author: Miller, Judge. Eldridge, Judge,

text:
    A01A1290.
    BAILEY v. BAILEY et al.
    (555 SE2d 853)
   Miller, Judge.

In his suit against appellees for injuries suffered in a car accident, Gregory Bailey appeals from the trial court’s denial of his motion for service by publication, its failure to rule on his motion to extend discovery, and the granting of appellees’ motions to dismiss. We discern no error and affirm.

Following a December 4, 1996 car accident, Gregory sued Derrick and Ramon Bailey in DeKalb County Superior Court. Derrick and Ramon’s former attorney acknowledged service on their behalf in this original action on December 1, 1998. Gregory voluntarily dismissed this lawsuit on September 15, 1999, and renewed his case against Derrick and Ramon on March 8, 2000.

On March 10, 2000, Gregory attempted to serve Derrick with the renewed lawsuit at a DeKalb County address, but was unsuccessful. The sheriff’s entry of service on that date indicated that Derrick had moved from the listed address. The record reveals that because of budgetary constraints, Gregory made no further attempts to serve Derrick after March 10, 2000, or even to find him after March 31, 2000. The available address for Ramon was not in DeKalb County, so the DeKalb County Sheriff did not attempt to serve him. Gregory used a private process server who served “Maurice Smith” at the address listed for Ramon, believing that Maurice Smith was an alias of Ramon. In March and April 2000 answers to the complaint, insufficient service of process was asserted as an affirmative defense on behalf of both Derrick and Ramon.

The uninsured motorist carrier moved to dismiss both Derrick and Ramon on July 31, 2000, due to insufficient service of process and laches, and Ramon filed a similar motion on his own behalf on September 27, 2000. On August 30, 2000, Gregory filed a motion to allow service by publication on Derrick and Ramon and, on October 6, 2000, filed a motion to extend discovery alleging that both Derrick and Ramon were using aliases and attempting to avoid service and discovery. The trial court denied Gregory’s motion to allow service by publication on Derrick, stating that Gregory did not exercise the requisite diligence to find Derrick, and further granted Derrick’s motion to dismiss. The trial court dismissed Derrick with prejudice because the statute of limitation had expired. Since the court lacked jurisdiction over Derrick, it concluded that even if service on Maurice Smith constituted sufficient service on Ramon, it could not exercise jurisdiction over Ramon unless Ramon resided in DeKalb County on the date that the suit was filed. The court therefore dismissed Ramon without prejudice, but stated that it would reconsider this decision as a dismissal with prejudice if Ramon could present to the court a valid driver’s license and proof of his DeKalb County residence on the date that the lawsuit was filed.

Ramon presented the requested information to the court within a week of the court’s order, but was asked to resubmit the information with a formal motion for reconsideration and an affidavit. Before the motion for reconsideration was filed, Gregory filed the instant appeal.

1. Gregory argues that the trial court abused its discretion by granting Derrick’s and Ramon’s motions to dismiss and by denying his motion to allow service by publication. In order to toll the statute of limitation after the timely filing of a complaint, a plaintiff must show that he acted in a reasonable and diligent manner in attempting to effectuate proper service as quickly as possible or else he is guilty of laches. “The determination of whether the plaintiff was guilty of laches in failing to exercise due diligence in perfecting service after the running of the statute of limitations is a matter within the trial court’s discretion and will not be disturbed on appeal absent abuse.” When the statute of limitation has expired, and a defendant raises the issue of defective service in his answer, the plaintiff must act with “the greatest possible diligence” from that point forward in order to serve the defendant or risk dismissal of his case. With respect to a motion for service by publication in an uninsured motorist case, it is important to note that a plaintiff need not show that he attempted to serve a defendant, but show only that he exercised due diligence in his attempts to find a defendant or that the defendant was concealing himself to avoid service, before the court will allow service by publication on that defendant.

Since no attempts were made to serve Derrick after March 10, 2000, or to even find him after March 31, 2000, and since Gregory did not file his motion to allow service by publication until five months later and a month after the uninsured motorist carrier’s motion to dismiss both defendants, we find no abuse of discretion here. As the trial court did not abuse its discretion in concluding that Gregory did not act with the due diligence that would warrant service by publication, it follows that the court did not abuse its discretion in determining that Gregory did not act with the greatest possible diligence to serve Derrick. Without a proper showing of due diligence in his attempt to find Derrick, the denial of Gregory’s motion for service by publication was proper. Likewise, the dismissal with prejudice for Gregory’s failure to show the requisite diligence to serve Derrick following the expiration of the statute of limitation was also proper.

The trial court further did not err by dismissing Ramon from the case. The address used by Gregory in his attempt to serve Ramon was not in DeKalb County. Without personal jurisdiction over Derrick, the trial court could not exercise jurisdiction over Ramon unless Ramon resided in DeKalb County on the date that the lawsuit was filed.

2. Gregory further contends that the trial court abused its discretion by stating that it would reconsider its dismissal of Ramon without prejudice as a dismissal with prejudice. However, the trial judge did not actually reconsider its ruling because this appeal was filed before the filing of any motion for reconsideration. Absent an actual ruling by the trial judge, this issue raised by Gregory is not ripe for review.

Even if the issue were ripe for appellate review, “a trial judge has the inherent power during the same term of court in which the judgment was rendered to revise, correct, revoke, modify or vacate the judgment, even upon his own motion.” The trial court did not abuse its discretion by agreeing to consider additional evidence about Ramon’s residence prior to making a final ruling as to the nature of its dismissal of Ramon due to lack of jurisdiction.

3. Gregory also urges that the trial court erred by allowing Ramon to submit his driver’s license and DeKalb County residence information to the court, because the submission constituted an ex parte communication. Gregory raised no objection about this alleged ex parte communication below and therefore has presented nothing for this court to review. Even if the issue had been preserved, “there is no indication in the record that the trial court gave any consideration to the [items submitted by Ramon] .” Instead of considering the submissions by Ramon, the court instructed Ramon to resubmit the requested information through a formal motion for reconsideration. We find no harmful error here.

4. In light of the court’s dismissal of Derrick and Ramon, Gregory’s motions for service by publication on Ramon and to extend discovery were rendered moot.

Judgment affirmed.

Johnson, P. J., concurs. Eldridge, J., concurs and concurs specially.

Eldridge, Judge,

concurring and concurring specially.

I concur fully with the majority and write to emphasize the different due diligence required when there is a pro forma service by publication under the uninsured motorist provisions of OCGA § 33-7-11 (e) and personal jurisdiction is not expected to result to satisfy the necessity of a judgment to satisfy the condition precedent for the insurer to be liable and due diligence that must be exercised when service is perfected after the statute of limitation has run for personal jurisdiction. See Wilson v. State Farm &c. Ins. Co., 239 Ga. App. 168 (520 SE2d 917) (1999).

The confusion occurs where plaintiff’s counsel seeks to obtain both personal jurisdiction for liability purposes and service by publication to satisfy UM coverage if the uninsured motorist cannot be identified or served. Seeking to do both or to do either in the alternative leads to confusion with the trial court’s application of the different standards for both types of service; due diligence has different standards for each. Wilson v. State Farm &c. Ins. Co., supra. Where the suit was filed prior to the running of the statute of limitation and service was perfected after the statute has run for the relation back of service to the time of filing and to avoid laches, the plaintiff must exercise due diligence in seeking to perfect service, and if the service is challenged as a defense, plaintiff is “obligated to exercise, not due diligence, but the greatest possible diligence to ensure proper and timely service.” (Punctuation and footnote omitted.) Ingraham v. Marr, 246 Ga. App. 445, 447 (2) (540 SE2d 652) (2000); see also Patterson v. Johnson, 226 Ga. App. 396, 398 (486 SE2d 660) (1997). To make service by publication for purposes of UM coverage, which lacks personal jurisdiction, the due diligence involves only sufficient effort to produce evidence that establishes that the uninsured motorist left the state, is avoiding service and is hiding, or cannot be found to perfect personal service. See Wilson v. State Farm <fee. Ins. Co., supra. However, some effort must be made to locate the uninsured motorist before service by publication will be permitted, which was absent in this case. Swanson v. State Farm &c. Ins. Co., 242 Ga. App. 616 (530 SE2d 516) (2000); Brown v. State Farm &c. Ins. Co., 242 Ga. App. 313, 314 (529 SE2d 439) (2000). Thus, a failure to exercise any due diligence necessary to produce some evidence that the uninsured motorist has left the state, is hiding from service, or cannot be found will allow the UM carrier to escape liability on lack of service grounds. Id.

Decided October 26, 2001.

Carter & Tate, Mark A. Tate, Charles A. Mathis, Jr., Linda G. Bass, for appellant.

Mabry & McClelland, James T. Budd, Timothy S. McConnell, Claxton & Claxton, William P. Claxton, Leslie H. Claxton, Kelley C. Herrin, for appellees.

        Patterson v. Johnson, 226 Ga. App. 396, 397 (486 SE2d 660) (1997).

       (Citations and punctuation omitted.) Sykes v. Springer, 220 Ga. App. 388, 390 (1) (469 SE2d 472) (1996).

       See Ingraham v. Marr, 246 Ga. App. 445, 447 (2) (540 SE2d 652) (2000).

       See OCGA § 33-7-11 (e); Wilson v. State Farm &c. Ins. Co., 239 Ga. App. 168,170 (520 SE2d 917) (1999) (“[PJermitting service by publication does not require a showing that service has been attempted but only that the party to be served has departed from the state, or cannot, after due diligence, be found within the state, or conceals himself to avoid service of summons. . . .”) (citation and punctuation omitted).

       See Brown v. State Farm &c. Ins. Co., 242 Ga. App. 313, 314 (1) (529 SE2d 439) (2000) (trial court properly found lack of diligence where cursory investigation failed to locate defendant, defendant had not been served three months after expiration of statute of limitation, and plaintiff did not file motion for service by publication until one month after defendant filed motion to dismiss).

       Id.

        Pryor v. Douglas Shopper-The Coffee County News, 236 Ga. App. 854, 858 (2) (514 SE2d 59) (1999).

        Amason, Inc. v. Metromont Materials Corp., 185 Ga. App. 509, 510 (2) (364 SE2d 637) (1988).

        McLain Bldg. Materials v. Hicks, 205 Ga. App. 767, 768 (1) (423 SE2d 681) (1992) (“[F]or purposes of venue and other jurisdictional questions, a person’s residence at the time of filing of suit is the determining factor.”) (citations and punctuation omitted).

