author: Miller, Judge.

text:
    A99A1731.
    MACK v. THE STATE.
    (529 SE2d 393)
   Miller, Judge.

Convicted of robbery by force, David Mack appeals on general grounds. He also contends that he was denied effective assistance of counsel. We affirm.

1. Mack argues that the evidence was insufficient to sustain the conviction for robbery by force because there was no testimony that he struck the victim or that the victim was injured. He concludes that at most the evidence supported a conviction of theft by taking.

OCGA § 16-8-40 (a) (1) provides that a person commits robbery when, with intent to commit theft, he takes the property of another from the person or the immediate presence of another by use of force. The victim testified that Mack came into her bedroom, pushed her down onto the bed, and forcibly took money from inside her dress. But Mack testified that he took the money from a chair in the living room and that at no time did he follow her into the bedroom or use any force against her.

The credibility of witnesses and the weight to be given their testimony are questions for the trier of fact, and it is not for us to determine or question how the jury resolved any conflicts in the evidence. Under the standard of Jackson v. Virginia, the victim’s testimony was sufficient evidence of force for a rational trier of fact to find Mack guilty beyond a reasonable doubt.

2. Mack contends that his trial counsel rendered ineffective assistance by (1) failing to visit him and discuss his defenses, (2) failing to move for a judgment of acquittal, (3) failing to interview the State’s witnesses, (4) failing to cross-examine three of the State’s witnesses, and (5) failing to call the victim’s nephew as a witness.

Strickland v. Washington sets forth the standard for determining whether trial counsel’s performance was so deficient that Mack was denied effective assistance under the Sixth Amendment. Mack must show that (1) counsel’s performance was deficient and (2) this deficiency so prejudiced his defense that a reasonable probability exists that the trial’s result would have been different but for that deficiency. “The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.”

(a) At the hearing on the motion for new trial, trial counsel testified that he met with Mack on three occasions prior to trial and even scheduled committal and probable cause hearings. Trial counsel also testified that the facts of Mack’s case were not complicated. Because “each situation must be judged upon its own circumstances and in light of its own degree of complexity,” counsel’s representation was not deficient merely because of the number of visits with Mack prior to trial. Further, contrary to Mack’s assertion, trial counsel testified that he discussed with Mack his only defense and his testimony. Based on this evidence, the trial court was authorized to conclude that Mack failed to establish that counsel’s performance was in fact deficient.

(b) Mack’s claim that trial counsel was ineffective for failing to move for acquittal is without merit because, as explained in Division 1, the evidence was sufficient to support the verdict, which precludes a showing of prejudice.

Decided February 7, 2000

Willie C. Weaver, for appellant.

(c) The decisions on which witnesses to call, whether and how to conduct cross-examination, which jurors to accept or strike, what trial motions should be made, and all other strategic and tactical decisions are the exclusive province of counsel after consultation with the client. Trial counsel’s strategic decisions made after thorough investigation are virtually unchallengeable.* “They provide no grounds for reversal unless such tactical decisions are so patently unreasonable that no competent attorney would have chosen them.”

Mack has not satisfied either prong of Strickland for his remaining assertions of ineffective assistance in that he has not shown how counsel’s failure to interview and cross-examine the State’s witnesses fell below the broad range of reasonable effective assistance or how counsel’s performance prejudiced his defense. Trial counsel explained that he did not feel that it was necessary to contact the State’s witnesses directly since he had the witnesses’ statements and that, as a tactical matter, he did not want to further reinforce certain unhelpful testimony on cross-examination. This was perfectly acceptable trial strategy and provides no evidence that counsel’s performance was deficient.

Moreover, both trial counsel and Mack testified that Mack did not assist his counsel and was not forthcoming with information. He cannot now complain of counsel’s alleged deficiencies that were caused by his own failure to communicate and fully cooperate with counsel.

The conduct of Mack’s defense counsel did not fall outside the range of reasonable professional judgment, nor did this performance prejudice his defense. Since the evidence supports the trial court’s finding that Mack was not denied effective assistance, that determination must be upheld on appeal.

Judgment affirmed.

Johnson, C. J., and McMurray, P. J., concur.

Kenneth B. Hodges III, District Attorney, Bradford R. Pierce, Assistant District Attorney, for appellee.

        Davis v. State, 223 Ga. App. 346, 347 (1) (477 SE2d 639) (1996).

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

        Davis, supra; Lockett v. State, 147 Ga. App. 102 (1) (248 SE2d 177) (1978).

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

       Id.; Etheridge v. State, 228 Ga. App. 788, 789 (2) (492 SE2d 755) (1997).

       (Citations and punctuation omitted.) Johnson v. State, 214 Ga. App. 77, 78 (1) (447 SE2d 74) (1994).

       (Citation and punctuation omitted.) Williams v. State, 219 Ga. App. 167, 168 (2) (464 SE2d 404) (1995).

       Cf. id.

        Hardegree v. State, 230 Ga. App. 111, 113 (4) (a) (495 SE2d 347) (1998); Hayes v. State, 211 Ga. App. 801, 803 (1) (440 SE2d 539) (1994).

        Johnson, supra at 79 (1).

        Stephens v. State, 265 Ga. 120, 122 (2) (453 SE2d 443) (1995).

       (Citation omitted.) Champion v. State, 238 Ga. App. 48, 49 (1) (b) (517 SE2d 595) (1999).

        Brewer v. State, 219 Ga. App. 16, 21 (7) (463 SE2d 906) (1995).

       Compare Bolden v. State, 224 Ga. App. 389, 390 (2) (c) (480 SE2d 395) (1997).

       See Harris v. State, 268 Ga. 412, 413 (490 SE2d 96) (1997).


source: Caselaw Access Project

author: Ellington, Judge.

license: Public Domain

text:
    A99A2042.
    NAIRON v. LAND et al.
    (529 SE2d 390)
   Ellington, Judge.

Joe Nairon appeals the trial court’s order granting summary judgment to G. Roger Land and the law firm of Starkey, Land & Crowley and the trial court’s order dismissing the complaint against Robert C. Koski and the Koski Firm, RC. in this abusive litigation suit. Nairon also appeals the denial of his motion for partial summary judgment based upon res judicata and collateral estoppel grounds. For the following reasons, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). Our review is de novo, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997). “[A] grant of summary judgment must be affirmed if it is right for any reason.” Bob v. Hardy, 222 Ga. App. 550, 551 (1) (474 SE2d 658) (1996) . “A motion to dismiss may be granted only where a complaint shows with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proven in support of his claim.” Croxton v. MSC Holding, Inc., 227 Ga. App. 179, 180 (489 SE2d 77) (1997) . Our review of orders dismissing claims is also de novo. Id. And when, as here, the trial court does not recite the grounds upon which the court granted the motion to dismiss, if the judgment is authorized for any reason, it must be affirmed. Gillis v. American Gen. Life &c. Ins. Co., 222 Ga. App. 891, 892 (476 SE2d 648) (1996).

