author: Pope, Presiding Judge.

text:
    A98A1278.
    THE STATE v. LEVINS.
    (507 SE2d 246)
   Pope, Presiding Judge.

Michael Levins was charged with driving under the influence of alcohol (DUI), driving with an unlawful alcohol concentration while under the age of 21, possessing alcohol while under the age of 21, and speeding. He filed a motion to suppress the results of a state-administered blood test. The trial court granted the motion because the arresting officer gave an implied consent notice to Levins that did not match the exact language of OCGA § 40-5-67.1 (b) (1). The state appeals from the court’s order granting the motion to suppress the results of the blood test.

1. Levins’ motion to dismiss the state’s direct appeal is without merit. The state is authorized to appeal directly from the trial court’s order suppressing the blood test results allegedly obtained in violation of OCGA § 40-5-67.1. See OCGA § 5-7-1 (a) (4); State v. Strickman, 253 Ga. 287 (319 SE2d 864) (1984).

2. The state asserts the trial court erred in ruling that the blood test results must be suppressed because the officer did not give an implied consent notice exactly tracking the language of OCGA § 40-5-67.1 (b) (1). At the time of the ruling, the trial court relied on opinions from this Court interpreting the statute as requiring an exact reading of the notice. See State v. Halstead, 230 Ga. App. 208 (496 SE2d 279) (1998); State v. Barfield, 230 Ga. App. 141 (495 SE2d 622) (1998); State v. Fielding, 229 Ga. App. 675 (494 SE2d 561) (1997). But since the trial court’s ruling, the legislature has amended OCGA § 40-5-67.1 (b) so that it plainly does not require a verbatim reading of the implied consent notice. In passing the amendment, the General Assembly declared, but did not codify, “that while suspects in [DUI] cases should be informed of their rights regarding the administration of chemical testing, no such suspect is entitled to a notice which tracks the exact language of the implied consent statute, so long as the substance of the notice remains unchanged.” Ga. L. 1998, p. 210, § 1. The amended OCGA § 40-5-67.1 (b), effective March 27, 1998, provides that the implied consent notice “shall be read in its entirety but need not be read exactly so long as the substance of the notice remains unchanged.” As we recently found in State v. Nolen, 234 Ga. App. 291 (508 SE2d 733) (1998) (physical precedent only), this amended statute should be applied retroactively.

A reviewing court applies the law as it exists at the time its opinion is rendered, rather than the law prevailing at the time the ruling under review was rendered. State v. Martin, 266 Ga. 244, 245 (1) (466 SE2d 216) (1996); Helmeci v. State, 230 Ga. App. 866, 868 (1) (498 SE2d 326) (1998). A reviewing court may therefore reverse a ruling that was correct when it was rendered if the law has been changed in the meantime and application of the new law will not impair a vested right under prior law. Drake v. LaRue Constr. Co., 215 Ga. App. 453, 456 (2) (451 SE2d 792) (1994). In the current case, application of the amended OCGA § 40-5-67.1 (b) will not impair any vested right of Levins. “[T]he criminal defendant has no vested right to any particular rule of evidence or procedure; and the general assembly and the appellate courts may change the rules of evidence and procedure to his detriment so long as his substantive, statutory and constitutional rights are not breached thereby. [Cits.]” Anderson v. State, 163 Ga. App. 571, 573 (5) (295 SE2d 748) (1982). Levins has no vested right to the implied consent notice that was required by OCGA § 40-5-67.1 (b) before the amendment.

“Where a statute governs only procedure of the courts, including the rules of evidence, it is to be given retroactive effect absent an expressed contrary intention.” (Citations and punctuation omitted.) Holsey v. State, 199 Ga. App. 782, 783 (3) (406 SE2d 127) (1991). “Substantive law is that law which creates rights, duties, and obligations. Procedural law is that law which prescribes the methods of enforcement of rights, duties, and obligations. [Cits.]” Polito v. Holland, 258 Ga. 54, 55 (3) (365 SE2d 273) (1988). OCGA § 40-5-67.1 (b) does not create any substantive legal rights. Instead, the statute is a notice provision; it prescribes the methods by which a police officer should notify DUI suspects of their legal rights regarding chemical testing. OCGA § 40-5-67.1 (b) also governs evidence by providing that if a suspect is given proper notice, then any chemical tests, or the refusal to submit to a test, shall be admitted into evidence against the suspect.