       See Gilbert v. Montlick & Assoc., P.C., 248 Ga. App. 535, 537 (4) (546 SE2d 895) (2001).

       (Citations omitted.) Bagley v. Robertson, 265 Ga. 144, 146 (454 SE2d 478) (1995).

        In re Martin, 218 Ga. App. 79, 80 (1) (460 SE2d 304) (1995).

       Id.


source: Caselaw Access Project

author: Ruefin, Judge.

license: Public Domain

text:
    A01A1371.
    CITY OF ATLANTA et al. v. HEARD.
    (555 SE2d 849)
   Ruefin, Judge.

James Milton Heard d/b/a Milton Auto, Inc. sued the City of Atlanta and Atlanta Police Detectives R. L. Tellis and R. D. Norris (collectively the “City Defendants”) and Robinson & Stephens, Inc. for defamation, conversion, false arrest, and malicious prosecution. The City Defendants moved for summary judgment, asserting sovereign and discretionary immunity. The trial court denied the motion, and we granted the City Defendants’ application for interlocutory appeal. For reasons that follow, we reverse.

In determining whether the trial court erred in denying the motion for summary judgment, we conduct a de novo review of the evidence. For the City Defendants to prevail, they “must demonstrate that there are no genuine issues of any material fact and that the undisputed facts, viewed in the light most favorable to [Heard], support judgment as a matter of law.” If the City Defendants discharge this burden, Heard “must point to specific evidence giving rise to a triable issue of fact.”

Viewed in a light most favorable to Heard, the evidence shows that on April 7, 1997, Detectives Tellis and Norris entered Milton Auto to conduct an inspection under Georgia’s Used Motor Vehicle Dealers’ and Used Motor Vehicle Parts Dealers’ Registration Act. During their inspection, the detectives found a 1994 Chevrolet Suburban with a vehicle identification number belonging to a reportedly stolen vehicle. The two detectives also discovered the front end of a 1995 Chevrolet Impala Super Sport that appeared to be stolen. Heard was charged with theft by receiving stolen property and obstructing and altering a vehicle identification number, and Detective Tellis had the vehicles towed away by Robinson & Stephens.

A grand jury indicted Heard, but he was later acquitted of the charges. Following the acquittal, Detective Tellis, at the City’s direction, had the Impala returned to Heard. The Suburban was not returned to Heard, however, as the towing company, Robinson & Stephens, had sold it several months earlier to pay for outstanding storage fees. According to Tellis, he instructed the towing company to retain the Suburban and “did not authorize, consent [to] or participate in the sale of the [vehicle].”

Heard subsequently filed the instant complaint alleging that the City Defendants are liable for defamation because Tellis and Norris told third parties he was a “ ‘criminal’ ” operating a “ ‘chop shop.’ ” Heard also alleged that the City Defendants are liable for false arrest and malicious prosecution due to the detectives’ improper investigation of the matter, including théir failure to scrutinize certain evidence. Finally, Heard alleged that all the defendants, including Robinson & Stephens, are liable for converting the Suburban.

As stated above, the trial court denied the City Defendants’ motion for summary judgment, which was grounded on sovereign and discretionary immunity. In its order, the court found that there was evidence supporting Heard’s allegation that the detectives refused to investigate Heard’s claim that he owned the vehicles. The order concludes:

The Court finds that the conduct of the City of Atlanta and Detective Tellis and Detective Norris does not come within the doctrine of sovereign immunity. The Court further finds there is a question of material fact that the conduct of the City of Atlanta and its agents are immune from liability under the doctrine of sovereign immunity.

On appeal, the City Defendants assert that the trial court erred in denying summary judgment because they are immune from suit as a matter of law. We agree.

1. Sovereign Immunity. Although our state constitution permits the General Assembly to waive the sovereign immunity of municipalities, it is clear that such waiver must be by express legislative act. In speaking to this authority, the legislature has declared, with limited exception, that “it is the public policy of the State of Georgia that there is no waiver of the sovereign immunity of municipal corporations of the state and such municipal corporations shall be immune from liability for damages.” In addition, the General Assembly has specifically stated that municipalities “shall not be liable for the torts of policemen or other officers engaged in the discharge of the duties imposed on them by law.”

In light of such authority, we disagree with the trial court’s conclusion that the City is not protected by sovereign immunity. We are aware of no express waiver which would apply to Heard’s claims, and he has cited none in his brief. Accordingly, the trial court erred in denying the City’s motion for summary judgment.

Furthermore, we are compelled to note that, in his appellate brief, Heard has not cited any evidence of record to substantiate his claims. Instead, he relies entirely on the arguments of counsel made below to prove his factual allegations. The citations in Heard’s appellate brief, all preceded by “T,” apparently refer to the summary judgment motion hearing transcript, the only volume of transcripts in the record. As no evidence was presented at the hearing, the citations must be to counsels’ arguments found in the transcript. In many instances, there is no apparent correlation between the argument of counsel cited in the transcript and the factual proposition Heard asserts in his appellate brief. But more importantly, it is a basic principle of evidence law that such argument is not evidence. On appeal, our review of the evidence is de novo, and if Heard disagreed with the appellants’ version of the facts, he was required to point to specific evidence giving rise to a triable issue of fact. This, Heard clearly has not done.

2. Discretionary Immunity. We similarly conclude that the trial court erred in failing to grant summary judgment to Detectives Tellis and Norris.

It is a well-established principle that a public official who fails to perform purely ministerial duties required by law is subject to an action for damages by one who is injured by his omission. However, it is equally well established that where an officer is invested with discretion and is empowered to exercise his judgment in matters brought before him, he is sometimes called a quasi-judicial officer, and when so acting he is usually given immunity from liability to persons who may be injured as a result of an erroneous decision; provided the acts complained of are done within the scope of the officer’s authority, and without wilfulness, malice, or corruption.

“A discretionary act calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.”

In this case, Heard maintains that the flawed investigation and the decision to arrest him by Tellis and Norris were ministerial acts for which no immunity applies. Considering similar allegations, however, we have held that the conduct of the arresting officers was discretionary, and we can discern no reason why the detectives’ decisions here should be treated differently. Regardless of whether the detectives’ decisions to not scrutinize certain evidence and to arrest Heard were flawed, those decisions remain discretionary. Furthermore, as stated above, Heard cites solely to the argument of counsel below as evidence supporting his assertions that the investigation was flawed. Under these circumstances, and finding no evidence of wilfulness, malice, or corruption, we conclude that the trial court erred in failing to grant the detectives’ motion for summary judgment.

Decided October 26, 2001.

Susan P. Langford, Tuwanda R. Williams, Franklin W. Thomas, Jr., for appellants.

Lane, O’Brien & Caswell, Stephen J. Caswell, Daniel B. Kane, for appellee.

Judgment reversed.

Johnson, P. J., and Ellington, J., concur.

       Robinson & Stephens did not move for summary judgment.

       See Todd v. Kelly, 244 Ga. App. 404, 405 (535 SE2d 540) (2000).

       Id.

        Kitchens v. Keadle Lumber Enterprises, 249 Ga. App. 831 (549 SE2d 781) (2001).

       See OCGA §§ 43-47-1; 43-47-17.

       It is unclear whether the trial court ruled that the City Defendants were not entitled to sovereign immunity as a matter of law or whether a question of fact remained concerning its applicability.

       See Ga. Const, of 1983, Art. IX, Sec. II, Par. IX.

       See Nat. Distrib. Co. v. Dept. of Transp., 248 Ga. 451, 453 (283 SE2d 470) (1981); see also State v. Collins, 171 Ga. App. 225, 227 (319 SE2d 84) (1984) (physical precedent only).

       OCGA § 36-33-1 (a).

       OCGA § 36-33-3.

       Although a municipality can be held liable for negligently performing a ministerial duty, in this case there is no allegation or evidence of such negligence. See OCGA § 36-33-1 (b).

       See Collins, supra (ruling that there is no express waiver of sovereign immunity for a claim against the state for return of property under OCGA § 17-5-50).

       See id.; McDay v. City of Atlanta, 204 Ga. App. 621, 622 (3) (420 SE2d 75) (1992).

       See Todd, supra at 406-407.

       See Dunn v. Reliable Tractor, 248 Ga. App. 258, 260 (2) (545 SE2d 695) (2001).

       See Kitchens, supra; Todd, supra; see also Court of Appeals Rule 27 (c) (3) (ii).

       (Punctuation omitted; emphasis in original.) Hennessy v. Webb, 245 Ga. 329, 330-331 (264 SE2d 878) (1980).

       (Punctuation omitted.) Todd, supra at 406 (1).

       See id.; Woodward v. Gray, 241 Ga. App. 847, 851 (c) (527 SE2d 595) (2000); Corporate Property Investors v. Milon, 249 Ga. App. 699, 706 (3) (549 SE2d 157) (2001) (physical precedent only).


author: Eldridge, Judge.

text:
    A01A2122.
    THE STATE v. McDUFF.
    (555 SE2d 213)
   Eldridge, Judge.

Richard Scott McDuff was driving his pickup truck on Cobb Parkway with two minor children riding unrestrained in the open bed. Cobb County Pólice Officer Greg Bradford pulled McDuff over for a violation of OCGA § 40-8-76.1 (e) (3), failure to secure a minor with a safety belt in a passenger vehicle. Further investigation resulted in McDufPs arrest for DUI. Citations were issued for the seat belt violation and the DUI. The State Court of Cobb County granted McDufFs motion to suppress evidence, finding that while Officer Bradford was “extremely credible” and “acted in good faith,” it is not a violation of the law for minor children to ride unrestrained in the open bed of a pickup truck on Cobb Parkway and, thus, there was no legal basis for the stop. The State appeals. Upon review, we reverse the judgment of the court below.

In granting McDuff’s motion to suppress, the trial court relied upon language in In the Interest of B. C. G., 235 Ga. App. 1 (508 SE2d 239) (1998), wherein the Court held that, “Since Georgia law allows minors to ride in such a manner [in the open bed of a pickup truck], so long as it is not on an interstate highway, there was no basis for Officer Borgen to believe that B. C. G. was in violation of any traffic law prior to the stop.” From this, the trial court reasoned that since Cobb Parkway is not an “interstate highway,” it is not a violation of any traffic law for a minor to ride without a seat belt in the open bed of a pickup truck and, thus, such conduct did not provide a sufficient basis for a traffic stop. In addition, the trial court determined that OCGA § 40-8-79, precluding a minor from riding in an open pickup truck on an interstate, would be rendered “superfluous” if OCGA § 40-8-76.1 precluded a minor from riding unrestrained in the back of a pickup truck.

