a bit of their moral edge when they are espoused by someone whose chief complaint appears to be that he could not trust his lawyer to bribe public officials to “influence the outcome of the case.”

Notably, however, while waxing poetic about the sanctity of the attorney-client relationship, Hurley completely fails to mention the trial court’s express finding that no promises were in fact made by his attorney. It is as if such finding were not even made. Instead, Hurley simply repeats his rejected claim that he “was duped by his own attorney into believing that he wouldn’t receive any jail time if he pled guilty.” We are reminded of the age-old principle of law, “Tell it to the judge.” Hurley told it to the judge, and the judge did not believe him. We will not say the judge was wrong.

Because the transcript of the guilty plea hearing reflects that the plea was freely and voluntarily entered, and because Hurley’s challenge to the voluntariness of the plea was based on factual allegations the trial court found to be untrue, the court did not err in denying the motion to withdraw the guilty plea.

Decided January 18, 2001.

H. Samuel Atkins, Jr., for appellant.

Dennis C. Sanders, District Attorney, William P. Doupe, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       Although Hurley’s motion and supporting affidavit make it clear that the alleged bribery was the reason he believed he would receive no jail time, he somehow fails to mention the bribery aspect of the case in his appellate brief, perhaps on the assumption that it would not be helpful to his appeal.

       See Cazanas v. State, 270 Ga. 130, 131 (508 SE2d 412) (1998) (on motion to withdraw guilty plea, “[t]he trial court is the final arbiter of all factual issues raised by the evidence”). See also Brower v. State, 230 Ga. App. 125, 127 (3) (495 SE2d 600) (1998) (trial court not required to believe defendant’s testimony that attorney told him his criminal record would come out at trial).

       Hurley admits this in his appellate brief, stating that “[a] facial examination of the guilty plea colloquy in this case shows no error. The constitutional contamination was subrosa [sic].”

       Because the trial court’s factual findings are dispositive of this case, we need not consider whether it would be a “manifest injustice” to refuse to allow a defendant to withdraw a guilty plea when he claims that he entered the plea only because of his mistaken belief that his attorney had bribed officials to fix the outcome of the case. See Raley v. State, 241 Ga. App. 713, 714 (1) (527 SE2d 590) (2000) (“after sentence is imposed a guilty plea may be withdrawn only to correct a manifest injustice”).


author: Johnson, Presiding Judge.

text:
    A00A1976.
    McKNIGHT v. WYRICK.
    (544 SE2d 507)
   Johnson, Presiding Judge.

When plaintiff Kristy McKnight failed to appear at the call of the civil trial calendar on Monday, February 28, 2000, Doyle Wyrick, the defendant in this action, moved to dismiss the case. The trial court granted the motion, dismissing the case without prejudice. McKnight appeals from the dismissal, arguing that her attorney notified the trial court of a conflict on the same day her attorney received notice of the trial date. We affirm the dismissal.

The following facts are undisputed. On January 28, 2000, the State Court of Gwinnett County published a two-week civil jury trial calendar. The calendar indicated that the cases listed, including McKnight’s personal injury action, would be tried over a two-week period beginning February 22, 2000, at 9:00 a.m. Unfortunately, the calendar itself is not included in the record; however, the trial court includes these facts in its order, and neither party disputes them. McKnight’s attorney reported for court on the morning of February 22, but the case was not called for trial at that time.

On Friday, February 25, 2000, at about 2:30 p.m., the court calendar clerk telephoned McKnight’s attorney and left a message notifying him that the McKnight action would be the first case tried on Monday morning. At about 3:30 p.m., McKnight’s attorney called the calendar clerk and notified her that he had forgotten that this was a two-week calendar and that the trial of this case would conflict with two criminal trials scheduled for the same time in Clayton County. Counsel told the clerk that he would send a conflict letter by facsimile to the court. The calendar clerk explained to counsel that the case would be called for trial Monday morning and that he was expected to be present. McKnight’s attorney indicated that, because of the conflict, he would not be present. At 4:31 p.m., he faxed the conflict letter to the court. He also left a message regarding the conflict at the office of opposing counsel.

McKnight’s attorney did not appear at the calendar call on February 28. Finding that counsel failed to timely file a conflict letter in accordance with Uniform Superior Court Rule 17.1, the trial court dismissed the case without prejudice. We hold that the trial court did not abuse its discretion in granting the motion to dismiss.

USCR 17.1 (B) provides, in relevant part, that when an attorney is scheduled “for a day certain” by trial calendar to appear in two or more courts, he shall give prompt written notice of the conflict to the court clerk, opposing counsel, and the judge. The rule further provides that the attorney is expected to give written notice such that it will be received at least seven days before the conflict date. USCR 14 authorizes the court to dismiss a civil action without prejudice where the party fails to respond to the call of the action for trial.

McKnight argues that USCR 17.1 (B) and its seven-day notice requirement do not apply here because the civil trial was not scheduled for “a day certain.” She contends that the trial court abused its discretion because there was no “day certain” until the clerk called her attorney on February 25 to tell him of the February 28 court date. She adds that counsel notified the state court and opposing counsel of the conflict on the very day the trial date became certain. We disagree.

Although there are no cases precisely on point, we hold that the trial of this case had a “day certain” as of January 28, when it was scheduled for the two-week trial period starting February 22, 2000. Counsel should have considered each of the days within this period, including February 28, his trial dates. It was his responsibility to give the required conflict notice at least seven days before February 22, 2000.

A trial court’s order of dismissal for failure to prosecute is discretionary and is subject to appellate review for abuse of discretion. We will not substitute our judgment for the trial court’s judgment where there is no obvious abuse of discretion. In this case, we find no clear abuse of discretion so as to authorize reversal.

Decided January 18, 2001

Michael B. King, for appellant.