The Supreme Court found that a prior amendment to OCGA § 40-5-67.1 (b) “modifies the scope of evidence which may be offered in a DUI trial. It does not affect the manner or degree of punishment and does not alter any substantive rights conferred on [the suspect] by law. [Cits.]” State v. Martin, 266 Ga. at 246 (3). Likewise, the recent amendment to the statute does not alter any substantive rights conferred on Levins. Thus, the amended OCGA § 40-5-67.1 (b) is a procedural, rather than a substantive, law and is to be applied retroactively absent any contrary intention expressed by the legislature. Because there is no express contrary intention, we shall apply the amended statute in this case. See State v. Nolen, supra.

3. Here, the police officer omitted two words from the implied consent notice he read to Levins pursuant to OCGA § 40-5-67.1 (b) (1). He omitted the word “Georgia” from the second sentence of the statutory notice, which provides: “ Tf you refuse this testing, your Georgia driver’s license or privilege to drive on the highways of this state will be suspended for a minimum period of one year.’ ” (Emphasis supplied.) OCGA § 40-5-67.1 (b) (1). He also omitted the word “own” in the next to the last sentence of the notice, which provides: “After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing.” (Emphasis supplied.) OCGA § 40-5-67.1 (b) (1).

Under the amended OCGA § 40-5-67.1 (b), the officer’s reading of the implied consent notice was sufficient. The officer read the notice in its entirety. The two words omitted did not change the substance of the notice. We note that because Levins is a Georgia resident with a Georgia license, this case is materially distinguishable from Deckard v. State, 210 Ga. App. 421 (436 SE2d 536) (1993), in which an out-of-state DUI suspect was improperly told that his non-resident driver’s license could be suspended. Unlike that suspect, Levins was not misled by the omission of the word “Georgia” from the notice because his Georgia license could in fact be suspended.

Because the notice given to Levins was read in its entirety and the two omitted words did not change the substance of the notice required by OCGA § 40-5-67.1 (b), the blood test results are admissible. Although the trial court’s grant of the motion to suppress was based on cases interpreting the law as it existed at the time of the ruling, the change in the applicable law since that ruling requires that we reverse the trial court’s ruling.

Judgment reversed.

Ruffin, J., concurs. Beasley, J., concurs in judgment only.

Decided September 24, 1998

Reconsideration denied October 16, 1998.

Ralph T Bowden, Jr., Solicitor, Thomas E. Csider, W. Cliff Howard, Assistant Solicitors, for appellant.

Furlong & Franco, Leonard L. Franco, for appellee.


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A98A2194.
    FARLEY v. THE STATE.
    (507 SE2d 504)
   Eldridge, Judge.

Edward Farley III was convicted by a jury for the offense of sale of marijuana. He appeals from the denial of bis motion for new trial. Without challenging the sufficiency of the evidence that supports his conviction, Farley alleges that a custodial statement he made, in which he admitted selling marijuana to Georgia Bureau of Investigation (“GBI”) Agent Kimberly Ann Hull, should have been excluded because it was secured in violation of his right to remain silent.

The evidence adduced at the Jackson-Denno hearing shows the following: In Tift County on January 30,1997, Agent Hull was part of an undercover drug investigation during which Farley sold marijuana to the agent. When Farley was arrested on April 3, 1997, Agent Hull interviewed him. Agent Hull testified that she initially advised Farley of his Miranda rights. Then, Agent Hull requested from Farley basic information such as his date of birth and address to complete the waiver of rights form that she was preparing for Farley’s signature. After completing the waiver form, Agent Hull read the form, which included his Miranda rights, in its entirety to Farley. Farley signed the waiver form. Farley did not ask any questions about his rights, and it appeared to Agent Hull that he understood them. Agent Hull further testified that she did not offer Farley any hope or benefit in an attempt to get him to make a statement and that no one threatened or coerced Farley into making a statement. Farley did not request a lawyer at any time.