We cannot agree with the trial court’s application of B. C. G. to the facts of the instant case. While the cited language appears broad, it should not be taken out of context. This Court reached its conclusion in B. C. G. through an examination of OCGA § 40-8-79 and through the officer’s testimony that he based his stop on a violation of such statute. Seat belt safety laws were not at issue in B. C. G, and a traffic violation under OCGA § 40-8-76.1 was neither raised nor considered therein. In the case before us now, at issue is the statutory construction of OCGA § 40-8-76.1.

1. The seat belt safety law, OCGA § 40-8-76.1, was enacted by Ga. L. 1988, p. 31, § 1, and requires that “Each occupant of the front seat of a passenger vehicle shall, while such passenger vehicle is being operated on a public road, street, or highway of this state, be restrained by a seat safety belt approved under Federal Motor Vehicle Safety Standard 208.” In subsection (a) of the statute, “passenger vehicle” was originally defined as “every motor vehicle designed to carry ten passengers or less and used for the transportation of persons but shall not mean motorcycles, motor driven cycles, vehicles mounted on a truck chassis, or vehicles equipped for off-road use.”

During the 1990 legislative session, the statute was amended specifically to exclude a pickup truck as a “passenger vehicle” under the seat belt safety law: it “shall not mean pickup trucks.” And Code section 40-8-79 was enacted in order to make it unlawful for a minor “to ride as a passenger in the uncovered bed of a pickup truck on any interstate highway of this state.”

Then, in 1993, the General Assembly added a method by which the seat belt safety law could be violated:

Each minor over four years of age who is an occupant of a passenger vehicle shall, while such passenger vehicle is being operated on a public road, street, or highway of this state, be restrained by a seat safety belt approved under Federal Motor Vehicle Safety Standard 208. In any case where a minor passenger over four years of age fails to comply with the requirements of this paragraph, the driver of the passenger vehicle shall be guilty of the offense of failure to secure a seat safety belt on a minor and, upon conviction thereof, may be fined not more than $25.00. The court imposing such a fine shall forward a record of the court disposition of the case of failure to secure a seat safety belt on a minor to the Department of Motor Vehicle Safety.

Thus, after the 1993 session, the driver of a passenger vehicle could be stopped and ticketed for the failure to require each minor passenger, regardless of where such minor is sitting in the vehicle, to wear a seat belt.

Finally, no doubt in response to the potential for injury as a result of increasingly heavy traffic moving at increasingly higher speeds on the surface roads of this state (as recognized by the trial judge in the instant case: “children in the back of a pickup truck is one of the most dangerous things that can happen”), OCGA § 40-8-76.1 was amended in order to, as the legislative headnote states, “provide that minors in pickup trucks shall be required to use seatbelts.” In doing so, subsection (a) defining “passenger vehicle” was again changed, this time specifically to include pickup trucks that contain minors: “the term ‘passenger vehicle’ includes any sport utility vehicle and also includes pickup trucks for any occupant who is under 18 years of age.” Thus, the driver of a passenger vehicle, which includes a pickup truck in which a minor is riding, can be stopped and ticketed for the failure to require a minor occupant to wear a seat belt.

We reject the argument that the “occupant” of a pickup truck means only those persons riding in the cab of the truck, which position is certainly safer than the open bed where an unrestrained child can be thrown out of the vehicle during the course of even a minor accident. In this regard, it is instructional that the legislature intended for the seat belt law as it relates to pickup trucks to apply only to those under 18, keeping it lawful for adult workers to still be transported in the open bed of a truck without restraining devices. However, the legislature made it clear that its intent was “that minors in pickup trucks shall be required to use seatbelts.” The “cab” of a pickup truck was not specified, although it could have been. And indeed, it makes little sense for the seat belt law to apply only to children who ride in the cab, making it possible for a driver to avoid the law altogether by causing a child to ride in the more dangerous open bed of a pickup truck. To “occupy” a vehicle is to fill a space or place therein. A child riding in the open bed of a pickup truck is no less an “occupant” of the vehicle than the child who is riding in the cab.

Also, OCGA § 40-8-76. l’s seat belt requirement does not render as superfluous OCGA § 40-8-79’s proscription against minors riding in an open pickup truck on an interstate. The first requires that minors be restrained in order to ride in an open bed of a pickup truck being operated on public roads, streets, and highways of this state. The second does not permit minors to ride in the open bed of a pickup truck on an interstate highway, even if they are restrained. This distinction has a sound basis in common sense because the realities of interstate highway travel, wherein speed limits are much higher than state roads and all too frequently ignored for even greater speeds, significantly increase the potential for injury in the open bed of a pickup truck regardless of whether a seat belt is worn.

Accordingly, we find that the trial court’s conclusion that Georgia law permits a minor to ride unrestrained in the open bed of a pickup truck as long as the truck is not being operated on an interstate highway is error as a matter of law.

2. Here, the officer testified that he had a clear and unobstructed view of the children in the back of McDuff’s pickup truck and that he did not see any restraining device being employed. Obviously, the officer could not see down into the bed of the truck in order to ascertain whether lap belts were being used, since the design of a pickup truck precludes such observation from the road. OCGA § 40-8-76.1 would be unenforceable if an officer was required to see down into the bed of a pickup truck before effectuating a stop to ensure that otherwise visibly unrestrained children in the back of a pickup are in fact in compliance with the law. Instead, the officer testified and the trial court apparently concurred that it is common knowledge the bed of a pickup truck is not generally equipped with lap belts. We find that the inability to see the employment of any restraining device, coupled with the common knowledge that seat belts are not standard equipment in the back of pickup trucks, provided a sufficient basis for a traffic stop to ensure compliance with OCGA § 40-8-76.1 (e) (3). In this case, the trial court specifically found that the officer was credible and had a good faith basis for the stop. The court found only that the officer’s basis for the stop was not a violation of the law. As discussed in Division 1, supra, this finding was error as a matter of law.

Decided October 11, 2001

Reconsideration denied October 29, 2001

Barry E. Morgan, Solicitor-General, Keith S. Hasson, Anthony Volkodav, Jr., Assistant Solicitors-General, for appellant.

Brian D. Hardison, for appellee.

Judgment reversed.

Andrews, P. J., and Miller, J., concur.

        In the Interest of B. C. G, supra at 5 (2).

       OCGA § 40-8-76.1 (b).

       See Ga. L. 1988, p. 32.

       Ga. L. 1990, p. 589, §§ 1, 2.

       Ga. L. 1993, p. 517.

       Ga. L. 1994, p. 1005.

       Id.

       Id.

       See American Heritage Dictionary (3rd ed.), p. 944.

        Davis v. State, 232 Ga. App. 320 (501 SE2d 836) (1998).


author: Johnson, Presiding Judge.

text:
    A00A1294.
    JOHNS et al. v. RIDLEY et al.
    (556 SE2d 165)
    Decided October 29, 2001.

      Mills & Moss, David C. Moss, for appellants.

      Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, Senior Assistant Attorney General, Kimberly L. Schwartz, Assistant Attorney General, for appellees.
   Johnson, Presiding Judge.

The decision of the Court of Appeals in Case No. A00A1294 having been reversed by the Supreme Court, Ridley v. Johns, 274 Ga. 241 (552 SE2d 853) (2001), our decision in Johns v. Ridley, 245 Ga. App. 710 (537 SE2d 746) (2000), is hereby vacated, and the judgment of the Supreme Court is made the judgment of this court.

Judgment reversed.

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


text:
    A02A0098.
    HALL v. THE STATE.
    (556 SE2d 166)
   Eldridge, Judge.

William Demetrious Hall challenges his convictions for two counts of aggravated assault (OCGA § 16-5-21 (a) (2)), one count of armed robbery (OCGA § 16-8-41), two counts of forgery in the first degree (OCGA § 16-9-1), and one count of possession of a firearm during commission of a crime (OCGA § 16-11-106). We affirm.

On appeal from a criminal conviction, “ ‘the evidence must be viewed in a light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility. (Cits.)’ ” Sanders v. State, 236 Ga. App. 578 (512 SE2d 678) (1999). To sustain the conviction, the evidence must be sufficient to authorize the jury to find the defendant guilty of the crime charged beyond a reasonable doubt, James v. State, 227 Ga. App. 907, 908 (1) (490 SE2d 556) (1997), and “[t]he standard of review for the denial of a motion for directed verdict of acquittal is the same as that utilized under Jackson v. Virginia, [443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979)].” Thomas v. State, 249 Ga. App. 571 (549 SE2d 408) (2001).

Viewed in the light most favorable to the verdict, Singleton v. State, 231 Ga. App. 694 (1) (500 SE2d 411) (1998), the evidence shows that Shanta Patel and ten-year-old Neila Mansure were preparing to depart a Cairo grocery store in the early evening of October 20, 2000, when they were approached by an individual wearing a Halloween mask and brandishing a handgun. The child, the store owner’s daughter, testified that the perpetrator began hitting her aunt, Ms. Patel, several times in the stomach while holding the gun on her. Frightened, the child locked herself in her mother’s nearby car. The perpetrator then moved to the passenger’s side of the car where, at gunpoint, he ordered her out of the vehicle while at the same time attempting to get into the car using his hands. Mansure opened the car door and escaped. The perpetrator then entered the vehicle, grabbed several bags from the backseat, and ran. The store owner, Jenny Patel, testified that the perpetrator got away with $4,362 in cash, five money orders in blank, and an unspecified number of lottery reports. Other evidence introduced by the State established that a latent palm print lifted from the vehicle following the robbery by police matched a known palm print belonging to the defendant; that within several hours of the robbery the defendant had been with a woman who presented one of the stolen money orders for payment; and that the following day, the defendant successfully presented two of the stolen money orders for payment, each payable to himself in the amount of $100 and executed by a “Jack, Jr.” and a “David Wright,” respectively, and twice attempted to do likewise as to a third stolen money order.

In testimony given on his own behalf, the defendant denied the charges against him. However, in doing so, the defendant admitted touching the vehicle in issue, explaining that the day before the robbery he had been standing next to the vehicle as he “scratched” lottery tickets he earlier had purchased in the store. The defendant otherwise admitted having the money orders in issue, testifying that he had taken the money orders in payment for crack cocaine he sold to a third party; that his girlfriend cashed one of the money orders; that he cashed one of the money orders himself; and that he attempted to cash another.