Allen & Associates, John A. Pape, Jr., for appellee.

We note that dismissal seems a somewhat harsh result given counsel’s claim that a conflict existed and considering the fact that counsel notified the court and opposing counsel of the conflict before February 28, points which the trial court considered in its order. However, the dismissal was without prejudice. Therefore, McKnight had the opportunity to refile the action within the original limitation period or within six months after the dismissal.

Judgment affirmed.

Smith, P. J., and Phipps, J, concur.

       See generally Cohutta Mills, Inc. v. Bunch, 166 Ga. App. 395, 396 (2) (304 SE2d 431) (1983).

       See Hinson v. Castellio, 168 Ga. App. 301 (308 SE2d 705) (1983).

       See Cohutta Mills, supra.

       See generally Ector v. Unison Ins. Co., 228 Ga. App. 520, 521 (3) (492 SE2d 287) (1997).

       See OCGA §§ 9-2-61; 9-11-41 (b).


author: Phipps, Judge.

text:
    A00A2220.
    PALMER v. THE STATE.
    (544 SE2d 215)
   Phipps, Judge.

A jury found Nazarius Palmer guilty of five counts of aggravated assault, two counts of armed robbery, and one count each of burglary and kidnapping, in connection with the break-in of Harold Burke’s home and the assault and robbery of Burke and his guests. Palmer contends that the trial court erred by failing to charge the jury that the State bore the burden of disproving his affirmative defense of coercion. Palmer also challenges the sufficiency of the evidence. Because the trial court did not err and the evidence was sufficient, we affirm.

1. Palmer’s main defense was that his two companions coerced him into committing the crimes. At Palmer’s request, the trial court charged the jury on the defense of coercion. Palmer claims that the trial court also should have charged the jury that the State had the burden of proving beyond a reasonable doubt that Palmer was not coerced, even though Palmer did not request such a charge.

When a defendant raises an affirmative defense, such as coercion, and presents evidence to support it, “the State has the burden of disproving that defense beyond a reasonable doubt.” If the defendant requests a charge on this burden of proof, it is reversible error for the trial court to fail to give it. In the absence of a request, however, we “look[ ] to the instructions as a whole to determine whether error was committed.” Unless the jury charge as a whole impermissibly shifts the burden of proof to the defendant, the omission of a specific charge on the State’s burden to disprove the affirmative defense is not error.

In this case, the trial court instructed the jury that the defendant is presumed innocent; that the State bears the burden of proving every element of the alleged crimes; that “[t]here is no burden of proof upon the defendant whatever, and the burden never shifts to the defendant to prove innocence”; that the jury has a duty to acquit if the State fails to prove guilt beyond a reasonable doubt; that intent is an essential element of every crime and must be proven by the State; and that there is no presumption that the defendant acted with criminal intent. The court also instructed the jury on the elements of each crime with which Palmer was charged. Finally, the court gave a thorough charge on the law of coercion. “In no way could the jury charge in this case, taken as a whole, be considered burden-shifting.”

2. Palmer argues that the State failed to present sufficient evidence to disprove his coercion defense. On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. We do not weigh the evidence or evaluate the credibility of the witnesses. We will uphold the jury’s verdict as long as there is some competent evidence, even though contradicted, to support each element of the State’s case.

At trial, Palmer testified that his companions forced him at gunpoint to accompany them into Burke’s home to steal money and that he cooperated only because he feared for his life. The victims, on the other hand, testified that Palmer did most of the talking and that it did not appear that anyone was forcing him to act. One of the victims stated that all of the perpetrators, including Palmer, “were very calm and knew what they were doing.” Moreover, there were numerous contradictions between Palmer’s testimony and that of the victims. For example, Palmer said that he did not have a gun, but three of the victims testified that he did. The jury obviously concluded that Palmer’s claim of coercion was not credible, and we will not disturb that conclusion on appeal.

Decided January 18, 2001.

Juwayn N. Haddad, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Robert M. Coker, Assistant District Attorneys, for appellee.

Judgment affirmed.

Johnson, P. J., and Smith, P. J., concur.

       See OCGA §§ 16-3-26; 16-3-28.

       (Citation omitted.) Bishop v. State, 271 Ga. 291 (2) (519 SE2d 206) (1999).

       Id.

       (Citation omitted.) Shearer v. State, 259 Ga. 51, 54 (12) (376 SE2d 194) (1989).

        Griffith v. State, 169 Ga. App. 957 (315 SE2d 490) (1984).

       Id.; see also Stansell v. State, 270 Ga. 147, 148-149 (2) (510 SE2d 292) (1998).

        Jowers v. State, 244 Ga. App. 292, 293 (1) (535 SE2d 294) (2000).

       Id.

        Brinson v. State, 244 Ga. App. 40, 42 (537 SE2d 370) (2000).

       See id. (evidence was sufficient to disprove coercion defense where, among other things, victim testified that she did not see defendant being threatened or intimidated); Davis v. State, 232 Ga. App. 882, 883-884 (1) (502 SE2d 779) (1998) (affirming jury’s rejection of coercion defense where there was testimony that defendant acted in concert with co-defendant).


author: Andrews, Presiding Judge.

text:
    A00A2508.
    A00A2509.
    In the Interest of B. K. M., a child. In the Interest of T. W. C., a child.
    (544 SE2d 504)
   Andrews, Presiding Judge.

In each of the above cases, the State appeals from a juvenile court’s order granting a motion to suppress evidence seized after a Terry stop of the car in which the two juvenile appellees were riding. Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). Because the officers had a reasonable, articulable suspicion of criminal wrongdoing, we conclude the stop was justified and reverse.

In ruling on a motion to suppress, the trial court’s findings as to disputed facts are reviewed to determine whether the ruling was clearly erroneous. Vansant v. State, 264 Ga. 319, 320 (443 SE2d 474) (1994). “[W]here the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.” Id.