Agent Hull also testified that, from her observations, Farley did not appear to be under the influence of drugs or alcohol. There was nothing in Farley’s speech or in the manner in which he talked to indicate he was under the influence of alcohol or drugs. Agent Hull did not smell alcohol on Farley, even though they were in close proximity. Farley was responsive to the questions Agent Hull asked and appeared to understand what was happening.

After Farley signed the waiver, Agent Hull asked Farley if he wished to make a statement and Farley stated that he did not. When Farley indicated he did not want to make a statement, Agent Hull terminated the interview and began to fill out a personal identification form that needed to be completed prior to Farley’s return to jail. Agent Hull testified that, minutes later, as she was completing the form, Farley spontaneously and voluntarily initiated a conversation with her, stating something to the effect that “he [Farley] remembered me [Agent Hull] being with him at this location.” Agent Hull responded, “So you do remember me?” Farley responded, “yes.” Farley went on to state that he remembered riding with Agent Hull from Lill’s Bar in Tifton to another location in Tifton to obtain marijuana; he remembered Agent Hull giving him money to purchase marijuana; and he remembered giving Agent Hull the marijuana he had purchased.

“In ruling that the in-custody statement given by the accused was admissible, the trial court must[,] upon consideration of the totality of the circumstances, be satisfied by a preponderance of the evidence that the statement was freely and voluntarily given.” (Citations and punctuation omitted.) Billings v. State, 212 Ga. App. 125, 128 (441 SE2d 262) (1994). Farley asserts that because Agent Hull’s written summary of her interview with Farley did not indicate that Farley initiated the conversation, but only stated that “Agent Hull and Farley began a conversation on the trafficking of narcotics,” the State failed to meet its requisite evidentiary burden under the totality of the circumstances. In explaining the wording of her written summary, Agent Hull testified that she always put her name first on her written summaries.

“On appeal, where the evidence is in conflict, the trial court’s findings on factual determinations and credibility will be upheld unless clearly erroneous.” (Citations and punctuation omitted.) Williams v. State, 199 Ga. App. 122, 123 (404 SE2d 296) (1991). Although the evidence shows that Farley asserted his right to remain silent before the statement was made and that Agent Hull’s written summary did not state who initiated the discussion, the evidence also supports the trial court’s finding that Agent Hull ceased interrogation once Farley invoked his right to remain silent and that, minutes later, Farley waived his previously invoked right to remain silent by spontaneously and voluntarily initiating further communication with Agent Hull about the investigation. Further, because of the short time span between the time Farley was read his Miranda rights and his statement, it was not error that Farley was not again informed of these rights. See Rhodes v. State, 200 Ga. App. 193, 195 (407 SE2d 442) (1991).

Decided October 2, 1998

Reconsideration denied October 16, 1998.

L. Clark Landrum, for appellant.

C. Paul Bowden, District Attorney, for appellee.

Accordingly, we find that the trial court did not err in finding Farley’s statement to be admissible.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.

        Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964).

        Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).


author: Ruffin, Judge.

text:
    A98A0966.
    DAVIS et al. v. FIRST HEALTHCARE CORPORATION.
    (507 SE2d 563)
   Ruffin, Judge.

Raymond Davis, Sr., individually, and Raymond Davis, Jr., as administrator of the Estate of Elsie T. Davis, sued First Healthcare Corporation d/b/a Savannah Convalescent Center (“Savannah Convalescent Center”), a nursing home, for wrongful death and negligence as a result of Elsie Davis falling out of bed while under its care. Savannah Convalescent Center moved for summary judgment, asserting there was no evidence of ordinary negligence to support the claims against it. The trial court granted summary judgment to Savannah Convalescent Center, and the Davises appeal. We reverse.