1. In two enumerations of error the defendant challenges the sufficiency of the evidence and contends that his motion for directed verdict as to Count 2 (aggravated assault upon Shanta Patel) should have been granted. We disagree. The evidence was sufficient to authorize the jury to find the defendant guilty of the offenses charged beyond a reasonable doubt. Jackson v. Virginia, supra; see Favors v. State, 238 Ga. App. 234, 235 (1) (518 SE2d 444) (1999) (“If a deadly weapon is used to place another in fear of receiving a violent injury, the offense is elevated to aggravated assault. [Cit.]”); Pope v. State, 179 Ga. App. 739, 741 (1) (347 SE2d 703) (1986) (forgery in first degree as committed by one making a writing purporting to be the writing of another); Parker v. State, 249 Ga. App. 509, 510-511 (1) (548 SE2d 475) (2001) (evidentiary sufficiency as to armed robbery by possession of firearm during commission of crime).

2. In a final claim of error, the defendant contends that the superior court erred in recharging the jury as to the form of the verdict in the event it found the defendant guilty on all counts, arguing that doing so gave undue emphasis to the evidence of defendant’s guilt. After instructing the jury that the purpose of its recharge as to the form of the verdict was to correct for an omission in its original charge thereon rather than to emphasize such portions of the original charge as would be reread in doing so, the superior court recharged the jury:

If you find the defendant not guilty on all counts the form of your verdict would be: We the jury, find the defendant not guilty. Now, should you find the defendant guilty on one or more counts and not guilty on one or more counts, you should specify in your verdict whether you find the defendant guilty on each of the six counts. In other words, you have got to deal with each of the six counts separately, if you don’t — if you find some guilty and some not guilty. If you find the defendant guilty on al[l] counts, the form of your verdict would be: We, the jury find the defendant guilty.

The superior court properly recharged the jury as to a matter it had omitted from its original charge. While there is some evidence of confusion arising out of obvious misstatement, read in its totality and in light of the original charge, Taylor v. State, 195 Ga. App. 314-315 (1) (393 SE2d 690) (1990), there is no evidence that the recharge left the jury with any indication as to what the superior court believed the evidence to be. Turner v. State, 259 Ga. 873 (2) (388 SE2d 857) (1990). Accordingly, this claim of error likewise fails for lack of merit.

Decided October 29, 2001.

Billy M. Grantham, for appellant.

J. Brown Moseley, District Attorney, Ronald R. Parker, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       The record shows that Ms. Patel spoke no English and did not testify.


text:
    A02A0126.
    CHAMBERS v. THE STATE.
    (556 SE2d 444)
   Eldridge, Judge.

A Clayton County jury found Kenneth Lee Chambers guilty of misdemeanor obstruction of a police officer, which charge arose when Clayton County Police Officer C. R. Tippens answered a domestic disturbance call to Chambers’ home. He appeals, and upon review, we affirm.

1. Chambers challenges the sufficiency of the evidence supporting his conviction for obstruction of an officer. In that regard, we must measure all Chambers’ evidentiary challenges against the Jackson v. Virginia standard. In so doing, we view the evidence in the light most favorable to the verdict; Chambers no longer enjoys the presumption of innocence; and we will determine the sufficiency of the evidence, but not its weight. Also, we do not judge the credibility of the witnesses.

Viewed in this light, Officer Tippens was called to Chambers’ residence pursuant to his live-in girlfriend’s 911 call that Chambers was intoxicated and physically abusive, throwing kitchen pots and pans at her. Upon Tippens’ arrival, the victim asked him to talk to Chambers. At such urging, Tippens entered the residence and found Chambers sitting in a chair, apparently drunk, holding a growling dog by the collar. Chambers refused to cooperate with the investigation; he refused to put the animal in another room; and he became verbally abusive toward the officer, telling him “to get the fuck out.” When his girlfriend approached the chair in order to remove the dog, Chambers hit her on the side of the head in the officer’s presence. Officer Tippens then informed Chambers that he was under arrest for simple battery. When so informed, Chambers told the officer that “he was not going to jail” and picked up a disposable lighter as a weapon. The incident escalated when the officer approached Chambers, who was still holding the growling dog by one hand and the lighter in the other. Chambers rose and attempted to knee Officer Tippens in the groin; Tippens responded by striking Chambers in the face:

he [Chambers] went back, he released the dog. The victim scurried the dog out of the room into a bedroom off the hallway. He went back. And when he did, he still had the lighter in his hand. And he came up and swung up at my chin because I was still hovering over him; I leaned back; he missed; and I struck him again. At that point both of us — he went over out of the chair. I fell on top of him because my momentum was carrying me forward also. The chair fell on top of both of us, and he ended up face down in the hallway with his arms tucked up under him, and he refused to let me take him into custody. And it was, from then, a wrestling match.

We find this evidence sufficient for a rational trier of fact to have found Chambers guilty of obstruction of an officer in the lawful performance of his duties. Notwithstanding Chambers’ claims to the contrary, our decision in Coley v. State is distinguishable. “In Coley, the defendant committed no crime in the officer’s presence. Nor did he argue with the officer.” We also reject Chambers’ assertion that Officer Tippens was not “invited” into the residence by the victim and, thus, all that transpired after such entry was unlawful. Chambers argued such issue exhaustively to the jury, which found to the contrary. This credibility determination on the facts was the jury’s to make. As it is supported by the evidence, we will not go behind it.

2. Chambers contends the trial court erred in refusing to strike for cause venireman Singleton who worked for the DeKalb County Sheriff’s Office. We find this contention without merit. No transcript was made of the voir dire conducted in this case. Thus, venireman Singleton’s answers are not a part of the record before us. From the trial court’s recollection, Singleton’s disputed answer reflected an unawareness that the State has the burden of proof in a criminal trial. Thereafter,

[t]he Court, after Mr. Singleton responded to Mr. Morris [defense attorney] that he thought that the defendant had to prove his innocence, asked Mr. Singleton if I charged him that the law was the opposite of that and that, in fact, the burden of proof was on the State, that the defendant never had to prove innocence, could he follow those instructions; and he did reply that he could. Upon further voir dire, as a matter of fact, by Mr. Morris on behalf of Mr. Chambers, he repeated that three or four more times.

From the record, it appears that venireman Singleton expressed neither a partiality for the State nor a prejudice against Chambers, but simply an ignorance of the law. “Whether to strike a juror for favor lies within the sound discretion of the trial court.” Under the circumstances presented here, we find no abuse of the trial court’s discretion.

Under this same enumeration of error, Chambers contends that venireman Singleton is a Peace Officer Standards & Training-certified law enforcement officer with arrest powers who, therefore, was subject to be struck for cause under OCGA § 15-12-1. We find this claim — coming for the first time upon motion for new trial — to be meritless. At trial, Chambers specifically stated that although Singleton worked for the DeKalb County Sheriffs Office, his profession would not provide a reason to strike for cause. Such concession, then, is at odds with Chambers’ current claim, and there is absolutely nothing substantive in the record to show that Singleton’s employment with the DeKalb County Sheriffs Office is as a certified law enforcement officer with arrest powers. “The burden is on the party alleging error to show it affirmatively by the record, and when he does not do so, the judgment is assumed to be correct and must be affirmed.”

3. OCGA § 15-12-166 applies procedurally to the selection of juries in felony cases, and thus Chambers’ claim of error thereunder presents no basis for reversal in this misdemeanor case. Moreover, Chambers fails to state how the jury selection procedure used by the trial court harmed him in any fashion. “It is well established that the system by which juries are selected does not include the right of any party to select certain jurors but to permit parties to protect themselves against prejudice by allowing them to exclude unacceptable jurors. Defendant has no vested right to a particular juror.” Here, Chambers does not contend that any juror was unacceptable or that he was forced to use a peremptory strike improperly. His claim of error is directed only at the procedure used, with no evidence — or assertion — of harm resulting therefrom. Accordingly, we find no harm in the trial court’s denial of his motion for new trial on such basis, and “|h]arm, as well as error, must be shown to authorize a reversal by this Court.”

4. Next, Chambers contends he was denied a “thorough and sifting cross-examination” when the trial court refused to allow him to ask Officer Tippens if his police report reflected that Chambers’ girlfriend was “laying the bed” at the time Chambers began to throw pots and pans at her; he asserts that such contents of the police report would have impeached Officer Tippens’ testimony that Chambers’ girlfriend was not “laying the bed” when Chambers started throwing kitchenware at her. This claim of error is meritless.

Officer Tippens had no personal knowledge of where Chambers’ girlfriend was when the trouble began; he had not arrived on the scene. Further, he did not admit or deny that Chambers’ girlfriend had said she was “laying the bed” when the pans started flying; instead, he asserted that “she didn’t say that to me, no.” Another officer was called to the scene and participated in Chambers’ arrest; such information in the police report could have come from him.

In addition, Chambers was found “not guilty” on the simple battery (family violence) count arising from the 911 call. Thus, the single piece of “impeaching” information about which Chambers now complains is moot as to the instant conviction for obstruction of an officer.

Finally, we have reviewed the aggressive, 70-page cross-examination of Officer Tippens which included many “questions” such as, “So instead of trying to use your pure strength or continuing the wrestling match, you just basically punched him in the mouth,” and, “Once you crossed that line, being there without a warrant and an invitation, you got upset, you struck the man in the teeth. You had to come up with something to give you an exception to having a warrant, correct,” and, “what happened next was you lost your cool and knocked his teeth out?” We find it highly probable that the trial court’s denial of a single cross-examination question on a moot point did not contribute to the verdict on the obstruction charge.

Decided October 29, 2001.

Ricky W. Morris, Jr., for appellant.

Keith C. Martin, Solicitor-General, Kristin R. Campbell, Assistant Solicitor-General, for appellee.

5. We also find no error in the admission of statements made by Chambers’ girlfriend to the police officer. Such statements were made by the victim upon the officer’s arrival at the crime scene and were thus res gestae. Further, Chambers’ girlfriend ultimately testified at trial and was subject to cross-examination; accordingly, there is no hearsay issue.

Judgment affirmed.

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

       Chambers was found not guilty of the underlying basis for the domestic disturbance call: simple battery (family violence) under Count 1 of the accusation and simple battery under Count 2.

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

        Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990).

        Jackson v. Virginia, supra.