In this case, the facts are not in dispute, and we review it de novo. Officers had received several reports of youths driving by in a car and shooting darts at people with a blow gun. After taking information from the victims and witnesses, police issued a “be on the lookout” notice (BOLO) for a “small compact teal green vehicle.” The BOLO stated that witnesses had identified the driver as a white male with a crew cut and observed a black male passenger blowing the dart gun. The notice also gave the area in which the attacks occurred and stated that all the attacks took place between 3:00 and 8:00 p.m.

The officers investigating these attacks drove around in the general area described in the BOLO and spotted two juveniles driving a teal green Toyota Paseo. The car’s driver was a white male with a crew cut, and there was a black male in the passenger seat. The officers stopped the car. The car’s driver did not have a valid driver’s license, and there were illegal fireworks in plain view on the backseat.

Both juveniles were detained. When officers took B. K. M. home, his stepmother invited them in, and they saw a large cache of fireworks and a blow gun on a chair in the living room. Both T. W. C. and B. K. M. admitted to shooting the darts. They were charged with numerous counts of aggravated assault, battery and simple battery.

T. W. C. and B. K. M. then filed a motion to suppress all evidence, claiming the initial Terry stop was unauthorized. The juvenile court granted the motion, and this appeal followed.

In determining whether to grant a motion to suppress, the court must first decide whether the officer had a reasonable, articulable suspicion of criminal wrongdoing so as to justify a brief detention. Thomason v. State, 268 Ga. 298, 301 (486 SE2d 861) (1997).

“Terry v. Ohio, [supra], recognizes that although a police officer may not have probable cause to arrest someone, if there is a reasonable suspicion of criminal wrongdoing, based upon specific and articulable facts from which it can be determined that the action of the police officer is not arbitrary or harassing, the police officer may make a brief, investigatory detention of the individual. . . .”

(Citations omitted.) Brooks v. State, 206 Ga. App. 485, 488 (425 SE2d 911) (1992).

The validity of an officer’s investigative or protective conduct upon making a “Terry stop” is determined in each case by balancing the extent of the intrusion against the immediacy and importance of the interest in crime prevention or law enforcement which is sought to be advanced.

(Citations omitted.) State v. Golden, 171 Ga. App. 27, 30 (318 SE2d 693) (1984). “Momentary detention and questioning are permissible if based upon specific and articulable facts which, taken together with rational inferences from those facts, justify a reasonable course of inquiry not based on mere inclination, caprice, or harassment.” State v. Roberson, 165 Ga. App. 727, 729 (302 SE2d 591) (1983).

The test is whether, under the totality of the circumstances, the officer has “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” Vansant, supra at 320, quoting United States v. Cortez, 449 U. S. 411, 417-418 (101 SC 690, 695, 66 LE2d 621) (1981).

A stop pursuant to a lookout requires only specific and articulable facts which, together with rational inferences drawn therefrom, reasonably warrant the intrusion. Bright v. State, 265 Ga. 265, 279 (455 SE2d 37) (1995). Here, the juvenile court relied on Vansant v. State, supra, and State v. Burns, 238 Ga. App. 683 (520 SE2d 39) (1999), in granting the motion to suppress. Citing Burns, the court stated that because the vehicle was stopped a day after the last incident and several days after the earlier incidents, the stop was not justified because the car was less likely to still be in the general vicinity. We disagree.

This was an ongoing pattern of criminal activity, not a single incident; therefore, it was not unreasonable to assume the car would still be in the area and Burns is not on point.

This case is also distinguishable from Vansant, supra, in which the officer knew only that the suspect vehicle was a white van. Id. at 319. Here, the officers were looking for a teal green small compact car, driven by a white male with a crew cut with a black male passenger. They also knew the general vicinity to search for the car and had a time frame during which the car was likely to be driving through this area.

This Court has approved the denial of a motion to suppress where there were less particularized descriptions in the lookout notice. In Hestley v. State, 216 Ga. App. 573 (455 SE2d 333) (1995), we concluded there was reasonable suspicion where the stop was based on a lookout for a white panel van without many windows and believed to be a Chevrolet. Id. at 574. The Supreme Court of Georgia cited Hestley in Thomason v. State, 268 Ga. 298 (486 SE2d 861) (1997), when it held that a stop was reasonable when based on the description of the car as a brown 1978 or 1979 Oldsmobile Cutlass with a lighter brown top driven by a white male. Id. at 299.

In addition, as noted above, the court must also balance the extent of the intrusion against the importance of the interest in crime prevention which is at stake. Golden, supra at 30. “For the protection of innocent citizens, this decisional process will not admit of too much restraint, as long as it involves more than ‘mere caprice’ and does not violate the individual freedom of citizens from arbitrary and groundless police intrusion.” State v. Butler, 224 Ga. App. 397, 400 (480 SE2d 387) (1997).

Decided January 18, 2001.

Lydia J. Sartain, District Attorney, Kimberly A. Homer, Assistant District Attorney, for appellant.

Fox, Chandler, Homans, Hix & McKennon, David A. Fox, for appellees.

Accordingly, under the totality of the circumstances, we conclude that there was reasonable, articulable suspicion of wrongdoing so as to justify the brief stop. There is no evidence that the officers were acting on mere inclination or caprice or for the purpose of harassment, and the description of the car and its occupants was particularized enough so as to make the stop constitutionally permissible. See Philpott v. State, 194 Ga. App. 452, 453 (390 SE2d 664) (1990) (sufficient reasonable suspicion to stop car matching description in broadcast lookout); Givens v. State, 218 Ga. App. 415 (461 SE2d 579) (1995) (description of vehicle as white low-rider truck sufficient); Butler, supra at 398 (description of vehicle as a dark blue or black Porsche sufficient).

Judgments reversed.