In their complaint, the Davises allege that on or about January 13, 1994, Elsie T. Davis was found on the floor of her room by another resident at the nursing home. They assert that “Ms. Davis had apparently fallen out of her bed due to not being properly restrained by the staff at Defendant’s nursing home as required by Dr. Schwartz.” The nursing home’s failure to properly restrain Ms. Davis is the only specific allegation of negligence in the complaint.

Savannah Convalescent Center moved to dismiss the complaint based on plaintiffs’ failure to attach an OCGA § 9-11-9.1 affidavit. The trial court denied this motion, finding that the nursing home’s alleged failure “to carry out the instructions of the decedent’s physician . . . does not involve the exercise of professional judgment, but presents a cause of action of simple negligence.” Savannah Convalescent Center subsequently moved for summary judgment. The trial court granted this motion because it found “there was no specific order to restrain Mrs. Davis while in bed on January 13, 1994 when she fell out of bed.” The Davises have appealed from the trial court’s order granting summary judgment on their claims of simple negligence.

“ ‘To prevail at [a motion for] summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case.’ (Emphasis omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Our review is de novo. Bandy v. Mills, 216 Ga. App. 407 (454 SE2d 610) (1995).” Walker v. Virtual Packaging, 229 Ga. App. 124 (493 SE2d 551) (1997).

Viewed in this light, the record shows Elsie Davis entered Savannah Convalescent Center around November 24, 1993, to recuperate from a fall which fractured her hip. She also suffered from Alzheimer’s-type dementia. Dr. Phillip Schwartz, the medical director for the nursing home, testified in his deposition that at the time of her admission, Ms. Davis had an ongoing problem with her balance and “had apparently fallen before, even before her fractured hip.”

At the time of her admission to the nursing home, another physician, Dr. Clary, ordered the nurses to restrain Ms. Davis with a “Posey vest PRN.” On November 30, 1993, Dr. Schwartz changed this order after examining Ms. Davis because he believed Dr. Clary’s restraint order was too nebulous and lacked specificity. Dr. Schwartz testified that “[historically, vest restraints . . . have caused more deaths than good in nursing homes. . . . [P]eople get hung up on those vest restraints and get strangled.” Dr. Schwartz’s written order required the nurses to “D/C [discontinue] vest restraint” and to “Try the least restrictive restraint first and evaluate patient.”

On December 8, 1993, Dr. Schwartz issued the following written order: “Safety Device ordered: velcro grip restraint while OOB [out of bed] to prevent injury.” Dr. Schwartz testified this order was in effect on January 13,1994, the day Ms. Davis was found on the floor beside her bed. According to Dr. Schwartz, however, there was no specific order for Ms. Davis to be restrained while in bed on that date. Dr. Schwartz also testified that the nursing home staff did not violate any of his orders by failing to restrain Ms. Davis while she was in her bed on January 13, 1994.

Raymond Davis, Jr. testified that he visited the nursing home after his mother’s injury and asked a woman sitting at the nurse’s station about his mother. The woman told Davis that his mother was found on the floor by her bed that morning. Davis advised the woman that “it’s in Dr. Schwartz’s orders somewhere that she should be restrained,” and asked how his mother could “have been gotten out of the bed if she had been restrained.” According to Davis, this woman replied, “well, I don’t know” and looked through his mother’s chart. After looking through the chart she told him, “oh, here it is, here it is, where Dr. Schwartz left the order that she should be restrained when in the wheelchair with a strap or in the bed.” Davis acknowledged that he did not know the date of this alleged order.

The Davises attached a document titled “Medication Record” as Exhibit “A” to their brief in opposition to defendant’s summary judgment motion. This document was not certified, and there is no sworn testimony in the record about the origin or creation of this document. It is undisputed, however, that this document was produced by Savannah Convalescent Center in response to a request for production of documents from the Davises.