Viewed in the light most favorable to Nairon, the record reveals that he filed suit against the defendants on November 13, 1995. His complaint alleged abusive litigation under OCGA § 51-7-80 et seq., intentional infliction of emotional distress, and negligent infliction of emotional distress. The claims against the defendants arose out of a suit brought against Nairon by a real estate developer, Steven Brock, and his firm, Brock Construction Company (collectively “Brock”). The defendants in the instant action are the lawyers who represented Brock in the underlying action which arose out of Brock’s 1993 attempt to develop real estate.

In March 1993, Brock sought to have commercial property rezoned so that he might develop a residential subdivision. Nairon and other members of a neighborhood committee made written and oral statements in opposition to the development, statements Brock claimed were defamatory. Brock hired the defendants to identify those responsible for the statements and to sue them. On April 14, 1993, Brock filed a complaint for damages and equitable relief against Nairon. On June 22, 1994, the superior court found that whether the suit was a “SLAPP [Strategic Litigation Against Public Participation] suit” as defined under OCGA § 9-11-11.1, “it was clearly an illegal act of intimidation” and was an attempt to chill Nairon’s First Amendment rights. Therefore, the court entered summary judgment in favor of Nairon. Brock filed a notice of appeal to this Court, and that appeal was docketed as Case No. A94A2731. During the pendency of that appeal, the trial court granted Nairon’s motion for attorney fees pursuant to OCGA § 9-15-14 and awarded $15,016.07 against Brock and the defendants, jointly and severally. Brock and the defendants appealed the award of attorney fees, and the appeal was docketed here as Case No. A95A0388. On October 11, 1994, this Court entered an order allowing Brock to withdraw his appeal from the grant of summary judgment in Case No. A94A2731. We affirmed the award of attorney fees without opinion on February 2, 1995.

Nairon then sued Brock and the defendants for abusive litigation under OCGA § 51-7-80 et seq. Brock settled with Nairon and was dismissed from the suit. Land and his firm moved for summary judgment on April 3,1996. Koski and his firm moved the court to dismiss the complaint for failure to state a claim. On February 22, 1999, the court entered an order granting summary judgment to all defendants and denying Nairon’s motion for partial summary judgment. On March 4, 1999, the court entered a “clarification order” granting Koski’s motion to dismiss. This appeal followed.

1. An action for abusive litigation “requires the final termination of the proceeding in which the alleged abusive litigation occurred and must be brought within one year of the date of final termination.” OCGA § 51-7-84 (b). The underlying civil proceeding in which the alleged abuse occurred, the SLAPP suit, terminated on October 11, 1994, the date on which the appeal from the order granting Nairon summary judgment was withdrawn. See Scott v. Liberty Mut. Ins. Co., 168 Ga. App. 815 (310 SE2d 772) (1983) (discussing statute of limitation in former tort of malicious use of process). When the appeal was withdrawn, the trial court’s order entering summary judgment became final. “It is clear that proceedings in the trial court are ‘terminated’ by the entry of a final judgment, after which time ‘the cause is no longer pending in the court below.’ OCGA § 5-6-34 (a) (1).” Id. at 816. Because the filing of a motion for attorney fees does not challenge the finality of the judgment on the merits or toll the time for filing a notice of appeal, OCGA § 5-6-38 (a), we hold that it does not extend or suspend the termination date of the underlying civil proceeding for purposes of determining the date upon which the statute of limitation begins to run. Because Nairon’s complaint was filed more than a year after the civil proceeding in which the abuse occurred terminated, it is time-barred. OCGA § 51-7-84 (b).

Nairon also alleged that the defendants’ opposition to his motion for attorney fees and subsequent appeal of the award were abusive. Assuming, without deciding, that the defendants’ assertions of fact in opposition to Nairon’s motion for attorney fees and the subsequent appeal of the award fall within the ambit of “civil proceeding” as defined in OCGA § 51-7-80 (1), the trial court properly granted summary judgment on that claim as well. The record reveals that Nairon did not give the defendants notice of an abusive litigation claim arising out of that proceeding sufficient to allow the defendants' an opportunity to voluntarily withdraw, abandon, discontinue, or dismiss their opposition to the motion or their appeal from the award. OCGA § 51-7-84 (a).

2. The trial court properly dismissed or granted summary judgment on Nairon’s claims for intentional and negligent infliction of emotional distress. The gravamen of both emotional distress claims is the defendants’ act of filing an abusive lawsuit. The abusive litigation statute provides the exclusive remedy for claims of abusive litigation. OCGA § 51-7-85. For the reasons cogently set forth in Phillips v. MacDougald, 219 Ga. App. 152, 155-157 (2) (g) (464 SE2d 390) (1995), we hold that a plaintiff is precluded from filing a claim of either intentional or negligent infliction of emotional distress as a remedy for abusive litigation.

3. Nairon also argues that the trial court erred in granting summary judgment because material issues of fact remain with respect to alleged “deprivation of property rights claims.” These alleged claims, which are not set forth in the complaint or in an amendment to the complaint, were never argued or briefed below.

[Tissues presented for the first time on appeal furnish nothing for us to review, for this is a court for correction of errors of law committed by the trial court where proper exception is taken. One may not abandon an issue in the trial court and on appeal raise questions or issues neither raised nor ruled on by the trial court.

(Citations and punctuation omitted.) Angell v. Hart, 232 Ga. App. 222, 223 (2) (501 SE2d 594) (1998).

4. For the reasons discussed above, the trial court did not err in granting summary judgment to the defendants. Therefore, error enumerated regarding the denial of Nairon’s motion for partial summary judgment is moot.

Decided February 7, 2000

Gary C. Harris, for appellant.

Zimmerman & Associates, James G. Killough, Shelby A. Outlaw, for appellees.

Judgment affirmed.

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


text:
    A99A2221.
    DIXON et al. v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY et al.
    (529 SE2d 398)
   Ellington, Judge.

Eric K. Dixon and James Sprowl appeal from the trial court’s order of July 13,1998, in this suit arising out of Metropolitan Atlanta Rapid Transit Authority’s (MARTA’s) decision to fire them for allegedly stealing MARTA property. In that order, the court (1) ruled that the appellants’ claims, “with the exception of their claim for malicious prosecution[,] are barred by collateral estoppel and res judicata”; (2) denied the appellants’ motion for partial summary judgment; and (3) denied the appellants’ motion for injunctive and declaratory relief. The appellants also challenge the trial court’s order granting MARTA’s motion in limine to exclude evidence of an alleged similar transaction. For the following reasons, we affirm in part and reverse in part.