Ruffin and Ellington, JJ., concur.


author: Eldridge, Judge.

text:
    A99A1798.
    CLARK v. CHOREY, TAYLOR & FEIL, P.C.
    (545 SE2d 34)
    Decided January 19, 2001.

      Rajan Bhandari, for appellant.

      Carr, Tabb, Pope & Freeman, Eric N. Van De Water, for appellee.
   Eldridge, Judge.

In Chorey, Taylor & Feil, P.C. v. Clark, 273 Ga. 143 (539 SE2d 139) (2000), the Supreme Court reversed the judgment of this Court’s opinion in Clark v. Chorey, Taylor & Feil, P.C., 240 Ga. App. 232 (522 SE2d 472) (1999). Therefore, we vacate our earlier opinion and adopt the opinion of the Supreme Court as our own.

Judgment affirmed.

Blackburn, C. J, Pope, P. J., Johnson, P. J., Barnes, Phipps and Mikell, JJ., concur.


text:
    A00A1888.
    ARMOUR v. THE STATE.
    (544 SE2d 516)
   Andrews, Presiding Judge.

Tommy Andrew Armour appeals from the judgment entered after his conviction by a jury of six offenses resulting from an assault on Chambers, his girlfriend, on November 26, 1998, and one count resulting from an incident on July 17, 1997. Armour contends that the evidence of burglary (Count 1) was legally insufficient and that the court erred in allowing a prior statement of the victim to be introduced.

1. Considering the second enumeration regarding sufficiency of the evidence first and viewing the evidence with all inferences in favor of the jury’s verdict, Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was that Armour and Chambers had previously lived together in Chambers’ duplex and that their relationship had been a violent one. Chambers rented both sides of the duplex under an oral month-to-month lease. She paid the utilities, except for the gas bill which was in Armour’s name. During the times when he did not stay with Chambers, Armour lived with his mother.

Chambers testified unequivocally that she had asked Armour to leave the duplex several days before November 26,1998, and that, on that date, Armour did not have permission to be in the duplex. Because she was afraid of Armour, who had been threatening her and following her, Chambers stayed with her mother on November 25,1998. Armour had called her there, wanting to talk and to come to Chambers’ duplex. Chambers told him not to come.

When Chambers returned to the duplex on November 26, she found Armour in the upstairs bedroom behind a door. Armour assaulted Chambers, leaving numerous bruises and a severely broken nose.

Armour argues that, since he once lived with Chambers, he could not be said to have entered the duplex “without authority’ as required by OCGA § 16-7-1 (a).

This argument is unpersuasive because

[o]nly authorized entry into a building or mistake of fact would constitute an affirmative defense to a burglary charge. Gray v. State, 163 Ga. App. 720 (294 SE2d 697) (1982). Once the victim had withdrawn the defendant’s authority to enter her house, the fact that the defendant may have once lived at the victim’s house and had left personal property within the house does not, in itself, give the defendant subsequent authority to enter. The Supreme Court held that “an entry into the separate residence of an estranged spouse, without authority and with the intent to commit a felony or theft therein, constitutes burglary.” State v. Kennedy, 266 Ga. 195, 196 (467 SE2d 493) (1996), overruling Mitchell v. State, 263 Ga. 129 (429 SE2d 517) (1993), reversing Kennedy v. State, 215 Ga. App. 232 (450 SE2d 252) (1994).

Pittman v. State, 230 Ga. App. 799, 802 (498 SE2d 309) (1998).

The evidence of burglary was legally sufficient.

2. Armour’s first enumeration is that the trial court erred in allowing the State to have Chambers read her handwritten statement, given during the investigation, in addition to testifying concerning the events, because this improperly bolstered her testimony.

During her direct testimony, after testifying as to what occurred on November 26, Chambers, over Armour’s objection, read the contents of the statement which she had made to Sheriff’s Deputy Libow on November 30, which was consistent with her trial testimony.

Pursuant to Woodard v. State, 269 Ga. 317, 320 (2) (496 SE2d 896) (1998), such prior consistent statements are admissible “only where (1) the veracity of a witness’s trial testimony has been placed in issue at trial; (2) the witness is present at trial; and (3) the witness is available for cross-examination.” Id.

Here, Chambers’ veracity had not been placed in issue when the prior consistent statement of November 30 was introduced. Admission of this statement was error. Robinson v. State, 246 Ga. App. 576, 581 (5) (541 SE2d 660) (2000); Phillips v. State, 241 Ga. App. 764, 766 (527 SE2d 604) (2000). The question, however, is whether overruling the objection was harmful. We find that it was not. First, after objecting to the statement during Chambers’ direct examination, Armour had her reread the statement during his cross-examination. Additionally, Deputy McKusker, who responded to the incident on November 26, testified as to the statement made to him by Chambers, which was consistent with her later statement to Libow. Although objected to by Armour as improper bolstering, this statement was admitted by the trial court as res gestae. That decision is not complained of here and was not clearly erroneous. Davison v. State, 241 Ga. App. 685, 687 (3) (527 SE2d 285) (1999); Taylor v. State, 226 Ga. App. 339, 340 (1) (486 SE2d 601) (1997); Wynn v. State, 225 Ga. App. 206 (2) (483 SE2d 352) (1997).

There was no harmful error. Astudillo v. State, 244 Ga. App. 612 (536 SE2d 271) (2000).

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

Decided January 19, 2001.

William B. Hollingsworth, for appellant.

Lydia J. Sartain, District Attorney, Lee Darragh, Assistant District Attorney, for appellee.

       Although the State argues that the testimony was inconsistent with her statement, we do not agree.


author: POPE, Presiding Judge.

text:
    A00A2029.
    In the Interest of S. L. H., a child.
    (544 SE2d 518)
   POPE, Presiding Judge.