       178 Ga. App. 668 (344 SE2d 490) (1986).

       (Citation omitted.) Johnson v. State, 234 Ga. App. 218, 220 (3) (507 SE2d 13) (1998).

        Durham v. State, 185 Ga. App. 163, 165 (2) (363 SE2d 607) (1987).

       See Hutcheson v. State, 246 Ga. 13-14 (1) (268 SE2d 643) (1980).

       (Citation, punctuation and footnote omitted.) McClarity v. State, 234 Ga. App. 348, 351 (3) (506 SE2d 392) (1998).

       “If a juror is found competent and is not challenged peremptorily by the state, he shall be put upon the accused. Unless he is challenged peremptorily by the accused, the juror shall be sworn to try the case.” OCGA § 15-12-166.

       (Citation and punctuation omitted.) Thompkins v. State, 181 Ga. App. 158, 159 (2) (351 SE2d 475) (1986).

       See, e.g., Lane v. State, 239 Ga. App. 230, 231 (520 SE2d 705) (1999) (no evidence to support bare claim that arbitrary, exclusive methods used to compile jury list).

       (Citation omitted.) Nobles v. State, 201 Ga. App. 483, 488 (9) (411 SE2d 294) (1991).

       Chambers’ girlfriend, the victim, took the stand on Chambers’ behalf and testified that Chambers did not throw kitchenware at her as she had reported to the police and that no incident of family violence had occurred prior to the officer’s arrival.

        Berry v. State, 235 Ga. App. 35, 38 (508 SE2d 435) (1998).

       OCGA § 24-3-3; McKinney v. State, 218 Ga. App. 633, 634 (1) (463 SE2d 136) (1995).

        Price v. State, 220 Ga. App. 176, 177 (2) (a) (469 SE2d 333) (1996); Chambers v. State, 183 Ga. App. 874, 875 (2) (360 SE2d 438) (1987); Green, Ga. Law of Evidence, § 221, p. 497; § 224, p. 502.


author: Barnes, Judge.

text:
    A01A0856.
    WATERS v. THE STATE.
    (555 SE2d 859)
   Barnes, Judge.

Michael Waters appeals from his convictions of theft by taking property with a value in excess of $500, simple battery, criminal trespass, and criminal use of an article with an altered identification mark, asserting, essentially, insufficiency of the evidence. For the reasons that follow, we affirm in part, reverse in part, vacate the theft by taking conviction, and remand with direction.

Viewed in the light most favorable to the conviction, the record shows that, in connection with a dispute over a bill Waters presented to Barbara Fratt for his time and reimbursement for purchases, he removed from Fratt’s barn one of her saddles and some other items of her property. Fratt testified that she could probably sell the saddle for $1,500 to $1,800, that she had bought it new in 1972 for “about” $2,500, and that it had “escalated” in value. Returning to Fratt’s farm later that day, Waters pushed her stepdaughter with his hands on the front of her shoulders in order to move past her. Additionally, he entered Fratt’s barn after her stepdaughter told him that he was trespassing, that he was “not welcome here,” and that “I’m not going to allow you to trespass or go up to the barn at this point.” Finally, Waters removed from the saddle a name plate bearing Fratt’s maiden name.

1. (a) The elements of theft by taking relevant to this case are (1) an unlawful taking of property of another (2) with the intention of withholding the property without justification permanently or temporarily. OCGA §§ 16-8-2; 16-8-1 (1) (A). Waters asserts that he “acted under the impression that he had a right to retain [sic] the saddle since Fratt refused to pay him $1,054 which she owed him. . . .” Thus, he argues, “there simply is no evidence in the record of criminal intent.” He cites no authority for the proposition that this impression would excuse what would otherwise be a theft by taking, and, in fact, it has long been the rule that “[o]ne can not collect a debt due him by taking the property of another in payment thereof without the owner’s consent.” (Citation omitted.) McKenzie v. State, 8 Ga. App. 124,125 (3) (68 SE 622) (1910) (affirming a conviction of larceny after trust). We see no distinction between taking property in payment of a debt and, as appears to be the case here, taking property to hold hostage for the payment of a debt. Moreover, we recently wrote, in affirming a conviction for theft by taking:

Since it is undisputed that [the defendant] did, in fact, take property belonging to another without lawful authority, the only real issue was intent to deprive the owner of the property, a question solely for the jury. In this context, to deprive means to withhold without justification the property belonging to another, either permanently or temporarily. Once criminal intent at the time of taking is proven, it becomes irrelevant whether the deprivation is permanent or temporary.

(Citations omitted.) Chastain v. State, 244 Ga. App. 84, 85 (1) (535 SE2d 25) (2000). Accordingly, we find the evidence sufficient to show Waters’ criminal intent.

(b) Waters also raises the question whether the State proved that the value of the saddle exceeded $500. Under OCGA § 16-8-12 (a) (1), a person convicted of theft by taking “shall be punished as for a misdemeanor,” except that if the stolen property had a value in excess of $500, the court may impose a sentence of one to ten years. Here, Waters was sentenced on the theft by taking charge to serve five years on probation as a first offender.

As noted, Fratt testified that she could probably sell the saddle for $1,500 to $1,800, that she bought it new in 1972 for “about” $2,500, and that it had “escalated” in value. Evidence of purchase price, standing alone, is insufficient to establish the property’s value. Denson v. State, 240 Ga. App. 207, 208 (2) (523 SE2d 62) (1999). And because Fratt gave no basis or reason for her opinion as to the saddle’s current fair market value, the State’s evidence as to value is insufficient to support a felony theft by taking conviction. Gamble v. State, 160 Ga. App. 556, 557 (2) (287 SE2d 593) (1981). However, because the evidence does support a misdemeanor theft by taking charge, we vacate the felony conviction and remand with the direction that a conviction and sentence be entered for the misdemeanor offense. Hogan v. State, 193 Ga. App. 543 (1) (388 SE2d 532) (1989).

2. As relevant to this case, simple battery is committed when a person “[intentionally makes physical contact of an insulting or provoking nature with the person of another.” OCGA § 16-5-23 (a) (1). Here, Waters was charged with intentionally making such contact with Fratt’s stepdaughter, and the evidence he pushed her while attempting to move past her during a dispute over nonpayment of his bill is sufficient to sustain his conviction of simple battery under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Accordingly, we affirm that conviction.

3. The indictment charged that Waters knowingly and without authority entered Fratt’s barn after receiving notice from an authorized representative, her stepdaughter, that such entry was forbidden. The elements of criminal trespass are that a person (1) knowingly and without authority (2) enters upon the premises of another (3) after receiving notice from an authorized representative of the property owner that such entry is forbidden. OCGA § 16-7-21 (b) (2). The record supports the first two elements, but it is devoid of evidence that Fratt’s stepdaughter was her authorized representative. We do not address whether a stepchild is or is not an authorized representative generally, but conclude that, in this case, the State failed to present any evidence on the issue of authorization. Accordingly, we must reverse the conviction of criminal trespass. Jackson v. State, 242 Ga. App. 113, 114 (528 SE2d 864) (2000).

4. The elements of criminal use of an article with an altered identification mark, as relevant to this case, are possessing a designated article of apparatus or equipment from which the possessor “knows the manufacturer’s name plate, serial number, or any other distinguishing number or identification mark has been removed for the purpose of concealing or destroying the identity of such article.” OCGA § 16-9-70 (a). Waters argues, in substance, that “manufacturer’s” modifies “any other distinguishing number or identification mark” as well as “name plate” and “serial number,” and we agree that that construction comports with the grammatical structure of the quoted clause. Additionally, the State cites no cases supporting its position that “manufacturer’s” modifies only the first two phrases. Waters cites a number of cases involving OCGA § 16-9-70 and correctly points out that none of them relates to a number or identification affixed by a user or owner. We have also reviewed all other cases citing that section and its predecessor in Code 1933, § 26-1506, and have found no instance involving a number or identification affixed by a user or owner. When “the statutory language is plain and does not lead to absurd or impracticable consequences, the court simply construes it according to its terms and conducts no further inquiry.” Ghai v. State, 219 Ga. App. 479 (465 SE2d 498) (1995). In view of the plain language of OCGA § 16-9-70 (a), we hold that it applies only to a manufacturer’s number or identification information and accordingly reverse Waters’ conviction of this charge.

Decided October 30, 2001.

Prank W. Hamilton, Gary C. Harris, for appellant.

Philip C. Smith, District Attorney, for appellee.

Although not argued by the parties, we further note that a saddle is not one of the specified items in OCGA § 16-9-70 (a) and does not fall within this Code section’s catchall description of “any other mechanical or electrical device, appliance, contrivance, material, or piece of apparatus or equipment.” A saddle is not mechanical or electrical in nature and therefore is not the type of article covered by OCGA § 16-9-70 (a).

In conclusion, Waters’ conviction for simple battery is affirmed, his convictions for criminal trespass and criminal use of an article with an altered identification mark are reversed, his conviction for theft by taking property with a value in excess of $500 is vacated, and the case is remanded with direction that a conviction and sentence be entered for the misdemeanor offense of theft by taking.

Judgment affirmed in part, reversed in part, vacated in part and case remanded with direction.

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


author: Miller, Judge.

text:
    A01A0859.
    WALLICK v. PERIOD HOMES, LTD.
    (555 SE2d 863)
   Miller, Judge.

The question on appeal is whether a Chapter 11 bankruptcy debtor, whose petition has been discharged after all debts are paid, is judicially estopped from pursuing a claim against a party who allegedly breached a contract to buy the bankruptcy estate’s primary asset, which claim was never added to the bankruptcy’s asset schedule. We hold that the cause of action was a proceed or product of a scheduled asset of the bankruptcy estate and that no clear mandate obligated the debtor to supplement the asset schedule to add this as a separate asset. Accordingly, judicial estoppel does not apply to bar the action.

While in a Chapter 11 bankruptcy, Douglas Wallick as debtor in possession contracted to sell the bankmptcy estate’s primary asset — real estate owned by him and some co-tenants — to Period Homes, Ltd. for $800,000. Period Homes terminated the contract, ostensibly because it could not timely obtain needed governmental approvals for the proposed use of the property. The landowners then sold the property to another party for $730,000. The bankruptcy was converted to a Chapter 7 bankruptcy, and after the Chapter 7 trustee paid all claims, the trustee had surplus proceeds of $61,000, which he turned over to Wallick.