Sprowl and Dixon were employed by MARTA as electrical power technicians. On March 31, 1993, the two were arrested by MARTA police for theft of company property. Samuel Wright, the appellants’ supervisor, sent the appellants to meet with George Barlow, the Deputy Director of Maintenance, and Ken McDonald, the appellants’ General Foreman. MARTA police officers escorted the appellants to MARTA headquarters, where the meeting continued. When the appellants arrived, they were interviewed by MARTA Officers Dilworth and Holt in the presence of a court reporter. Following the interview, Barlow told the appellants that their employment was being terminated for theft of MARTA property.

Pursuant to a warrant, MARTA police searched Dixon’s home and recovered several items allegedly belonging to MARTA. Dixon and Sprowl were arrested, taken to jail, and then released on bail within six hours of the arrest. Although true bills of indictment were returned against both Dixon and Sprowl, the Fulton County District Attorney eventually placed those indictments on the dead docket. The appellants then sought reinstatement of their employment by filing grievances first with their supervisor, then the maintenance director, and then with the Director of Labor Relations, Lewis Glenn. When these requests were denied, the appellants petitioned their union to arbitrate their grievances. The union agreed.

MARTA and the union submitted the grievances to the American Arbitration Association. MARTA agreed to honor the arbitrator’s decision with respect to both Dixon’s and Sprowl’s grievances, although only Dixon’s grievance would be heard. The appellants and MARTA were represented during the arbitration by their authorized union representatives, not by their attorneys. Although the arbitrator found that one witness, Thaddeus Lewis, had seen Dixon taking MARTA property from the premises, the arbitrator concluded that MARTA had not met its burden of proving that Dixon committed a theft and that, consequently, MARTA lacked “just cause” for firing him. The arbitrator ordered that Dixon be returned to his former position with back pay, all benefits, and seniority and that MARTA purge from his personnel file all references to the theft. After the award was entered, Dixon’s former attorney and MARTA’s representative asked the arbitrator to clarify whether Dixon’s back pay should be reduced by amounts he earned while employed elsewhere. The arbitrator then entered a “Clarification Order” stating that Dixon’s back pay should be reduced by all sums earned during the period he was terminated. The appellants were reimbursed back pay less those sums, and in April 1994, the appellants were reinstated to their jobs and their seniority within MARTA and their department.

In October 1996, the appellants sued MARTA and Thaddeus Lewis, alleging malicious prosecution, slander, and damage to reputation. The appellants amended their complaint in June 1997 to add claims for breach of the arbitrator’s award, continuing nuisance arising from MARTA’s alleged use of police officers who fabricated or spoliated evidence, and alleged deprivations of the appellants’ rights, privileges, and immunities arising under the Georgia Constitution.

1. The appellants contend the trial court erred in denying their motion for partial summary judgment on their claim that their immediate termination violated the due process and equal protection clauses of the Georgia and United States Constitutions. Appellants contend they should have been suspended with pay and given notice and a hearing prior to being terminated. This argument depends on a finding that appellants had a protected property interest in their employment. See Bd. of Regents &c. v. Roth, 408 U. S. 564, 577 (92 SC 2701, 33 LE2d 548) (1972). Based upon language found in the “Grievances” section of the Labor Agreement then effective between MARTA and Amalgamated Transit Union Division 732, appellants claim they are not terminable-at-will employees. They argue that the agreement’s grievance procedure created a property interest in their continued employment because it provided that MARTA may be required to reinstate employees to their employment if an arbitrator found they were terminated without “just cause.” We disagree with the appellants’ interpretation of the Labor Agreement.

In Georgia, “[generally, one in public employment has no vested right to such employment.” Barnes v. Mendonsa, 110 Ga. App. 464, 465 (2) (138 SE2d 914) (1964). Unless the employment arrangement is modified by additional contractual or statutory provisions, the “power to hire carries with it the implied power to fire.” Richmond County v. Jackson, 234 Ga. 717, 719 (1) (218 SE2d 11) (1975); see Brownlee v. Williams, 233 Ga. 548, 555 (2) (212 SE2d 359) (1975). In deciding whether a person possesses a property interest, a court must carefully sift through abstract needs and unilateral expectations until it locates a legitimate claim of entitlement. Bd. of Regents &c. v. Roth, 408 U. S. at 577. The source of such interests is not to be found in the Constitution. Rather their existence and dimensions are defined by “existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” Id. The right to continued employment may arise where there is a guarantee of employment for a fixed term, see Lentz v. City Council of Augusta, 48 Ga. App. 555, 556 (1) (173 SE 406) (1934), or where the employment allows termination only for cause, Brownlee v. Williams, 233 Ga. at 555 (2) (construing Civil Service Act of Fulton County). A property interest in employment can be created by local ordinance or by implied contract. Bishop v. Wood, 426 U. S. 341, 344 (96 SC 2074, 48 LE2d 684) (1976).

Appellants cite Lewis v. Hillsborough Transit Auth., 726 F2d 664 (11th Cir. 1983), for the proposition that an employee may have a protected property interest in continued employment by virtue of a collective bargaining agreement entered into between the employer and the employee’s union. We decline to address, at this time, whether a collective bargaining agreement may give rise to a property interest in continued employment. Assuming, however, for the sake of argument, that it does, we nevertheless find that the terms of this agreement are insufficient to create such an interest.

Section VII of the collective bargaining agreement between MARTA and the union provides:

The right to hire and discharge employees and the management of MARTA’s vehicles, shops, garages, offices, and all other departments, and of all of MARTA’s properties is reserved by MARTA and shall be vested exclusively in MARTA . . . except as expressly restricted in this contract.

The agreement does not contain a provision expressly stating that MARTA’s union employees cannot be terminated without just cause. Although Section IV of the agreement does create a procedure permitting union officers to negotiate grievances on behalf of union members, nothing in that section alters the at-will status of MARTA employees. The grievance section provides:

Employees of MARTA, members of the Union, who have been reprimanded, suspended, or discharged, shall have the right to have their cases taken up by the officers or committee of said Union with the duly accredited officers of MARTA, and in such cases where, upon investigation, it is found and mutually agreed to by the representative of the Union and representative of MARTA, that such employees were not reprimanded, suspended or discharged for just cause, they shall be reinstated to their former positions, and MARTA and the Union shall negotiate a proper remedy.

This section did not expressly prevent MARTA from firing covered employees without cause. Rather, it created an after-the-fact mechanism through which a reprimanded, suspended, or terminated employee might seek reinstatement and redress through the union. Because nothing in the collective bargaining agreement altered the appellants’ status as at-will employees, the agreement was insufficient to create a property interest in continued employment that would entitle the appellants to a pre-termination hearing. See Goetz v. Windsor Central School Dist., 698 F2d 606, 610 (2nd Cir. 1983). The trial court, therefore, properly denied appellants’ motion for partial summary judgment on this basis.