S. M., the biological father of S. L. H., appeals from the juvenile court’s order terminating his parental rights.

The record and transcript show the following: S. L. H. was placed into the custody of the Dougherty County Department of Family & Children Services (DFACS) in April 1994, when she was four months old. She had been abused and neglected by her mother and had suffered severe permanent neurological damage as a result of this abuse and neglect. According to several orders entered during 1994, S. M. was incarcerated and did not appear at the hearings concerning the child. In 1996, DNA tests were conducted which showed a 99.59 percent probability that S. M. was the biological father of S. L. H. In October 1997, a hearing to extend temporary custody was held. The juvenile court noted that S. M. was in court on that date and that he had expressed an interest in parenting S. L. H., although he had taken no steps to legitimate her. Following that hearing, the juvenile court ordered S. M. to file a legitimation petition “or be subject to the loss of any potential parental rights.”

The juvenile court held a review hearing in February 1998. At that time, the court noted that the mother had surrendered her parental rights and that S. M. was currently incarcerated as a result of an alleged probation violation. S. L. H. remained in the custody of DFACS and in foster care throughout 1998 and 1999. S. M. remained incarcerated during this time and did not legitimate the child.

On October 29, 1999, a petition for termination of S. M.’s parental rights was filed. The petition contained the required notice under OCGA § 15-11-83 (h) informing him that he would lose all rights to his child and would not be entitled to object to the termination of his parental rights unless he filed a petition to legitimate within 30 days from receipt of the petition. In December 1999, more than 30 days after the filing of the petition, S. M. inquired about legitimating S. L. H. However, he had not legitimated S. L. H. by the time of the hearing on the termination petition held on April 4, 2000.

Decided January 19, 2001.

Christopher S. "Warren, B. Samuel Engram, Jr., for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney. General, William C. Joy, Senior Assistant Attorney General,

Following the hearing, the juvenile court entered an order terminating S. M.’s parental rights under OCGA § 15-11-81. On appeal, S. M. argues that the court terminated his parental rights based solely on his incarceration. However, the record is clear that in terminating S. M.’s parental rights the juvenile court considered factors other than S. M.’s incarceration in determining parental misconduct and inability. Furthermore, termination of S. M.’s parental rights was authorized because he had failed to legitimate S. L. H.

Although the juvenile court did not indicate that it was relying upon OCGA § 15-11-83 (i) in terminating [S. M.’s] rights, the statute is clear that a biological father who fails to seek to legitimate his child following receipt of proper notice may not thereafter object to the termination of his parental rights. The reason for such a prohibition is obvious — someone who refuses to take steps to acknowledge his paternity should not be able to contest the termination of his parental rights. There is no reason why such a rule should not apply where the juvenile court bases the termination on a finding of parental misconduct or inability pursuant to OCGA § 15-11-81.

(Punctuation and footnote omitted.) In the Interest of A. W., 242 Ga. App. 26, 27 (528 SE2d 819) (2000). In the Interest of D. M., 244 Ga. App. 361, 362-363 (1) (535 SE2d 7) (2000); In the Interest of E. D. T., 233 Ga. App. 774, 775 (505 SE2d 516) (1998). Here, there is no question that the required statutory notice regarding legitimation by a biological father was given. Moreover, in addition to the notice contained in the termination petition, the juvenile court ordered S. M. in 1997 to legitimate S. L. H. or risk losing his parental rights. And “his incarceration is no excuse for his inaction.” In the Interest of E. D. T., 233 Ga. App. at 775, fn. 4. The order terminating S. M.’s parental rights is affirmed.

Judgment affirmed.

Miller and Mikell, JJ, concur.

Shalen S. Nelson, Laura W. Hyman, Assistant Attorneys General, Paula T. Hanington, John C. Shelton, for appellee.

       Effective July 1, 2000, OCGA § 15-11-83 was redesignated as OCGA § 15-11-96.

       Currently OCGA § 15-11-96 (i).

       Currently OCGA § 15-11-94.


author: Smith, Presiding Judge.

text:
    A00A2316.
    MAHONE v. THE STATE.
    (544 SE2d 514)
   Smith, Presiding Judge.

Anthony Mahone was convicted by a jury on the charge of obstructing a corrections officer. His motion for new trial as amended was denied. Mahone appeals, contending that the trial court erroneously failed to instruct the jury on his sole defense of self-defense or justification and that his trial counsel’s failure to request such a charge constituted ineffective assistance of counsel. Because the record shows that Mahone raised more than one defense, and because we cannot conclude that Mahone met his burden of showing ineffectiveness under Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), we affirm.

Construed to uphold the jury’s verdict, evidence was presented that James Berich, an officer at Georgia State Prison, was attempting to remove all prisoners from, or “clear,” a particular corridor of the prison in order to allow inmates under protective custody to pass through the corridor. Berich saw Mahone walk through a cross-gate into the area he was attempting to clear, and he testified that he gave Mahone “several direct orders to return to the other side of the cross-gate.” Mahone did not obey but acted like “he was going to walk around” Berich. He described Mahone as “forcing his way through the other personnel that we were taking in [to]” the area.

Berich stated that he put his arm up to stop Mahone because he heard a door open behind him. He turned to see who was coming through the door, and Mahone stepped toward him and bit his left forearm. Berich used the heel of his right hand to strike Mahone on the jaw. He testified that Mahone then cursed at him, stated that Berich could not “do anything now because you hit me first” and struck Berich on his jaw. Berich stated that before Mahone bit him, he did not touch Mahone in any way. A nurse who examined Berich after the incident testified that she observed an oval-shaped discoloration, like a bruise, on his left inner forearm and a reddened area on his chin. This nurse also performed a medical examination on Mahone and saw no visible injury.