The medication record lists the patient’s name as “Davis, Elsie,” the physician as “Schwartz, Phillip,” and the facility as “Savannah Convalescent Center.” This pre-printed form includes separate boxes for various orders, days of the week, and the hour. One box states “Charting from 2/01/94 thru 2/28/94.” Another box states “Order Date: 12/8/93 safety device ordered: velcro grip restraint while OOB in W/C & vest restraint while in bed at night time to prevent pt. injury.” The trial court held that although this document could create a triable issue of fact, it was unauthenticated and therefore could not be considered when evaluating the motion for summary judgment.

1. We must first determine whether the medication record can properly be considered when evaluating Savannah Convalescent Center’s summary judgment motion. “A proper foundation must be laid for the introduction of documentary evidence.” (Citations and punctuation omitted.) Hill Aircraft &c. Corp. v. Cintas Corp., 169 Ga. App. 747, 748 (1) (315 SE2d 263) (1984) (physical precedent only). “As a general rule, a writing will not be admitted into evidence unless the offering party tenders proof of the authenticity or genuineness of the writing. [Cit.] There is no presumption of authenticity, and the burden of proof rests upon the proffering party to establish a prima facie case of genuineness. [Cits.] Our rules of evidence provide a wide variety of means by which a party may authenticate a writing.” Martin v. State, 135 Ga. App. 4, 6-7 (3) (217 SE2d 312) (1975). The use of circumstantial evidence is one of these methods. See Gunter v. State, 243 Ga. 651, 657 (4) (256 SE2d 341) (1979) (“The genuineness of the writing . . . may be proved by circumstantial evidence.”). See also McCormick on Evidence, Vol. 2, § 222, p. 44 (4th ed. 1992) (“it is clear that authentication by circumstantial evidence is uniformly recognized as permissible”).

The Davises assert the medication record is properly authenticated because it was produced for them in response to a request for production of documents by Savannah Convalescent Center. This is an issue of first impression in Georgia. Federal courts faced with this issue typically find production of a document by a party, along with other circumstantial evidence, is prima facie proof of authentication, particularly when the party who produced the document never claims it is not authentic or genuine. See, e.g., McQueeney v. Wilmington Trust Co., 779 F2d 916, 929 (3rd Cir. 1985); McConathy v. Dr. Pepper/Seven Up Corp., 131 F3d 558, 562 (5th Cir. 1998); Snyder v. Whittaker Corp., 839 F2d 1085, 1089 (5th Cir. 1988); Denison v. Swaco Geolograph Co., 941 F2d 1416, 1423 (10th Cir. 1991); Fed. Trade Comm. v. Hughes, 710 FSupp. 1520, 1522 (N.D. Tex. 1989).

In an analogous line of cases, Georgia courts hold that while possession, standing alone, cannot authenticate a document, possession, together with other circumstances, may be used to authenticate a document. See State v. Smith, 246 Ga. 129, 130 (269 SE2d 21) (1980); Hull v. State, 265 Ga. 757, 760-761 (6) (462 SE2d 596) (1995), overruled on other grounds, Woods v. State, 269 Ga. 60, 63 (3) (495 SE2d 282) (1998); Martin v. State, supra at 8. The content and appearance of a document are two of the “other circumstances” considered with possession when our courts analyze whether there is sufficient circumstantial evidence of authentication. Id.