With respect to the appellants’ remaining arguments for summary judgment, we have reviewed them and find them to be without merit.

2. In conjunction with their motion for partial summary judgment, the appellants asked the trial court to declare a portion of the grievance procedure of the collective bargaining agreement unconstitutional and to enjoin MARTA from enforcing that provision in the future. The appellants argued the grievance procedure is unconstitutional to the extent that it did not allow them to be represented by counsel during arbitration. Pretermitting whether injunctive or declaratory relief would be appropriate under such circumstances, the appellants have provided us with no authority for the proposition that they have a Sixth Amendment right to counsel at this civil, voluntary, post-termination grievance proceeding. The trial court did not err in denying the motion for declaratory or injunctive relief.

3. The appellants argue that the trial court erred in sua sponte eliminating some of their claims. The trial court ruled that “[a]ll Plaintiffs’ claims with the exception of their claim for malicious prosecution are barred by collateral estoppel and res judicata.” The appellants do not challenge the legal basis of the court’s ruling; rather, they argue that they were not given an opportunity to present argument on those claims and that material issues of fact remain for jury resolution.

Although our law concerning motions for summary judgment allows a trial court to grant, sua sponte, a summary judgment, a trial court’s authority to do so is not unlimited. The grant of summary judgment must be proper in all other respects. This means that in addition to ensuring the record supports such a judgment, the. trial court must ensure that the party against whom summary judgment is rendered is given full and fair notice and opportunity to respond prior to entry of summary judgment. The crucial point is to [e]nsure that the party against whom summary judgment is sought has had a full and final opportunity to meet and attempt to controvert the assertions against him.

(Citations, punctuation and emphasis omitted.) Aycock v. Calk, 222 Ga. App. 763-764 (476 SE2d 274) (1996). We have reviewed the record and the transcript of the motion hearing. It does not appear from the record that either MARTA or the appellants briefed or presented oral argument on the claims the trial court struck. Therefore, we cannot conclude that the appellants had a full and fair opportunity to meet and attempt to controvert the assertions against them with respect to those claims. Consequently, we must reverse this portion of the trial court’s order. See id.

4. In their final enumeration of error, the appellants argue that the trial court erred in granting MARTA’s motion to exclude evidence of an alleged similar transaction involving the arrest and termination of another MARTA employee, Riley Thomas. The appellants have not supported this enumeration in their briefs with citation to the record, citation of authority, or legal argument. Therefore, we deem it abandoned pursuant to Court of Appeals Rule 27 (c) (2). BCS Financial Corp. v. Sorbo, 213 Ga. App. 259, 261 (2) (444 SE2d 85) (1994). Rhetoric is not a substitute for cogent legal analysis, which is, at a minimum, a discussion of the appropriate law as applied to the relevant facts. As we have stated, “[a]ppellate judges should not be expected to take pilgrimages into records in search of error without the compass of citation and argument.” Sulejman v. Marinello, 217 Ga. App. 319, 320 (1) (457 SE2d 251) (1995).

Decided February 7, 2000

Ward & Frison, Lee A. Frison, Jr., Robert M. Goldberg, Michael E. Bergin, for appellants.

Chambers, Mabry, McClelland & Brooks, Walter B. McClelland, Jo Beth Gosdeck, Thomas, Kennedy, Sampson & Patterson, Jeffrey E. Tompkins, Dennis R. Fortin, for appellees.

Judgment affirmed in part and reversed in part.

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


author: Andrews, Presiding Judge.

text:
    A99A2338.
    WILSON et al. v. ANDERSON-COLUMBIA COMPANY, INC.
    (529 SE2d 402)
   Andrews, Presiding Judge.

Bruce and Robert Wilson sued Anderson-Columbia Company, Inc. claiming its negligence while performing road construction on Interstate 75 caused a traffic backup which was a proximate cause of an automobile accident in which their mother was killed when her car was struck from the rear by a tractor-trailer. Prior to filing the suit, the Wilsons settled their claims against William Yaun (the truck driver), Taylor Transport (Yaun’s employer), and Transportation Casualty Insurance Company (their insurer). In consideration of the payment of $345,000, the Wilsons entered into a release and indemnification agreement with all three of these parties releasing them from further liability arising from the accident and agreeing to indemnify them and hold them harmless as to any claim subsequently brought against them by others asserting liability on the basis of contribution, subrogation, or indemnity. The agreement specifically recognized the possibility that the parties may be involved as third-party defendants in future litigation brought by the Wilsons against other joint tortfeasors allegedly responsible for the accident. The agreement stated that its intent was

that notwithstanding any such future claims for contribution or indemnity that [the parties] will not be liable for any amounts arising out of the claims [related to the accident] in excess of the $345,000.00 which is being paid pursuant to this Release and Indemnification Agreement.

Anderson-Columbia answered the Wilsons’ suit and filed a third-party complaint against Yaun, Taylor Transport, and Transportation Casualty Insurance Company alleging that these third-party defendants were liable to it on the basis of indemnification. Yaun failed to answer, and on July 30, 1998, the trial court entered a default judgment against Yaun on the third-party complaint, concluding that the allegations of the third-party complaint were established as to liability but not as to the amount of damages.

Citing the combined effects of the default judgment against Yaun and the indemnification agreement between the Wilsons and Yaun, Anderson-Columbia moved for summary judgment on the suit filed by the Wilsons. The basis for the motion was that, under the default judgment entered on the third-party complaint, Yaun must pay any damages awarded to the Wilsons in their suit against Anderson-Columbia. Furthermore, under the indemnification agreement between the Wilsons and Yaun, the Wilsons are not entitled to recover any amount of damages awarded from Yaun. Therefore, a jury trial to determine the amount of damages Yaun would be liable to pay is useless. The trial court agreed and on June 9, 1999, granted Anderson-Columbia’s motion for summary judgment. The Wilsons appeal from the grant of summary judgment.

We agree with the trial court and affirm the grant of summary judgment. In bringing its third-party complaint against Yaun, Anderson-Columbia alleged that any negligence attributed to it was passive and that Yaun was guilty of active negligence that was the proximate cause of the accident. This was a proper basis for the assertion of a third-party complaint against Yaun seeking indemnity. Jova/Daniels/Busby, Inc. v. B & W Mechanical Contractors, 167 Ga. App. 551, 553 (307 SE2d 97) (1983). When Yaun failed to file an answer, the trial court properly entered a default judgment on the third-party complaint in favor of Anderson-Columbia, which established the allegations of the complaint and Yaun’s duty to indemnify Anderson-Columbia for any damages awarded against it in the Wilsons’ suit. U. S. Xpress v. W. Timothy Askew & Co., 194 Ga. App. 730 (391 SE2d 707) (1990). The indemnification agreement between the Wilsons and Yaun makes clear that the Wilsons must indemnify Yaun for any damages Yaun must pay as a result of a jury verdict against Anderson-Columbia. Since under these circumstances the Wilsons would not be entitled to recover any damages which might be awarded, the trial court correctly granted summary judgment in favor of Anderson-Columbia.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

Decided February 7,2000

Kresses, Benda, Lenner & Schatten, Sid M. Kresses, Kenneth I. M. Behrman, for appellants.