The testimony of another corrections officer, Patricia Blount, corroborated that of Berich in certain respects. Blount was working in a control room that controlled several gates and observed the altercation between Berich and Mahone. She testified that she and Berich “gave the directives to clear the corridor.” She opened a cross-gate, and while inmates on the corridor began to “clear off,” Mahone continued walking on the corridor. Blount stated that she and Berich told Mahone that he should exit the corridor but that he acted in a belligerent manner and “continued towards Officer Berich.” She testified that Berich gave Mahone a final order to exit the corridor, but Mahone did not comply, and “Berich took a step back and raised both arms up to motion the inmate not go any further on the corridor. Inmate Mahone lunged forward and bit officer Berich in his left forearm.” According to Blount, Berich then “instinctively struck the inmate to discharge his teeth out of his arm.” Because Blount then received a request to open another door, she was required to turn her attention away from Berich and Mahone, and she did not observe Mahone strike Berich.

Mahone’s account of events differed from those of Berich and Blount. He testified that he lagged about 50 feet behind other prisoners walking in the corridor because he stopped to obtain a pass to visit the hospital. He then walked to the gate at the end of the corridor and waited for it to be opened. After the gate was opened, he walked about five feet and saw Berich approaching him and yelling for him to “[g]et back behind the gate. You’ve got to clear for the [protective custody] inmates.” Mahone testified that he told Berich to “[l]ook here, that he wanted to catch up with the other inmates.” According to Mahone, Berich then “just went off on me, just jumped out of the blue, just started yelling and screaming at me.” When asked how the first physical contact occurred between Berich and himself, Mahone answered that when he “started around” Berich, Berich “throwed [sic] up his arms and I ran into his arms, and he knocked me back and just slapped me across the face.” He testified that Berich hit him first. Mahone claimed that after Berich hit him, he “tried to calm him down myself” and said, “Look here, Officer Berich, you know you didn’t have no business hitting me.” Mahone later admitted striking Berich on the chin, but claimed that he was simply defending himself. Another inmate testified, stating that he saw Berich strike Mahone first and that he did not observe Mahone bite Berich. This witness acknowledged, however, that Mahone had his back toward him, that Berich was facing him, and that he could not see whether Mahone struck Berich.

1. Mahone argues that the trial court was required to instruct the jury on self-defense or justification, despite his failure to request such a charge, because this was his only defense to the charge of striking Berich. He correctly contends that a trial court’s failure to give a charge on a defendant’s only defense, if some evidence supporting the defense was presented, is reversible error even in the absence of a request. See, e.g., Parker v. State, 230 Ga. App. 578, 579-580 (2) (497 SE2d 62) (1998). But here, we cannot agree with Mahone that self-defense was his only defense to the charge of obstructing a corrections officer. The indictment charged him with committing this offense by hitting and biting Berich. Although this language alleged more than one method of obstruction, the State was required to prove commission by only one of the methods charged:

When an indictment charges a crime was committed in more than one way, proof that it was committed in one of the separate ways or methods alleged in the indictment makes a prima facie case for jury determination as to guilt or innocence. It is sufficient for the State to show that a crime was committed in any one of the separate ways listed in the indictment, even if the indictment uses the conjunctive rather than disjunctive form.

(Citations and punctuation omitted.) Cronan v. State, 236 Ga. App. 374, 377-378 (3) (511 SE2d 899) (1999). Had the indictment alleged only that Mahone obstructed Berich by hitting him, we might be constrained to agree with him that the trial court was required to instruct on self-defense. But the indictment also alleged that Mahone committed the offense by biting Berich, and this allegation was supported by ample evidence introduced by the State. Mahone presented a separate defense to this evidence'— denial. We therefore cannot say that the failure of the trial court to instruct the jury on self-defense was reversible error.

2. Given our conclusion in Division 1, it follows that trial counsel’s failure to request a charge on self-defense did not constitute ineffective assistance of counsel requiring reversal under Strickland, supra. Strickland requires a defendant to show both deficient performance by trial counsel and that the outcome of the trial would have been different but for this deficiency. Ample evidence was presented from which the jury could have convicted Mahone of obstructing an officer by biting him. We will not reweigh the evidence or speculate as to which evidence the jury chose to believe. Varnadoe v. State, 227 Ga. App. 663, 665 (3) (490 SE2d 517) (1997). Accordingly, we cannot conclude that Mahone has met his burden of showing that the outcome of trial would have been different but for any alleged deficiency of trial counsel. We therefore affirm the trial court’s denial of Mahone’s motion for new trial.

Judgment affirmed.

Johnson, P. J., and Phipps, J., concur.

Decided January 19, 2001.

Brantley J. Swindell, for appellant.

J Thomas Durden, Jr., District Attorney, Jeffery N. Osteen, Joe G. Skeens, Assistant District Attorneys, for appellee.

       A cross-gate, or entry gate, controlled access of inmates coming from either end of the corridor.


text:
    A00A2460.
    KELLER v. THE STATE.
    (544 SE2d 511)
   Blackburn, Chief Judge.

Following a jury trial, Gerald W. Keller appeals his conviction for driving with a suspended license under OCGA § 40-5-121, contending that (1) he was excepted from the scope of OCGA § 40-5-121 because there was some evidence that his license had been revoked for being a habitual violator pursuant to OCGA § 40-5-58 and (2) the evidence was insufficient to support the verdict because the State failed to prove that he received notice of his license suspension. For the reasons set forth below, we reverse.

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

(Punctuation omitted.) Kovacs v. State. See Jackson v. Virginia.

Viewed in this light, the record shows that, during the early morning hours of June 3, 1999, Keller was pulled over for alleged erratic driving, and he was ultimately charged with: (1) driving under the influence (OCGA § 40-6-391); (2) driving after having been declared a habitual violator (OCGA § 40-5-58); (3) driving with a suspended or revoked license (OCGA § 40-5-121); (4) making an improper left turn (OCGA § 40-6-1); and (5) failing to show proof of insurance (OCGA § 40-6-10).