In this case, the nursing home admits it produced the medication record for the Davises and does not contend it is not an authentic or genuine record of the nursing home. The nursing home’s written response to the Davises’ request for production of documents states that “[t]he medication sheets on Mrs. Davis during her stay at the Defendant’s facility are attached.” Furthermore, the entries on the document also support a finding that the document is genuine. It lists the patient as Elsie Davis, the facility as Savannah Convalescent Center and the physician as Dr. Schwartz. Dr. Schwartz testified that he was Elsie Davis’ treating physician while she resided in the nursing home. The record also lists the medication Darvocet, and Dr. Schwartz testified that this was a medication prescribed for Ms. Davis while she was in the nursing home. “0112A” is typed in the “Room/Bed” box of the medication record. A nurse employed by Savannah Convalescent Center at the time Ms. Davis resided in the nursing home, Leola McCound, testified that Ms. Davis was moved to room 112-A on January 14, 1994. As the document states “Charting from: 02/01/94 thru: 02/28/94,” the “room/bed” information in the document is consistent with McCound’s testimony. Based on the facts and circumstances of this case and the authority outlined above, we find sufficient circumstantial evidence to establish the authenticity of the medication record. As this record is admissible as a party admission under OCGA § 24-3-31, we will consider it in our de novo analysis of whether the trial court properly granted summary judgment to the nursing home.

Decided October 16, 1998

Calhoun, Sapp & Calhoun, John R. Calhoun, Kenneth A. Calhoun, for appellants.

Brennan & Wasden, Joseph P. Brennan, for appellee.

2. We find the medication record creates a genuine issue of material fact as to whether the nursing home staff was ordered to restrain Ms. Davis while she was in bed on January 13, 1994, and whether they were negligent in failing to do so. We reject the nursing home’s argument that the order reflected in the medication record does not contradict Dr. Schwartz’s testimony that there was no order to restrain Ms. Davis while she was in bed on January 13, 1994. Although the order date in the medication record is December 8, 1993, this record also states “Charting from: 02/01/94 thru: 02/28/94,” and it appears from initials in columns next to the restraint order that this order was carried out in the first three days of February. Thus, an inference can be drawn that the December 8, 1993 order to restrain in bed existed continuously from that date through February 1994. As there is a genuine issue to be tried, the trial court erred when it granted summary judgment to the nursing home.

Judgment reversed.

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

       The Davises did not properly establish production of this document by Savannah Convalescent Center through an affidavit or the filing of original discovery under OCGA § 9-11-29.1. We will, however, consider this issue because Savannah Convalescent Center admitted in its briefs that it did indeed produce this document for the Davises.

       As with possession, a document cannot be authenticated solely by evidence of its contents and appearance. See Smith v. Hatgimisios, 233 Ga. 354, 357 (211 SE2d 306) (1974); Freeman v. Brewster, 93 Ga. 648, 653 (6) (21 SE 165) (1894); Gamarra v. State, 142 Ga. App. 196, 198-199 (4) (235 SE2d 652) (1977).

       The nursing home’s authentication objection to consideration of the medication record is framed in terms of the Davises’ failure to meet their burden of showing authentication.

       Since we have found the medication record creates a genuine issue of material fact, it is not necessary for us to determine whether Raymond Davis, Jr.’s testimony about the statements of the unidentified nurse also creates a genuine issue to be tried.


author: Pope, Presiding Judge. Beasley, Judge,

text:
    A98A0985.
    VANVOORHIS v. THE STATE.
    (507 SE2d 555)
   Pope, Presiding Judge.

Tiffany VanVoorhis was charged with aggravated assault for stabbing her mother with a knife. The case was tried before a judge sitting without a jury. At the bench trial VanVoorhis raised the defense that, under OCGA § 16-3-3, she should be found not guilty because she stabbed her mother due to a delusional compulsion. The judge rejected VanVoorhis’ delusional compulsion defense and found her guilty of aggravated assault but mentally ill. VanVoorhis appeals, arguing that the verdict is not supported by sufficient evidence. VanVoorhis’ argument is without merit.

“In reviewing a verdict of guilty but mentally ill in a case where the appellant relies on OCGA § 16-3-3, the appellate court determines whether, construing the evidence in favor of the verdict, a rational trier of fact could have concluded that the appellant failed to show by a preponderance of the evidence that [her] will was overmastered by a delusional compulsion which caused appellant to commit the act or acts that led to indictment, trial and conviction.” (Citations and punctuation omitted.) Martin v. State, 196 Ga. App. 869, 870 (397 SE2d 301) (1990). Construing the evidence in the instant case in favor of the verdict, we find that a rational trier of fact could have concluded that VanVoorhis failed to show by a preponderance of the evidence that her will was overmastered by a delusional compulsion which caused her to stab hér mother.