Wallick then brought this action against Period Homes for breach of contract and moved for summary judgment, arguing that the evidence was undisputed that Period Homes had failed to pursue the needed governmental approvals in good faith as required by the contract. Period Homes also moved for summary judgment, arguing that Wallick’s failure to amend his Chapter 11 bankruptcy schedules to include this cause of action as a separate asset barred the action under the doctrine of judicial estoppel. The trial court granted summary judgment in favor of Period Homes on the ground of judicial estoppel and denied Wallick’s motion. Wallick appeals both rulings.

1. The doctrine of judicial estoppel was first followed in Georgia in Southmark Corp. v. Trotter, Smith & Jacobs and precluded a party from asserting in a judicial proceeding a position contrary to that successfully asserted in a prior proceeding. “The application of the doctrine preserves the integrity of the judicial forum by not permitting a debtor to take inconsistent positions to manipulate the system.” This doctrine is commonly applied to preclude the subsequent prosecution of an unliquidated tort claim that a discharged debtor fails to list as an asset in the federal bankruptcy petition. The rationale is that the failure to reveal an asset (such as a cause of action) results in three problems: (1) it constitutes a denial that the asset exists, (2) it deprives the bankruptcy court of the information needed to evaluate and rule on the bankruptcy petition, and (3) it deprives creditors of resources that may satisfy unpaid obligations.

When the doctrine was first applied in Southmark Corp., the debtor failed to list a cause of action that had accrued prior to the filing of the Chapter 11 bankruptcy petition. Subsequent cases have extended the doctrine to preclude the assertion of claims that accrued after the filing of the petition but before discharge, where the bankruptcy laws have required the debtor to amend the asset schedules to include later-arising causes of action. Notably, the cases so holding have involved bankruptcies under Chapter 13, which chapter expressly includes in the bankruptcy estate all 11 USC § 541 property acquired by the debtor after commencement of the case but before the case is closed, dismissed, or converted to a proceeding under Chapter 7, 11, or 12.

Thus, the relevant question in this Court is whether federal bankruptcy law would require Wallick to amend his asset schedule to include the breach of contract claim which accrued pending the Chapter 11 bankruptcy before it was converted to a Chapter 7 bankruptcy. A thorough review of federal law provides no clear law requiring Wallick to amend his asset schedule.

To address this question, we first note that the breach of contract claim against Period Homes arose out of Wallick’s attempt to sell property of his bankruptcy estate while his bankruptcy was pending. Since this property interest was clearly an asset of the bankruptcy estate, any proceeds, product, or profit from this property was by statute an asset of the estate. Indeed, any interest in property that the estate (as opposed to the debtor) acquired after the commencement of the bankruptcy case became an asset of the estate.

A tort or contract claim arising out of an attempt, during the bankruptcy, to sell bankruptcy estate property is considered a proceed, product, or profit of that property and thus is considered an asset of the estate. In In re Acton Foodservices Corp., Mr. MartinTrigona filed for a Chapter 11 bankruptcy in 1980 that was later converted to a Chapter 7 bankruptcy in 1982. Before the conversion, Martin-Trigona in 1981 sold his interests in a radio station to Acton Corporation, which sale he subsequently claimed was fraudulent. The court held that the fraud claim belonged to the Chapter 7 trustee, reasoning that such was a proceed, product, or profit of the interest in the radio station, which was an asset of the estate:

In the case at bar, any legal and/or equitable interests that Mr. Martin-Trigona may have had or asserts to have in [the radio station] became property of his Chapter 11 estate in 1980. Any cause of action that may have accrued from any federal or state violation of those rights subsequent to the Chapter 11 filing, including causes of action that arose out of the 1981 sale of the radio station, are the property of Mr. Martin-Trigona’s Chapter 7 trustee.

In re Grosse similarly held that a claim arising out of the defendants’ alleged tortious conversion of bankruptcy estate property was a “‘product’” of the estate property and thus was property of the estate.

In In re Reed, the alleged negligence of certain defendants caused a fire that damaged the Chapter 7 bankrupt’s personal property. The bankrupt sought to recover the damages, and the bankruptcy court held that the case was properly before it as a question involving “proceeds” of the estate, reasoning:

To the extent the debtor’s personal property, which existed as of the date of her filing bankruptcy, was damaged by the negligent conduct of the defendants, there is ample support for concluding that jurisdiction exists even though the negligence occurred postpetition. Although 11 USC § 541 (a) (1) refers to property interests “as of the commencement of the case,” the debtor is correct that under 11 USC § 541 (a) (6) the estate includes the postpetition proceeds from such property interests. Those “proceeds” may include insurance payments or damage claims; the critical factor is that, although the right to payment arose postpetition, the property at issue was prepetition property which became part of the estate. [Cits.]

Stated differently, a property interest acquired postpetition during the pendency of a Chapter 11 case qualifies as property of the estate if the property interest is traceable to or sufficiently rooted in some prepetition interest which is already included in the bankruptcy estate. Thus, the damage claim here arising out of Period Homes’s alleged breach of the contract to purchase the estate’s primary asset is a “product” or “proceeds” of the estate, or at least is traceable to or sufficiently rooted in a prepetition interest that was already a part of the estate, and thus became property of the estate under 11 USC § 541 (a) (6) and (7).

There is no authority which requires a debtor to amend or supplement his asset schedule to list proceeds or product of estate property as a separate asset on the asset schedule. Indeed, proceeds or product is implicit in the very listing of the original estate property out of which the proceeds or product arises. This is distinguishable from Chapter 13 cases where the duty to amend asset schedules arises and clearly includes causes of action accruing during the bankruptcy. The duty to amend Chapter 11 asset schedules to include proceeds or product as separately listed assets of the estate is unclear. Absent a clear duty, we will not hold that the failure to amend those schedules to specify the proceeds or product of a listed asset operates as a denial that such proceeds or product exists so that a subsequent effort to pursue that proceeds or product should be barred under the harsh doctrine of judicial estoppel.

We recognize that two Georgia cases involve specifically Chapter 13 bankruptcies and may be read to confuse this issue with regard to Chapter 11 bankruptcies. Without any statutory analysis or citation to controlling authority, Wolfork v. Tackett and Kittle v. ConAgra Poultry Co. summarily concluded in obiter dicta that, like Chapter 13, Chapter 11 requires the debtor to amend his asset schedules to include all after-acquired causes of action. Since this is clearly dicta, it is not binding authority on this Court. Notably, although there is some indirect authority for the conclusions of these two cases, the overwhelming majority of the federal courts would indicate otherwise. The weight of authority holds that because Chapter 7 and Chapter 11 of the Bankruptcy Code do not have the section found in Chapter 13 which expressly includes all after-acquired property of the debtor, the only property belonging to a Chapter 7 or Chapter 11 estate which arises postpetition is that which falls into 11 USC § 541 (a) (6) or (7). The federal cases do not directly address the duty to supplement schedules, but do hold that causes of action accruing postpetition are not property of the estate unless they arise out of the estate’s property.

Judicial estoppel is not appropriate and would not apply since there is no federal mandate which requires the supplementation of asset schedules to include proceeds or product of the bankruptcy estate’s property. Moreover, the debtor here kept the bankruptcy court abreast of his efforts to sell the property and in fact obtained bankruptcy court approval to sell the property at issue to Period Homes. After the sale fell through, he twice informed the court, albeit in an indirect manner, that a breach of contract claim possibly existed against Period Homes. Certainly he did not conceal any realized proceeds, such as cash. We decline to hold that Wallick successfully asserted a position in bankruptcy court that was contrary to that asserted later in state court.

The trial court erred in applying judicial estoppel to bar Wallick’s claim against Period Homes. Summary judgment in favor of Period Homes is reversed.

2. Wallick contends that the trial court should have awarded him summary judgment on his complaint. Wallick argues that the evidence was undisputed that Period Homes failed to act in good faith in its efforts to obtain the governmental approvals and thus Period Homes’s termination of the contract based on its inability to obtain those approvals within 30 days was unauthorized.

The contract provided that the agreement was “contingent upon Purchaser’s ability to acquire all required licenses and permits from the appropriate governmental authority to build on the property.” If Period Homes notified Wallick in writing within 30 days that it was unable to acquire all required licenses and permits, the contract would automatically terminate. Failure to provide such notice would waive the contingency by the purchaser.

Some evidence showed that during the 30-day period Period Homes’s representatives met with officials from Fulton County to discuss rezoning issues and that the representatives contacted the Atlanta Regional Commission and the Army Corps of Engineers regarding needed approvals. Period Homes determined that it could not obtain the required permits within the allotted time and so informed Wallick orally, seeking an extension of time. When Wallick refused the extension, Period Homes immediately sent a written notice terminating the contract, although the reason for the termination was not specified in the notice.

Decided October 30, 2001

Freed & Bermen, Robert H. McKnight, for appellant.

Gray & Gilliland, Charles A. Ratz, Self, Glaser & Davis, Mark B. Bullman, for appellee.

The question of whether these were genuine good faith efforts to meet the governmental approval contingency in the contract is a question of fact for the jury to resolve at trial, as opposed to the court on summary judgment. The court correctly denied summary judgment on these grounds.

3. Wallick also claims that summary judgment in his favor was required in that the written notice of termination was insufficient as a matter of law to invoke the contingency clause. Wallick points out that Period Homes’s notice did not specify the lack of governmental approvals as the reasons for the termination and that therefore Period Homes waived the contingency.

It is true that the contract contemplated that the written notice would set forth that Period Homes was unable to acquire needed governmental approvals. Substantial compliance with notice provisions, however, may suffice so long as the contemplated information is communicated. Thus, we hold that a jury could find that the oral conversation immediately before sending the notice, in which conversation the representative of Period Homes specified Period Homes’s inability to acquire the licenses and permits, sufficiently informed Wallick of the basis for the notice. The court correctly denied summary judgment on this issue.

Judgment affirmed in part and reversed in part.

Andrews, P. J., and Eldridge, J., concur.

       At that time Period Homes was known as Christian & Associates.

       212 Ga. App. 454, 455 (442 SE2d 265) (1994).

       (Footnote omitted.) Wolfork v. Tackett, 273 Ga. 328, 329 (540 SE2d 611) (2001).

       Id. at 328.

       Id.

       Supra, 212 Ga. App. at 455-456.

       See, e.g., Wolfork, supra, 273 Ga. at 329; Smalls v. Walker, 243 Ga. App. 453, 456-457 (2) (532 SE2d 420) (2000).