During trial, the State introduced a notice sent to Keller from the Georgia Department of Public Safety declaring Keller a habitual violator and revoking his license for a minimum of five years, beginning May 29, 1991. Keller argued to the jury that this document, which was a copy of the original, violated the best evidence rule and had been improperly and fraudulently modified by the State. He further argued that the State had not proven that he was still a habitual violator on the night he was pulled over, which occurred more than five years after the habitual violator notice was given. In addition, the State introduced into evidence a computer printout which showed that, as of April 18, 1997, Keller’s license had been suspended.

At the conclusion of the trial, the jury found Keller guilty of driving with a suspended or revoked license, making an improper left turn, and failing to provide proof of insurance. The jury acquitted Keller of driving under the influence, driving while a habitual violator, and failure to maintain lane. Keller appeals only with regard to his conviction for driving with a suspended or revoked license.

1. Keller contends that his conviction for driving with a suspended or revoked license under OCGA § 40-5-121 must be reversed because some evidence showed that he had been declared a habitual violator and that his license had been revoked pursuant to OCGA § 40-5-58.

OCGA § 40-5-121 (a) provides:

Except when his license has been revoked as a habitual violator under Code Section 40-5-58, any person who drives a motor vehicle on any public highway of this state at a time when his privilege to do so is suspended, disqualified, or revoked shall be guilty of a misdemeanor.

For the first time on appeal, Keller wishes to now admit that he was a habitual violator, which he staunchly denied during trial, in order to avoid punishment for the lesser offense of driving with a suspended license. We reject Keller’s spurious argument.

It is axiomatic that, in cases such as this, the jury acts as the finder of fact, and this Court cannot second-guess that process. Here, the jury was authorized to accept Keller’s argument that the State had not proven that he was a habitual violator at the time that he was stopped. Likewise, the jury was authorized to accept the evidence that Keller’s license was suspended at the time, thereby supporting a conviction under OCGA § 40-5-121. As such, the jury’s verdict was proper, and we find no merit in Keller’s attempt to whipsaw that verdict on appeal.

2. Keller also contends that his conviction for driving with a suspended license must be reversed because there was insufficient evidence that he had received notice of his license suspension. We are constrained to agree.

“In order to establish the offense of driving with a suspended license, the State must show that the accused was driving, that his license was suspended, and that the accused had received actual or legal notice of the suspension.” (Punctuation omitted.) Farmer v. State. On appeal, Keller argues only that the State failed to prove that he was notified of his license suspension.

A review of the record in this case leaves little doubt that . . . [Keller] was . . . aware of his license suspension. But here, as in every criminal prosecution, the State must prove every element of its case beyond a reasonable doubt. We are constrained to agree with [Keller] that the evidence presented in this case falls short of establishing beyond a reasonable doubt that at the time of the [arrest Keller] had received either actual or legal notice that his license had been suspended.

Id.

With regard to Keller’s driving record, the State offered the following evidence: (1) an official notice of revocation due to habitual violator status, effective May 29, 1991, sent to Keller by the Department of Public Safety; (2) an official notice of service of this license revocation, signed by Keller and dated September 25, 1992; and (3) a certified computer printout of Keller’s driving record which indicated that his license had been suspended.

Although the May 29, 1991 notice of revocation indicated that Keller had been ticketed for DUI three times in 1990, the trial court instructed the jury to disregard this notation. And, although the computer printout of Keller’s driving record included in the record but not admitted into evidence clearly indicated that he was ticketed for DUI in 1991,1992, and 1993, among various other moving violations, and that Keller received actual notice of such violations, the trial court allowed only a portion of the first page of the printout into evidence. This single page indicated that Keller’s license had been suspended, but it does not indicate that Keller received actual notice of this suspension.

During trial, when Keller moved for a directed verdict on the driving with a suspended license charge, the State argued and the trial court agreed that Keller had received notice of the suspension by operation of law due to his prior DUI convictions. While it is true that an individual is deemed to receive notice of his license suspension by operation of law upon a conviction for DUI, see Hale v. State, there was no evidence before the jury showing such a prior conviction, as all such evidence was specifically excluded by the trial judge in this case. As a result, the jury had no evidence before it on which to determine an essential element of the State’s case, namely that Keller had received notice of his license suspension.

Decided January 19, 2001.

Thomas J. Thomas, for appellant.

G. Channing Ruskell, Solicitor, for appellee.

Judgment reversed.

Eldridge and Barnes, JJ., concur.

        Kovacs v. State, 227 Ga. App. 870 (1) (490 SE2d 539) (1997).

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

        Farmer v. State, 222 Ga. App. 591 (474 SE2d 760) (1996).

        Hale v. State, 188 Ga. App. 524 (1) (373 SE2d 250) (1988).


text:
    A00A2538.
    IN THE INTEREST OF J. L. H. et al., children.
    (544 SE2d 520)
   Blackburn, Chief Judge.

Appellant, the putative father of J. L. H., T. L. H., T. R, S. R, and A. D. R, appeals the juvenile court’s termination of his parental rights, claiming that the evidence was insufficient to support the termination. As there is clear and convincing evidence that supports the termination, we affirm the juvenile court’s decision.

On appeal, we must determine

whether, after reviewing the evidence in a light most favorable to the lower court’s judgments, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost. This Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the trial court’s factfinding and affirm unless the appellate standard is not met.

(Citation and punctuation omitted.) In the Interest of R. N.

The record shows that, over a period of four years, the Department of Family & Children Services (DFACS) attempted to work with appellant and his wife to create a suitable environment for the children to no avail. During this time, appellant was in and out of jail on numerous criminal charges, including possession of burglary tools, battery, bail jumping, and violation of probation. Indeed, at the time of the termination hearing, appellant was incarcerated. In addition, appellant was addicted to cocaine. After years of attempts at reunification, the parental rights of appellant and his wife were finally terminated on June 14, 2000.