Langdale, Vallotton, Linahan, Threlkeld & Wetherington, William P. Langdale III, for appellee.

       The Wilsons acted individually and as co-administrators of the estate of their mother, Marjorie Wilson Vance.

       The Wilsons also sued the Georgia Department of Transportation claiming its negligence contributed to the accident.


author: Phipps, Judge.

text:
    A00A0072.
    In the Interest of C. K., a child.
    (529 SE2d 395)
   Phipps, Judge.

The Henry County Department of Family & Children Services (DFACS) filed a petition to terminate R. K.’s parental rights to her daughter, C. K., born October 15,1997. On June 3,1999, the Juvenile Court of Henry County granted the petition.

Among other things, the court found that R. K.’s mental inability to care for the child is likely to continue or will not be remedied and that she failed to comply with or satisfactorily complete the goals of case plans designed for her reunification with the child even though DFACS made reasonable efforts to assist her in meeting these goals. R. K. challenges the sufficiency of the evidence to support these findings. We must decide whether the evidence, viewed in a light most favorable to DFACS, authorized any rational trier of fact to find by clear and convincing evidence that the parent’s rights to custody have been lost.

In an earlier proceeding, the juvenile court terminated R. K.’s parental rights to a son born on August 25, 1995. That termination order was affirmed in In the Interest of C. D. A. In that case also, R. K. contended that the evidence was insufficient to support a finding that her mental condition will not improve, and she argued that DFACS did not provide adequate assistance in setting up the reunification plans. These issues were resolved adversely to her.

Evidence presented in this case (and in the earlier proceeding) showed that during her pregnancy with C. K., R. K. did not receive prenatal care, tested positive for cocaine and alcohol, and displayed inappropriate and hostile behavior at the hospital where the child was delivered. As a result, DFACS took custody of C. K. one week after she was born. The juvenile court later found the child to be deprived.

In connection with the earlier proceeding, Dr. Medlin, a licensed psychologist, performed a psychological evaluation on R. K. on July 21, 1997. Medlin appeared as a witness in this case. He characterized R. K. as mentally deficient based on her intelligence quotient of 61. He also diagnosed her as paranoid schizophrenic with a high probability of chemical dependence. According to Medlin, R. K. meets the criteria for nine different mental illnesses. Medlin testified that it is very likely that R. K.’s mental illness impairs or prevents her from being able to raise C. K. and her condition is so severe that it might not be controllable even by medication. Dr. Medlin found it is unlikely that R. K.’s mental condition has changed since his 1997 evaluation.

In this case, DFACS designed three reunification plans which were in effect from shortly after C. K. was bom until the court entered its termination order. These case plans contained five goals requiring R. K. to (1) cooperate with DFACS; (2) obtain housing, maintain a sanitary home, permit inspection of it, and practice personal hygiene; (3) visit the child; (4) attend parenting classes and demonstrate parenting skills; and (5) demonstrate financial ability by paying child support and attempting to find employment or applying for Social Security benefits.

DFACS caseworker Cindy Wheeler testified that R. K. failed to comply with the case plans in most respects. R. K. was required to complete a psychological evaluation and drug and alcohol assessment, undergo psychiatric treatment to obtain medications to control her hallucinations, and attend counseling sessions to monitor her intake of medications. So that DFACS could determine whether R. K. should be reunited with the child, she was required to sign releases authorizing DFACS to communicate with her therapist. R. K. refused to sign the releases or cooperate in scheduling psychiatric appointments and attending counseling sessions. She also failed to find suitable housing, attend parenting classes, pay child support (even though she obtained lump-sum and periodic payments of Social Security benefits), or permit DFACS workers to inspect her home. On visits with the child, R. K. frequently had body odor so extreme that the room had to be sprayed after the visit. When DFACS workers offered assistance in rectifying her hygiene problem, R. K. became angry. Although R. K. maintained at the termination hearing that she had obtained psychological counseling and was taking medication prescribed for her condition, she failed to provide documentation requested by the court.

Pursuant to case plan requirements, DFACS offered assistance to R. K. in scheduling and providing transportation to psychiatric and counseling sessions, completing housing applications, and learning to maintain a clean and secure house, but she was uncooperative. Because of R. K.’s low IQ, Wheeler reviewed each case plan with her, explained the requirements, and made the case plans increasingly more detailed. Dr. Medlin attempted to assist R. K. in making appointments for counseling sessions, but again she did not cooperate.

Decided February 7, 2000.

Brown & Gill, Angela Y. Brown, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Laura W. Hyman, Assistant Attorneys General, James T. Chafin III, for appellee.

The foregoing evidence supports the court’s findings concerning the likelihood of continuation of R. K.’s mental condition and of her failure to comply with reunification plan goals. And although DFACS is not legally obligated to provide assistance in meeting these goals, the evidence shows that such assistance was provided here. The termination of parental rights was thus warranted in this case, as in the earlier proceeding.

Judgment affirmed.

Johnson, C. J., and McMurray, P. J., concur.

       OCGA § 15-11-81 (b) (4) (A) (iii), (B) (i).

       OCGA § 15-11-81 (b) (4) (C) (iii).

        In the Interest of A. O. A., 172 Ga. App. 364, 365-366 (2) (323 SE2d 208) (1984).

       238 Ga. App. 400 (519 SE2d 31) (1999).

       Id. at 402-403 (1).

       See In the Interest of A. S. H., 239 Ga. App. 565, 567 (1) (521 SE2d 604) (1999) and cits.; In the Interest of E. C., 225 Ga. App. 12 (482 SE2d 522) (1997); In the Interest of B. P., 222 Ga. App. 621 (475 SE2d 673) (1996); see also In the Interest of J. B. A., 232 Ga. App. 345 (501 SE2d 862) (1998); compare In the Interest of C. G., 235 Ga. App. 23 (508 SE2d 246) (1998); Hooks v. Baldwin County Dept. of Family &c. Svcs., 162 Ga. App. 142 (1) (290 SE2d 356) (1982); Harper v. Dept. of Human Resources, 159 Ga. App. 758, 760 (3) (285 SE2d 220) (1981).

        In the Interest of S. J. C., 234 Ga. App. 491, 494 (2) (507 SE2d 226) (1998).

        In the Interest of C. D. A., supra.


author: Barnes, Judge.

text:
    A99A1886.
    BLACK v. THE STATE.
    (529 SE2d 410)
   Barnes, Judge.