“A finding of insanity based upon OCGA § 16-3-3 requires proof that (1) the accused acted under a delusional compulsion; (2) the criminal act was connected with the delusion; and (3) the delusion related to a fact which, if true, would have justified the act. [Cit.]” Appling v. State, 222 Ga. App. 327, 329 (3) (474 SE2d 237) (1996). In the current case, there is conflicting evidence as to exactly what delusion, if any, VanVoorhis had when she stabbed her mother. A psychiatrist who evaluated VanVoorhis eight months after the assault testified that VanVoorhis told him that at the time of the assault she had believed her mother was going to attack her with a knife. The arresting officer testified, and wrote in his report of the incident, that VanVoorhis told him that her mother’s head was not right and that her mother intimidated her. Another officer testified that VanVoorhis never claimed that she had acted in self-defense or had been in immediate harm from her mother, but instead said that if she had continued staying in her mother’s house her mother would have killed her and that her mother was using thoughts to scream obscenities at her.

The trial judge was not persuaded by the psychiatrist’s testimony regarding what VanVoorhis said about her delusions eight months after the attack. Instead, the judge accepted the officers’ testimony about VanVoorhis’ statements made on the day of the incident. Based on the officers’ testimony, the judge found that at the time of the assault VanVoorhis had delusions that her mother might eventually kill her and that her mother was shouting obscenities with her mind. “In a bench trial, the judge sits as the trier of fact who determines the credibility of the witnesses and who may accept or reject any part of a witness’ testimony, even in the absence of contradictory testimony. . . . Furthermore, because the court in this case sat as the factfinder, we will not set aside its factual findings unless they are clearly erroneous. A trial court’s factual findings are not clearly erroneous if there is any evidence to support them.” (Citations omitted.) Bettis v. State of Ga., 228 Ga. App. 120, 121 (491 SE2d 155) (1997). Because the factual findings by the court regarding VanVoorhis’ delusions are supported by some evidence, they must be upheld.

Based on those findings, the trial court correctly ruled that VanVoorhis failed to prove the justification element of her delusional compulsion defense. See Dutton v. State, 225 Ga. App. 67 (483 SE2d 305) (1997). VanVoorhis had no delusion of an immediate physical threat from her mother; rather, she believed that her mother might attack her in the future and that her mother was using thoughts to shout obscenities. Such delusions are not facts that, if true, would justify the knife attack. Compare Stevens v. State, 256 Ga. 440, 442 (350 SE2d 21) (1986); see Appling, 222 Ga. App. at 329. Accordingly, the trial court did not err in ruling that VanVoorhis failed to prove that a delusional compulsion caused her to attack her mother.

Having reviewed the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found VanVoorhis guilty of aggravated assault, but mentally ill. See Lawrence v. State, 265 Ga. 310, 312 (1) (454 SE2d 446) (1995); Rogers v. State, 199 Ga. App. 545, 546 (405 SE2d 541) (1991).

Judgment affirmed.

Beasley and Ruffin, JJ., concur specially.

Beasley, Judge,

concurring specially.

I concur with some reluctance, just as the trial judge reached a verdict with reservation. The court found that “the defendant is not relieved from responsibility despite the fact that she’s obviously severely mentally ill. So my verdict [sic] is that she’s guilty but mentally ill.” Such a finding is authorized, if evidentially warranted, by OCGA § 17-7-131 (b) (1) (D) and (2) and (c) (2). The court later explained: “If our law in Georgia were different on the subject of mental illness, then my verdict would have been different.” The court accepted as fact that the defendant suffered from paranoid schizophrenia, that she had an “obvious and severe mental illness” based on “overwhelming” evidence “that the defendant is severely mentally ill, or in laymen’s terms, she is insane.”