       11 USC § 1306 (a) (1).

       11 USC § 541 (a) (6).

       11 USC § 541 (a) (7); see In re Doemling, 116 Bankr. 48, 50 (W.D. Pa. 1990).

       39 Bankr. 70 (D. Mass. 1984).

        Id. at 72.

       44 Bankr. 200, 202 (E.D. Pa. 1984) (Chapter 7 case).

         94 Bankr. 48 (E.D. Pa. 1988).

       Id. at 52-53 (III).

        In re Doemling, supra, 116 Bankr. at 50; Sundae v. Scott, 529 NW2d 362, 364 (Minn. App. 1995); see Segal v. Rochelle, 382 U. S. 375, 380 (86 SC 511, 15 LE2d 428) (1966); Field v. Transcontinental Ins. Co., 219 Bankr. 115, 119, n. 7 (E.D. Va. 1998), aff’d, 173 F3d 424 (4th Cir. 1999).

       See Haley v. Dow Lewis Motors, 72 Cal. App.4th 497, 504-506 (I) (1999) (wrongful foreclosure on bankruptcy estate property is a claim that is property of estate); Bostanian v. Liberty Sav. Bank, 52 Cal. App.4th 1075, 1083-1085 (II) (C) (1997) (same).

        Wolfork v. Tackett, 241 Ga. App. 633, 634 (526 SE2d 436) (1999), aff’d, supra, 273 Ga. 328.

       Supra, 273 Ga. at 329.

       247 Ga. App. 102, 105 (1) (a) (543 SE2d 411) (2000).

       See Leach v. Aetna Cas. &c. Co., 172 Ga. App. 785, 786 (324 SE2d 494) (1984) (on motion for rehearing), aff’d, Aetna Cas. &c. Co. v. Leach, 254 Ga. 265 (330 SE2d 596) (1985).

       See Chandler v. Samford Unto., 35 FSupp.2d 861, 864, n. 3 (N.D. Ala. 1999); Brassfield v. Jack McLendon Furniture, 953 FSupp. 1424, 1432 (1) (M.D. Ala. 1996); In re Griseuk, 165 Bankr. 956, 958-959 (M.D. Fla. 1994).

       See 11 USC § 1306.

       See Bell v. Bell, 225 F3d 203, 217-218 (II) (C) (3) (2nd Cir. 2000); Sandoval v. Sandoval, 103 F3d 20, 22-23 (II) (B) (5th Cir. 1997); In re Colder, 973 F2d 862, 866 (II), n. 5 (10th Cir. 1992); In re Williamson, 804 F2d 1355, 1360 (IV) (B) (5th Cir. 1986); Koch v. Myrvold, 784 F2d 862, 863 (8th Cir. 1986); In re Winom Tool & Die, 173 Bankr. 613, 623-624 (E.D. Mich. 1994); In re Doemling, 127 Bankr. 954, 956, n. 1 (W.D. Pa. 1991); In re Whitman, 106 Bankr. 654, 657-658 (S.D. Cal. 1989); In re Fleet, 53 Bankr. 833, 838 (A) (E.D. Pa. 1985).

       See Re/Max Executives v. Vacalis, 234 Ga. App. 659, 661 (2) (507 SE2d 235) (1998); Century 21 Mary Carr &c. v. Jones, 204 Ga. App. 96, 97 (418 SE2d 435) (1992); Smithloff v. Benson, 173 Ga. App. 870, 873 (1) (328 SE2d 759) (1985).

       AHC Physicians Corp. v. Dulock, 233 Ga. App. 634, 635-636 (504 SE2d 464) (1998).


author: Mikell, Judge.

text:
    A01A1709.
    DEAN v. THE STATE.
    (555 SE2d 868)
   Mikell, Judge.

Michael Lorenzo Dean was convicted of three counts of child molestation by a Gordon County jury. Dean was sentenced to 20 years, 15 of which he was ordered to serve in confinement, with the remainder on probation. On appeal, Dean argues that the verdict is contrary to the weight of the evidence. He also asserts as error the state’s failure to establish the standard of proof for its expert’s testimony and the trial court’s charge to the jury that it could find him guilty if it concluded that the alleged molestation occurred within the four years prior to the dates set forth in the indictment. Finally, Dean contends that his trial counsel was ineffective. For the reasons stated below, we affirm.

“On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence.” So construed, the evidence shows that the victim, 11-year-old B. D., visited her father, the. defendant, during the weekend of November 9, 1997. Rhonda Ray, B. D.’s mother, testified that when B. D. returned home on Sunday, November 11, 1997, “she was real quiet. She would not speak. She would not talk or anything. She just moped around with her head hung.” When Ray asked B. D. what was wrong, B. D. said that her daddy had sex with her. Ray immediately took B. D. to the hospital.

At the hospital, B. D. was examined by Dr. David Porterfield. Upon examining B. D., Dr. Porterfield found a bruise and a tear in the internal opening of B. D.’s vaginal area. Dr. Porterfield testified that the tear was “a reasonably fresh injury” and would have had to have occurred within a couple of days. Further, the tear showed that some stretching force was applied. Dr. Porterfield concluded that B. D.’s physical symptoms were consistent with her allegation of molestation.

Officer Laura McElrath was called to the scene to take pictures of B. D. After Officer McElrath introduced herself to B. D., the child asked, “did they tell you what my daddy did to me” and told the officer that her daddy had sex with her. Officer McElrath explained to B. D. that she was at the hospital because of B. D.’s allegation, but she could not ask B. D. any questions. Officer McElrath took pictures of B. D. as Dr. Porterfield pointed out the injuries and blood seepage in B. D.’s vaginal area.

Later that evening, B. D. was interviewed by Officer McElrath in the presence of James Binnicker, who was an employee of the Department of Family & Children Services. B. D.’s mother was not allowed in the interview room. B. D. told Officer McElrath that Dean put his hand and his “dick” in her vagina, which she referred to as her “monkey.” B. D. told them that when she went to the bathroom, she noticed a little blood on the toilet paper. Also, she felt “slobber” from Dean’s private part when he had it in her “monkey,” and it was in her underwear the next morning. The description that B. D. gave during the interview with Officer McElrath was consistent with her trial testimony.

1. In his first enumeration of error, Dean argues that the verdict is contrary to the weight of the evidence because there were several inconsistencies in B. D.’s testimony and there was evidence that he had an alibi. We disagree.

Dean’s mother testified that B. D. spent the night with her on the evening of Friday, November 7, 1997, and that Dean did not stay with them. Dean’s friend, Steve Mulkey, testified that on Friday, November 7, 1997, Dean came to his house to work on Mulkey’s car and did not leave until 4:30 a.m. on Saturday, November 8, 1997.

As an appellate court, we determine the legal sufficiency of the evidence adduced below and do not weigh the evidence or assess the credibility of the witnesses. “Conflicts in the testimony of the witnesses, including the State’s witnesses, [are] a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” Applying the standard established in Jackson v. Virginia to the facts in this case, we find that B. D.’s testimony, along with that of Dr. Porterfield, was sufficient to support Dean’s conviction of child molestation.

2. Dean next enumerates as error the state’s failure to establish the standard of proof required of its expert’s medical opinions. Dr. Porterfield testified that it was his professional opinion that B. D.’s injuries were consistent with the allegation of sexual molestation. Dean argues, citing no authority, that because in civil cases expert opinions must be based on a reasonable degree of medical probability, there must be some standard of proof for medical testimony in criminal cases due to the heightened burden of proof that is required. This argument lacks merit.

“[I]t is not the doctor’s expert opinion (or any other individual bit of evidence) alone, but the totality of the evidence that must be sufficient to convince the trier of fact ‘beyond a reasonable doubt.’ ” Because we find that the totality of the evidence was sufficient to support a verdict of guilty beyond a reasonable doubt, this enumeration fails.

3. Dean argues that the trial court erred when it charged the jury that it could find him guilty if it found he committed the alleged acts not only between the dates alleged in the indictment (November 7-9,1997), but also at any time within four years prior to those dates. Dean contends that the charge was not consistent with the evidence and was prejudicial to his alibi defense. As discussed in Division 4 below, the charge was not an accurate statement of the law. Nonetheless, the particular objections made by Dean are without merit.

“The general rule is that when the exact date of the commission of the crime is not a material allegation of the indictment, the commission of the offense may be proved to have occurred any time within the statute of limitations.” This rule applies even when the defense is alibi. Thus, the trial court was allowed to include the limitation period in the charge.

Acknowledging the confusion created when this rule is juxtaposed with the alibi defense, however, we have held that a charge that includes the period of limitation is not grounds for reversal where the requirements set forth in DePalma v. State have been met. Under DePalma, the accused must be informed of the charges against him, so that he may be able to present his defense and not be taken by surprise by the evidence offered at the trial, and he must be protected against another prosecution for the same offense. In this case, the requirements have been met. Furthermore, in light of B. D.’s statement that this was the only time her father had molested her, the trial court’s inclusion of the limitation period in its charge to the jury did not prejudice Dean’s alibi defense.

4. The trial court misstated the applicable statute of limitation in its instructions. The precise charge given was:

Now, if after considering the testimony and the evidence which has been presented to you, together with these instructions I have given you, you should find and believe beyond a reasonable doubt that the defendant did commit this offense, or an offense alleged in a count, in Gordon County between November the 7th and November the 9th, 1997, or at any time within four years prior to that date, you would be authorized to find the defendant guilty.

The court perhaps intended to instruct the jury that it could find the defendant guilty if the evidence proved the offense occurred within four years prior to the date of the indictment. A similar charge has frequently been approved by the appellate courts. As discussed in Division 3 above, when the exact date is not a material allegation of the indictment, the commission of an offense may be proved to have occurred any time within the statute of limitation.

Because the victim in the case at bar was less than fourteen years of age at the time of the crime, the statute of limitation was seven years. In Georgia, the limitation period expires when a suspect is indicted or, more precisely, when the indictment is “returned.” The three indictments in the record are undated but reflect that they were prepared during the March 1998 term of Gordon Superior Court. Thus the defendant could have been convicted upon proof that he committed the crimes alleged between March 1991 and March 1998. This is a longer period than that specified by the trial judge, i.e., the four-year period prior to November 7 (or November 9), 1997. The misstatement in the jury instructions was favorable to the defendant, and he can claim no prejudice.