Pursuant to the grant of his motion for an out-of-time appeal, Christopher Jones Black, also known as Ralph Wells and Harvey Phillips, appeals his conviction for possession of cocaine. He contends the trial court erred by denying his motion for a directed verdict of acquittal because the evidence was insufficient to sustain his conviction. We disagree and affirm.

1. A motion for a directed verdict of acquittal should be granted only when there is no conflict in the evidence and the evidence with all reasonable deductions and inferences therefrom demands a verdict of acquittal as a matter of law. OCGA § 17-9-1 (a); Taylor v. State, 252 Ga. 125 (312 SE2d 311) (1984). On appeal a reviewing court may consider all the evidence in the case (Bethay v. State, 235 Ga. 371, 375 (219 SE2d 743) (1975)), and must view the evidence in the light most favorable to the verdict. Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436) (1984). Further, the test established in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), is the appropriate one to use when the sufficiency of the evidence is challenged, whether the challenge is from the denial of a directed verdict or. the denial of a motion for new trial based upon alleged insufficiency of the evidence. Humphrey v. State, supra, 252 Ga. at 527 (1).

2. Black contends the trial court erred by denying his motion for a directed verdict of acquittal because he alleges the only evidence showing that he possessed the cocaine was the uncorroborated testimony of an accomplice. Black correctly asserts that in this State a defendant may not be convicted solely on the uncorroborated testimony of an accomplice. OCGA § 24-4-8. The corroborating evidence must be independent of the accomplice’s testimony, and it must connect the defendant to the crime or lead to the inference that he is guilty. Castell v. State, 250 Ga. 776, 780 (1) (c) (301 SE2d 234) (1983). Nevertheless, only slight evidence is sufficient for corroboration (Clanton v. State, 208 Ga. App. 669, 670 (1) (a) (431 SE2d 453) (1993); Jester v. State, 151 Ga. App. 277, 278 (259 SE2d 680) (1979)), and the corroborating evidence may be circumstantial. Harris v. State, 165 Ga. App. 186 (299 SE2d 393) (1983). Moreover, whether there was sufficient corroboration is a question for the jury. Clanton, supra, 208 Ga. App. at 670 (1) (a).

3. Viewed in support of the verdict, the evidence shows that a detective from the Forest Park Police Department on loan to the Clayton County Narcotics Unit Task Force testified that, with the assistance of a drug source, he set up a controlled buy in a Zesto’s parking lot. The source made a telephone call to a subject known to the detective as “Chris.” Later, a vehicle drove up, and the source went to the passenger side of the car, appeared to have a conversation with the passenger, and handed money to a black male in the passenger seat. Earlier in the evening the detective had given the source a marked $100 bill with1 which to make a drug buy.

When the vehicle drove away, the detective made a radio call to other officers and gave them a description of the car and its tag number. He then recovered what appeared to be crack cocaine from the source. After driving to where the other policemen had stopped the car, he assisted the other officers. Subsequently, the detective searched the car and found the marked $100 bill and some suspected cocaine hidden in the back of the driver’s seat.

Decided February 8, 2000.

Patricia F. Angelí, for appellant.

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

The driver of the car in which Black was riding also testified. He stated that, while with him, Black received a page on his pager, answered the call, and agreed to meet someone at Zesto’s. When they arrived at Zesto’s parking lot, somebody came up to the passenger’s side window, Black handed him some “dope,” and some money came through the window.

Under the circumstances, the testimony of the detective regarding what he heard about setting up the deal, his observation of the drug transaction, and his later finding the marked bill was at least slight evidence from which the jury could conclude that evidence, independent of the accomplice’s testimony, connected Black to the crime and led to the inference that Black was guilty. Castell v. State, supra, 250 Ga. at 780 (1) (c); Clanton v. State, supra, 208 Ga. App. at 670. Accordingly, we find there was sufficient corroboration of the accomplice’s testimony for the case to be submitted to the jury.

Reviewing all the evidence in the light most favorable to the verdict, the record reveals ample evidence from which any rational trier of fact could find beyond a reasonable doubt that Black was guilty of the offense charged. Jackson v. Virginia, supra, 443 U S. 307. Accordingly, the trial court did not err by denying Black’s motion for a directed verdict of acquittal.

Judgment affirmed.

Blackburn, P. J., and Eldridge, J., concur.


author: Blackburn, Presiding Judge.

text:
    A00A0098.
    MARTIN v. THE STATE.
    (529 SE2d 417)
   Blackburn, Presiding Judge.

Following a jury trial, Kenny Martin appeals his convictions of three counts of selling cocaine. Martin contends that the evidence was insufficient to support the jury’s verdict. We affirm.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Martin] 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 standard for reviewing a denial of a motion for a directed verdict of acquittal is whether under the rule of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense. Moreover, the test established in Jackson is the proper test for us to use when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new trial based upon alleged insufficiency of the evidence.

Decided February 8, 2000.

Lon P. Kemeness, for appellant.

C. Paul Bowden, District Attorney, Holli G. Martin, Assistant District Attorney, for appellee.

(Citations and punctuation omitted.) Lester v. State, 226 Ga. App. 373, 376 (2) (487 SE2d 25) (1997).

In the present case, the evidence showed that Richard Rogers purchased cocaine from Martin on three separate occasions. Rogers testified that he worked for the Irwin County Police Department as a paid confidential informant and that he was provided with a video-camera to film his drug purchases. Susan Strickland, a lab scientist with the State Crime Lab, testified that the substances obtained from Martin tested positive for cocaine. Additionally, the jury viewed a videotape depicting Martin selling cocaine to Rogers.

Having reviewed the evidence in the light most favorable to the jury’s determination, we conclude that a rational trier of fact could have found Martin guilty of selling cocaine beyond a reasonable doubt. See Jackson v. Virginia, supra.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.


author: McMurray, Presiding Judge.

text:
    A00A0388.
    JACKSON v. K-MART CORPORATION.
    (529 SE2d 404)
   McMurray, Presiding Judge.

Appellant-plaintiff Joan Jackson brought this trip and fall renewal case against appellee-defendant K-Mart Corporation seeking damages for the injuries she sustained after tripping and falling over a floor mat, a portion of which was rolled up, in the vestibule of a Decatur K-Mart store. The superior court granted K-Mart’s motion for summary judgment, concluding that Jackson failed to show that K-Mart had superior knowledge of the alleged hazard. Jackson now appeals.