Before terminating a parent’s rights, a juvenile court must employ a two-prong test. In the first prong, the court must decide whether there is “present clear and convincing evidence of parental misconduct or inability.” OCGA § 15-11-81 (a). Parental misconduct or inability, in turn, is proven by evidence showing: (1) that the child is deprived; (2) that lack of proper parental care or control is the cause of deprivation; (3) that the cause of deprivation is likely to continue or will not likely be remedied; and (4) that continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. OCGA § 15-11-81 (b) (4) (A). ... In the second prong of the termination test, the juvenile court must consider whether termination of parental rights would be in the best interest of the child.

In the Interest of V. S.

There is no issue as to whether appellant’s children were deprived. The record contains previous orders of the juvenile court containing findings of deprivation, and, in the termination proceedings, the juvenile court took judicial notice of these orders. See In the Interest of J. L. Y. Moreover, clear and convincing evidence adduced at the termination hearing supports a finding of deprivation, as there was testimony that the children were kept in unsuitable living conditions without appropriate food, clothing, or care.

Linda Coe, the DFACS worker who handled appellant’s case from March 17, 1997, until July 10, 1998, testified that appellant’s home was unsafe, unsanitary, and inadequately stocked with food. In addition, the children’s hygiene was not properly maintained, and their daily needs were not being met. Although a family service worker was assigned to appellant’s home to assist with child care needs and housekeeping, appellant and his wife were not cooperative and did not improve the conditions in their home. And, despite the fact that DFACS provided appellant and his wife with a washing machine and dryer, as well as furniture for the home, the children were still kept in soiled clothing and inadequately cared for.

Henry Fliggins, another DFACS employee, conducted an investigation of appellant’s home in July 1998 and discovered that appellant had sold the washer, dryer, refrigerator, stove, and all of the furniture in the home, including the children’s beds. A likely motivation for appellant’s actions was to raise money to purchase drugs.

Willie Armstrong, another DFACS worker who handled appellant’s case from July 1998 through December 1998, testified that, despite DFACS counseling, appellant and his wife continued to pawn away their possessions and were not properly caring for their children. He also noted that, despite DFACS’ efforts as early as 1996, the conditions in which the children were raised had not improved.

Teresa Goodson, the DFACS employee who took over appellant’s case in April 1999, testified that a reunification plan had been developed for appellant and his wife. The goals of the plan were: (1) appellant and his wife would become and remain drug free; (2) appellant and his wife would learn appropriate parenting skills; (3) appellant and his wife would seek mental health counseling; (4) appellant and his wife would satisfy the children’s support obligations; and (5) appellant and his wife would provide the children with a stable, nurturing home. Goodson further testified that appellant did not follow this plan because: (1) there was great concern about his mental health; (2) he did not complete a parenting course; (3) he did not complete a drug treatment program; (4) he did not fulfill his support obligations; and (5) he did not maintain regular visitation with the children.

Dr. Wallace Kennedy, a psychologist, deposed that appellant informed him that he often used physical force on the children’s mother. Kennedy further opined that appellant was subject to delusions of persecution and that appellant did not place a high priority on reunification with his children.

Based on this clear and convincing evidence of deprivation, the juvenile court properly determined that appellant’s inability to adequately care for the children was the cause of such deprivation. As discussed above, appellant abused drugs, sold the children’s furnishings for questionable reasons, and committed numerous crimes which resulted in multiple incarcerations. Appellant’s conduct, therefore, provides clear and convincing evidence that the children’s deprivation originated from his neglectful child rearing and inappropriate behavior.

In addition, the evidence supports the juvenile court’s finding that the deprivation is likely to continue.

Although past deprivation is not sufficient for termination without a showing of present deprivation, the court can consider a parent’s past conduct in determining whether such conditions of deprivation are likely to continue. The court was entitled to infer from the evidence that, despite the best efforts of DFACS and many other social workers and charities, the same pattern of deprivation would continue [if] the children were reunited with their [father].

Decided January 19, 2001.

B. Samuel Engram, Jr., for appelldnt.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Laura W. Hyman, Assistant Attorneys General, Paula T. Hanington, for appellee.

(Citation and punctuation omitted.) In the Interest of R. N., supra at 204 (1) (c).

The record also supports a finding that the children are likely to be harmed by the continued deprivation. All of the children were improperly cared for under appellant’s neglectful supervision, and they have been thriving under foster care. When combined with his pattern of improper child rearing, appellant’s constant incarceration, failure to comply with DFACS case plans, and general inability to care for the children provide clear and convincing proof that reuniting the children with their father would be detrimental to them.

Finally, the record amply supports a finding that termination of appellant’s parental rights is in the best interests of the children. The same factors indicative of a parent’s inability to properly care for his children may also prove that termination of his rights is in the best interests of the children. In the Interest of G. K. J. And, although appellant now claims that he will change his errant ways, the outcome of this case remains the same. “[T]he decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.” (Punctuation omitted.) In the Interest of D. I. W.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

       The parental rights of the children’s mother were also terminated at the same hearing; however, she is not a party to this appeal.

        In the Interest of R. N., 224 Ga. App. 202 (480 SE2d 243) (1997).

        In the Interest of V. S., 230 Ga. App. 26, 27 (495 SE2d 142) (1997).

        In the Interest of J. L. Y., 184 Ga. App. 254 (1) (361 SE2d 246) (1987).

        In the Interest of G. K J., 187 Ga. App. 443, 444 (2) (370 SE2d 490) (1988).

        In the Interest of D. I. W., 215 Ga. App. 644, 646 (451 SE2d 804) (1994).