5. Finally, Dean argues that his trial counsel was ineffective because he failed to do the following: (a) object that the state’s expert’s opinions were not based upon a reasonable degree of medical certainty; (b) object to the jury charge regarding the time within which the crime could have been committed; (c) ask the state’s expert whether the fact that B. D.’s hymen was intact was inconsistent with the allegation that Dean had sex with B. D. while lying on top of her; (d) introduce the child custody order showing the pending custody action; and (e) effectively cross-examine the state’s witnesses about the origination of B. D.’s complaint. These arguments fail.

“[I]n order to prevail on a claim of ineffectiveness of trial counsel, a defendant must show that his attorney’s performance was deficient and that the deficiency prejudiced him such that a reasonable probability exists that, but for the attorney’s errors, there would have been a different outcome at trial.” Furthermore, “[a] court ... is not required to address the performance portion of the inquiry before the prejudice component or even to address both components if the defendant has made an insufficient showing on one[, and its] finding of effectiveness must be upheld unless clearly erroneous.”

(a) In Division 2 of this opinion, we rejected Dean’s argument that the state failed to establish the standard of proof to which its expert based his medical opinions. Thus, any argument by trial counsel that the state’s expert was required to testify to a “reasonable degree of medical certainty” would have lacked merit. Thus, trial counsel’s failure to assert such an argument cannot be considered deficient performance.

(b) In Divisions 3 and 4 of this opinion, we concluded that the trial court’s charge to the jury regarding the statute of limitation for child molestation was not erroneous. Thus, had trial counsel objected to the charge, his objection would have lacked merit. “Failure to make a meritless objection cannot be evidence of ineffective assistance.”

(c) Dean’s contention that his counsel was ineffective for failing to ask the state’s expert whether the fact that B. D.’s hymen remained intact after the alleged molestation was consistent with her allegation lacks merit. “[A] matter such as the cross-examination of a witness is most often grounded in matters of trial tactics and strategy and, in those instances, provides no basis for finding counsel’s performance deficient.” Furthermore, since Dean has not proffered the witnesses’ expected testimony, he cannot show that counsel’s failure to pose this particular question affected the outcome of his case.

“The failure of trial counsel to employ evidence cannot be deemed to be 'prejudicial’ in the absence of a showing that such evidence would have been relevant and favorable to the defendant.” In fact, the record shows that the evidence was to the contrary. The state’s expert volunteered that B. D.’s hymen was intact during direct examination, yet still maintained that her injuries were consistent with child molestation. Accordingly, since there is no evidence that the answer to this question would have been favorable to Dean, we find that he was not prejudiced by his trial counsel’s failure to pose the question.

Decided October 30, 2001.

Rodney L. Mathis, for appellant.

T. Joseph Campbell, District Attorney, Sharon M. Fox, Assistant District Attorney, for appellee.

(d) Regarding trial counsel’s failure to introduce the child custody order to show the pending custody action, we note that both B. D. and her mother testified about the pending custody action. Thus, it was a factor for the jury’s consideration, rendering the introduction of the order into evidence cumulative. Because Dean has not shown that there is a reasonable probability that its introduction would have produced a different outcome, trial counsel’s failure to do so cannot support an ineffectiveness claim.

(e) Finally, Dean contends that his trial counsel’s performance was deficient because counsel failed to cross-examine witnesses about the origination of B. D.’s complaint. Specifically, Dean asserts that B. D. told her mother that she “had itching down there” and did not report molestation until her mother questioned her about the itching. This assertion, however, is not supported by the record. Conversely, the record shows that B. D. told her mother that she was hurting, not itching. Also, Dr. Porterfield testified on redirect examination that B. D.’s injuries were not consistent with B. D. having scratched herself. Thus, even if we assume that trial counsel’s failure to cross-examine the witnesses on this issue was deficient, Dean has not shown that, but for this error, he would not have been convicted.

Judgment affirmed.

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

       (Citation and punctuation omitted.) Hutchinson v. State, 232 Ga. App. 368, 369 (501 SE2d 873) (1998).

       Id.

       (Citation and punctuation omitted.) Jones v. State, 226 Ga. App. 420, 423-424 (3) (487 SE2d 56) (1997).

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

       “A person commits the offense of child molestation when he or she does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” OCGA § 16-6-4(a).

        Irby v. State, 260 Ga. 401, 403 (1) (396 SE2d 210) (1990).

       (Citation and punctuation omitted.) Knight v. State, 210 Ga. App. 63, 65 (2) (435 SE2d 276) (1993).

        Whittington v. State, 184 Ga. App. 282, 285 (4) (361 SE2d 211) (1987).

       225 Ga. 465 (169 SE2d 801) (1969).

        Whittington, supra at 285 (4).

        DePalma, 225 Ga. at 469-470 (3).

       See, e.g., Robinson v. State, 175 Ga. App. 845 (334 SE2d 886) (1985); Reed v. State, 130 Ga. App. 659 (204 SE2d 335) (1974); Martin v. State, 57 Ga. App. 346 (195 SE 313) (1938).

       OCGA § 17-3-1 (c); Thompson v. State, 212 Ga. App. 175, 176 (2) (442 SE2d 771) (1994).

       Daniel, Ga. Crim. Trial Prac. (1999 ed.), § 14.60, citing Flint v. State, 12 Ga. App. 169 (76 SE 1032) (1913). See also Lee v. State, 232 Ga. App. 300, 301 (1) (501 SE2d 844) (1998); State v. Rustin, 208 Ga. App. 431, 433 (2) (430 SE2d 765) (1993); OCGA § 16-1-3 (14).

       The March term of Gordon County Superior Court lasts three months. However, the conviction was entered on March 31, 1998, so the indictments must have been filed during the month of March.

       (Citation omitted.) Butler v. State, 273 Ga. 380, 384 (10) (541 SE2d 653) (2001).

       (Citation and punctuation omitted.) Green v. State, 240 Ga. App. 650, 652-653 (3) (523 SE2d 632) (1999).

       (Citation and punctuation omitted.) Sanders v. State, 211 Ga. App. 859, 862 (1) (440 SE2d 745) (1994).

        Butler v. State, supra at 385 (10) (b).

       (Citation and punctuation omitted.) Mitchell v. State, 220 Ga. App. 264, 266 (469 SE2d 707) (1996).

       See Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).


author: Phipps, Judge.

text:
    A01A2511.
    OCHOA v. THE STATE.
    (555 SE2d 857)
   Phipps, Judge.

Jorge Ochoa was convicted of the sexual molestation of N. P., his seven-year-old niece. His motion for new trial was denied. He appeals, challenging the sufficiency of the evidence, N. P.’s competence to testify, the effectiveness of his trial attorney, and testimony given by various State’s witnesses. Finding no merit in any of Ochoa’s claims of error, we affirm.

1. Ochoa maintains that the evidence was insufficient to support the verdict primarily because N. P. gave conflicting pretrial statements concerning the events in question and recanted her allegations against him at trial.

There was, however, evidence authorizing the jury to find that the child recanted because she thought her charges against Ochoa were breaking up her family. The evidence additionally showed that N. P. was normally a bright and happy child but began to experience negative changes in her mood, temperament, and behavior after Ochoa molested her. N. P. initially disclosed the molestation by telling a neighbor that Ochoa had placed her hand on his penis. Upon urging by the neighbor, N. P. then told her mother, who informed her father. He confronted Ochoa, who lived with N. P. and her family. After talking to Ochoa, N. P.’s father told her mother that he felt sorry for him and would allow him to continue living in the household until he could find somewhere else to live.

N. P.’s parents did not report this matter to police. They did, however, take N. P. to see a therapist because of emotional problems she began to experience. Using nonsuggestive interview techniques, the therapist engaged the child in conversation in which she said that, in addition to placing her hand on his penis, Ochoa had exposed his penis to her.

The neighbor to whom the initial disclosure had been made inadvertently divulged what had happened to a Department of Family & Children Services (DFACS) investigator who was pursuing another child abuse case. This led to N. P. being questioned by the DFACS investigator. A videotape of the interview, which was played to the jury, shows that N. P. gave the investigator a detailed account of Ochoa exposing his penis to her, trying to make her place her hand on it, and attempting to place his penis on her.

It is the jury’s role to resolve conflicts in the evidence. We construe the evidence in a light most favorable to support the verdict. So construed, the evidence authorized a rational trier of fact to find Ochoa guilty of child molestation beyond a reasonable doubt.

2. The totality of the testimony given by N. P. before she was sworn authorized the court to find that she understood the nature of an oath, thereby eliminating her from the list of incompetent witnesses in OCGA § 24-9-5 (a). Moreover, OCGA § 24-9-5 (b) renders the accuser in criminal cases involving child molestation competent to testify even if the child would otherwise be incompetent as a witness because of a lack of understanding of the nature of an oath.

Decided October 30, 2001.

Barry E. Billington, for appellant.

Patrick H. Head, District Attorney, Frances D. Hakes, Amy H. McChesney, Assistant District Attorneys, for appellee.

3. Ochoa complains of testimony by the DFACS investigator that recantation by child molestation victims is a common occurrence and that seven-year-old children are generally unable to acquire knowledge of certain sexual matters unless they have been molested.

Because this testimony was elicited from the witness by defense counsel during cross-examination, any error was induced and Ochoa cannot complain of it.

4. Ochoa complains of testimony elicited by the prosecuting attorney from a clinical social worker who appeared as a State’s witness.

In pertinent part, the social worker testified that, in her experience, fewer than ten percent of child accusers make false allegations as to sexual molestation. Because defense counsel objected to this testimony without stating grounds for the objection or invoking a ruling on the objection from the trial court, any objection has been waived. Admission of this testimony was not so clearly erroneous and prejudicial as to warrant a reversal in the absence of an objection.

5. Ochoa has abandoned his ineffective assistance of counsel claim by failing to support it with argument or citation of authority.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

        Metts v. State, 270 Ga. 481, 483 (2) (511 SE2d 508) (1999).

        Brown v. State, 243 Ga. App. 842, 843 (534 SE2d 206) (2000).

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

        Adside v. State, 216 Ga. App. 129, 131 (2) (453 SE2d 139) (1995).

       See Hubbard v. State, 239 Ga. App. 632, 634-635 (3) (521 SE2d 678) (1999).

       See Rogers v. State, 247 Ga. App. 219, 226 (9) (543 SE2d 81) (2000).

       Court of Appeals Rule 27 (c) (2); Caldwell v. State, 247 Ga. App. 191, 201 (7) (542 SE2d 564) (2000).