K-Mart supported its motion for summary judgment by the affidavit of Jack Leslie, a door greeter at its Decatur store at the time of Jackson’s fall. Therein, Leslie testified that “[a]s a Door Greeter, I have never seen the mats at the front entrance of the Store roll up and I have no knowledge of any accidents or trips on the mats due to the mats rolling up from a gust of wind.” In this case as first filed, Jackson deposed she tripped and fell because a sudden gust of wind caused a portion of one of the floor mats in the vestibule of the Decatur K-Mart store to “roll[ ] up in front of [her]” as “[she] was about to step on it.” Citing Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28 (343 SE2d 680), the superior court found that plaintiff contradicted this testimony by her affidavit in support of her response to K-Mart’s motion for summary judgment in the case sub judice. Though the record reflects that Jackson did not request her affidavit be included in the record on appeal, she does not dispute the superior court’s order insofar as it pertinently provides that the affidavit “aver [red] that [Jackson] ‘do[es] not have personal knowledge of what caused the rug to roll-up. I could speculate as [to the] cause, but I do not know.’ ”

Upon the appeal of the grant of summary judgment, this Court reviews the evidence de novo. Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832). Summary judgment is proper where the movant shows no genuine issue of material fact exists and entitlement to summary judgment as a matter of law. Rivergate Corp. v. BCCP Enterprises, 198 Ga. App. 761 (1) (403 SE2d 65). A defendant carries this burden by demonstrating the absence of evidence as to one essential element of plaintiff’s case. Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (405 SE2d 474). Should the defendant do so, the plaintiff “cannot rest on [her] pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Id. at 491.

Jackson contends that the superior court erred in granting K-Mart summary judgment for its failure to allow the jury to resolve the causation question as to whether the floor mat she tripped over was vulnerable to being rolled up by the wind because it was worn thin at its edges. Held-.

“On the issue of the fact of causation, as on other issues essential to the cause of action for negligence, the plaintiff, in general, has the burden of proof. The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to grant summary judgment for the defendant.” (Citations and punctuation omitted.) Head v. Sears Roebuck & Co., 233 Ga. App. 344, 345 (503 SE2d 354) (1998). See Sharfuddin v. Drug Emporium, 230 Ga. App. 679, 682-683 (3) (498 SE2d 748) (1998). Likewise, “it is a well settled principle of negligence law that the occurrence of an unfortunate event is not sufficient to authorize an inference of negligence.” (Citations and punctuation omitted.) Head, supra at 346.

(Emphasis supplied.) Christopher v. Donna’s Country Store, 236 Ga. App. 219, 220 (1) (511 SE2d 579).

Pretermitting whether the superior court properly construed Jackson’s explanations of her fall by deposition and affidavit as self-contradictory, Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. at 28, supra, by her brief on appeal Jackson admits that she offered no more than speculation in deposing that a strong gust of wind caused the floor mat which tripped her to roll up suddenly. Jackson offers only further speculation in arguing that the wind was able to lift the floor mat on which she tripped because it was “worn” thin on its edges — this given Leslie’s unrebutted testimony that he was aware of no accident in the vestibule of the K-Mart store caused by the floor mats therein; that he had never seen the floor mats rolled up; and that the floor mats, though covered by carpet tapered from “a quarter of an inch to nothing” to prevent stumbling, were not susceptible to rolling up when blown by the wind because each was backed by thick, heavy rubber which self-adhered to the floor “just like a suction.”

It is well settled that Robinson v. Kroger Co., 268 Ga. 735 (1), 743, 747-748 (493 SE2d 403) “significantly lightens the burden of proof load on plaintiffs with regard to their failure to exercise ordinary care and requires defendants to establish a defense to liability. . . .” Christopher v. Donna’s Country Store, 236 Ga. App. at 220 (1), supra. Robinson, however, did not relieve a plaintiff of the burden of proving a prima facie case of negligence upon a showing of the defendant’s actual or constructive knowledge of the hazard. Christopher v. Donna’s Country Store, 236 Ga. App. at 220-221, supra.

Decided February 8, 2000.

Williams & Armwood, Rita T. Williams, John H. Armwood, for appellant.

F. Earl Wiggers, Jr., for appellee.

Viewed in a light most favorable to Jackson, the evidence fails to establish any defective condition or hazard on K-Mart’s premises. Even if the contrary were the case, the evidence is insufficient to show that such a hazard proximately caused Jackson to fall. By her own admission on appeal Jackson can offer no more than speculation as to the cause of her fall. She points to no evidence otherwise of record establishing causation. Under these circumstances, the superior court properly granted summary judgment to K-Mart.

Judgment affirmed.

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

       In granting K-Mart summary judgment, the superior court found as fact that the only reasonable construction which may be given Leslie’s testimony in this regard was that the “mats were tapered on the edges to prevent people from ‘stumbling’ over them.” We will not disturb this finding of fact on appeal in that it is consistent with evidence of record. OCGA § 9-11-52; Prime Bank v. Galler, 263 Ga. 286, 288 (1) (430 SE2d 735).


text:
    A00A0549.
    In the Interest of A. B. S., a child.
    (529 SE2d 415)
   McMurray, Presiding Judge.

On the morning of May 20, 1999, 15-year-old A. B. S., then a tenth grader at Heritage High School in Conyers, arrived at school carrying two fully loaded, concealed weapons: a 22-caliber lever-action rifle with a sawed-off stock and a .357 magnum revolver. He walked into an open area where 150 or so students were gathered before classes, retrieved the rifle from the inside of his pants leg, and fired all 12 rounds. Six students were struck and injured. Two other students narrowly escaped injury when bullets hit books they held.

Students chased A. B. S. outside. He withdrew the revolver from under his shirt and shot at one of the students, who jumped out of the line of fire. A. B. S. fired two more shots, dropped to his knees, and put the barrel of the gun in his mouth. The assistant principal, Cecil Brinkley, coaxed A. B. S. into surrendering the weapon. He was immediately taken into custody.

Petitions were filed in juvenile court alleging A. B. S. committed numerous delinquent acts, which if committed by an adult would constitute the offenses of aggravated assault (twelve counts), carrying firearms within a school building (two counts), possession of a revolver by a person under eighteen, possession of a firearm during the commission of a crime (two counts), and cruelty to children (four counts).

The State filed a petition to transfer the case to the Superior Court of Rockdale County. The petition was granted, and A. B. S. appeals. Held:

In his sole enumeration of error, A. B. S. alleges that the juvenile court erred in determining that he is not committable to an institution for the mentally ill. We disagree.

“In order to transfer a delinquency case for criminal prosecution, the juvenile court must determine that ‘there are reasonable grounds to believe that: . . . (B) The child is not committable to an institution for the mentally retarded or mentally ill[.] . . .’ OCGA § 15-11-39 (a) (3). Such a determination must, of course, be supported by competent evidence, and the burden of presenting such evidence lies with the state. See In the Interest of T. J. M., 142 Ga. App. 415 (236 SE2d 152) (1977). See also C. L. A. v. State of Ga., 137 Ga. App. 511 (3) (224 SE2d 491) (1976).” L. K. F. v. State of Ga., 173 Ga. App. 770 (2), 771 (328 SE2d 394).

In the Interest of S. P., 189 Ga. App. 829 (377 SE2d 911). See also In the Interest of E. J. P., 236 Ga. App. 221, 222-223 (1) (511 SE2d 290).

Appellate review of the juvenile court’s decision is limited to ascertaining whether some evidence existed to support it. “Determinations of a juvenile court made on an exercise of discretion, if based upon evidence, will not be controlled by this court.” (Citation and punctuation omitted.) In the Interest of K. S. K., 216 Ga. App. 257, 258 (2) (454 SE2d 165).

Under OCGA § 37-3-1 (9.1) (A) and (B), a person is committable to a psychiatric hospital if he is mentally ill and “presents a substantial risk of imminent harm to [himself] or others, as manifested by either recent overt acts or recent expressed threats of violence which present a probability of physical injury to [himself! or other persons. . . .”

Ample evidence supported the juvenile court’s determination that as of the date of the hearing, A. B. S. did not meet the criteria for involuntary commitment. The State presented the testimony of John J. Edwards, Ph.D., a forensic psychologist who conducted interviews with A. B. S., his family, and his psychiatrist, as well as other staff members at the detention facility where A. B. S. was housed. This expert witness also performed various psychological tests on the child. Based on the interviews and test results, Dr. Edwards concluded that A. B. S. was not psychotic: he did not suffer from delusions or hallucinations and was not otherwise out of touch with reality.

Dr. Edwards testified that A. B. S. likely had been suffering from a low-level depression for a number of years. Dr. Edwards added that although A. B. S. would have required hospitalization immediately after the incident if he had not been placed in a secure setting where his behavior could be observed, A. B. S.’s current mental condition did not warrant involuntary commitment. Dr. Edwards pointed out that although A. B. S. had scratched an “X” from his shoulders to his waist with his fingernails and had otherwise acted out in the detention center, these episodes occurred in response to disciplinary measures. Moreover, Dr. Edwards testified that A. B. S. had since been placed on medication, Depakote, that successfully controlled his anger.

Decided February 8, 2000.

Garland, Samuel & Loeb, Edward T. M. Garland, Donald F. Samuel, for appellant.

Richard R. Read, District Attorney, for appellee.

Finally, Dr. Edwards testified that several weeks into his detention, A. B. S. had reported hearing high-pitched screams as well as experiencing vivid dreams that recreated the incident in his mind. However, Dr. Edwards believed that A. B. S. had suffered an acute stress reaction to the incident and testified that the symptoms subsided after the child was given Depakote.

Eddy Regnier, Ph.D., a clinical psychologist practicing in Florida who testified on behalf of A. B. S., rendered a diagnosis of “major depression, recurrent, severe with psychotic features.” Dr. Regnier believed that A. B. S. was severely depressed for periods of time, but less so at other times. Dr. Regnier stated that he believed that A. B. S. had auditory hallucinations and abnormal thinking, which indicated psychosis. Dr. Regnier also testified that A. B. S. was preoccupied with death and dying and was acutely depressed on the date of the incident. Therefore, Dr. Regnier concluded that A. B. S. had a serious mental illness. However, in response to questioning by the juvenile court, Dr. Regnier testified that as long as A. B. S. took his medication, he did not pose a substantial risk of harm to himself or others and was not committable.

Both the State’s and A. B. S.’s expert witnesses testified that A. B. S. did not require involuntary commitment. Accordingly, the juvenile court correctly ruled that reasonable grounds existed to believe that the child was not committable to an institution for the mentally ill.

Judgment affirmed.

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


text:
    A99A2201.
    HALL v. THE STATE.
    (527 SE2d 624)
   Miller, Judge.

Following a bench trial, Walter Hall was convicted of trafficking in cocaine and possession of cocaine with intent to distribute. He enumerates as error the denial of his motion to suppress the evidence.

When reviewing the decision of the trial court on a motion to suppress, we construe the evidence most favorably to uphold the trial court’s findings and judgment, and if there is any evidence to support those findings, they will not be disturbed.

Viewed in this light the evidence showed that narcotics officers received information from a confidential informant of drug activity by Cedric Ward. While the informant discussed a drug buy of half a kilo of cocaine with Ward, officers monitored the call. Ward told the informant that he had a little less than a kilo and that he was expecting another delivery within the hour. Based on this information, officers obtained a search warrant and searched Ward’s apartment, finding cocaine and other items. While conducting the search, the officers were informed by a detective who was stationed outside the apartment conducting surveillance that someone was approaching with a backpack. Hall knocked on the door, and once the door was opened, officers observed that Hall was carrying a backpack, which he dropped upon seeing them. Hall retreated and attempted to escape down a stairwell when officers detained him. The nearby detective searched the backpack and found cocaine.

Because Hall dropped the backpack containing the cocaine before his attempt to flee, the court was authorized to find that the cocaine was not seized as the result of a search but was instead abandoned before Hall’s arrest.

Moreover, officers had independent probable cause to search Hall and the backpack. OCGA § 17-5-28 provides that during the execution of a search warrant, officers may reasonably detain or search any person in the place at the time: (1) to protect themselves from attack; or (2) to prevent the disposal or concealment of any things particularly described in the search warrant. Although there are no facts to substantiate that officers believed Hall was armed or that he attempted to conceal contraband,

[i]t has been held that [OCGA § 17-5-28] does not limit the officer’s right to search persons as to whom probable cause for a warrantless search exists. Probable cause need not be defined in relation to any one particular element, but may exist because of the totality of the circumstances surrounding a transaction.

Decided January 11, 2000 —

Reconsideration denied February 9, 2000

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

J. Tom Morgan, District Attorney, Robert M. Coker, Gregory K. Schwarz, Assistant District Attorneys, for appellee.

In the present case, based on the totality of the circumstances, including Hall’s presence on the premises, his knocking on the door of Ward’s apartment, his carrying a bag, his dropping the bag and attempting to flee, and the information from Ward himself that a delivery of drugs was to be made at his residence within the hour, provided probable cause to believe that Hall was in possession of contraband. On this basis the officers were justified in searching Hall and the backpack. The court did not err in denying the motion to suppress.

Judgment affirmed.

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

        Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994); Lewis v. State, 233 Ga. App. 560 (1) (504 SE2d 732) (1998).

       See Redd v. State, 229 Ga. App. 364, 366 (494 SE2d 31) (1997); D’Angelo v. State, 223 Ga. App. 558, 559 (1) (479 SE2d 384) (1996).

       See, e.g., Ledford v. State, 233 Ga. App. 445, 446 (1) (504 SE2d 512) (1998); Travis v. State, 192 Ga. App. 695, 696 (385 SE2d 779) (1989).

       (Citations and punctuation omitted.) Moody v. State, 232 Ga. App. 499, 505 (4) (b) (502 . SE2d 323) (1998); see Steward v. State, 237 Ga. App. 672, 674-675 (516 SE2d 534) (1999).

       See id.