The court examined the evidence under both OCGA § 16-3-2 (the “right and wrong” test) and § 16-3-3, the defense which reheves a defendant of criminal responsibility for an act when “a delusional compulsion as to such act. . . overmastered [her] will to resist committing the crime.” An application of the mental capacity test was rejected, and the focus was on the delusional compulsion defense relied on by VanVoorhis.

The court properly acknowledged the three factors identified by the majority opinion as stated in Appling v. State, and considered a fourth relevant factor, that the defendant did not voluntarily and intentionally induce the delusion. Although the judge found three of the factors present as a matter of fact, he was not persuaded that the preponderance of evidence proved that “the delusion was as to a fact which, if true, would have justified the act.”

It is very close, particularly in comparison with the evidence in Stevens v. State. The court found that VanVoorhis had a delusion “that her mother might eventually or at some time kill her if she continued to live under that roof and she also had the delusion that her mom was shouting obscenities at her with her mind.”

In applying the law, the court reasoned that neither delusion would justify the aggravated assault with knives. The judge explained: “The obscenities obviously did not justify the use of deadly force and apparently there was no delusion of any immediate physical threat to her from her mother, and only a delusion that her mother was going to immediately use deadly force would have . . . excused [VanVoorhis’] use of deadly force in [those] circumstances.”

Considering the evidence, the court could have found that the delusion of the current shouting of obscenities indicated to defendant that her chronic fear of being killed by her mother was soon to be justified so that a belief arose that it became “necessary to defend [herself] . . . against [her mother’s] imminent use of unlawful force” against her. Imminence could be supplied by combining the two delusions and considering that defendant thought her mother would kill her because she (the daughter) lived there as in fact she did currently live with her in the mobile home. As the psychiatrist testified, “[s]he was in a confused psychotic state and she was having trouble thinking clearly. I think she was acting sort of in self-defense, a preemptive strike, if you will.” The testimony of several witnesses who were present just after the attack, as well as the victim, indicated without any contradictory evidence that she was in a psychotic state at the time and she told the officer that her mother would have killed her if she had not attacked first.

We are compelled to affirm the judgment of conviction because there is sufficient evidence to support it, under the standard of Jackson v. Virginia. It is factually in line with Nelson v. State and Salter v. State in that both of those cases involve insanity defenses of defendants who suffered from paranoid schizophrenia with action-prompting delusions. In both of them the defense was asserted and measured under the right-wrong test of OCGA § 16-3-2 alone; delusional compulsion was not offered as a defense. Predictably, both Salter and Nelson lost on the right-wrong test. The application of the delusional compulsion test to the evidence favoring the finding in VanVoorhis’ case does not require a different result from the commonly shared ultimate finding of guilty but mentally ill.

In addition, we are compelled to apply the delusional compulsion test recognized as the law in Georgia over 150 years ago as it is currently construed under the 1968 statute via the four-part test despite advances in psychiatry.

In reaching its ultimate finding, the judge was aware of the consequences of finding VanVoorhis not guilty by reason of insanity versus guilty but mentally ill. OCGA § 17-7-131 (d) requires detention by the Department of Human Resources for possible commitment to a mental health facility of persons found not guilty by reason of insanity; whereas OCGA § 17-7-131 (g) authorizes imprisonment of a person found guilty but mentally ill. But the trial court did not take consequences into account in reaching its decision as to guilt or innocence, which would have been error just as it would be if a jury did so. See Lewis v. State, 158 Ga. App. 575 (281 SE2d 318) (1981). See Moore v. State, 228 Ga. 662, 665 (5) (187 SE2d 277) (1972).

The court did consider probation with mental health treatment but rejected it in favor of imprisonment, in express deference to its duty as articulated in the Georgia Bill of Rights. The court stated: “As to what sentence should be imposed, my first duty is to protect the community and the community includes the defendant at the bar who could harm herself or what — in this case — what if she’d stabbed her mother through the heart and the mother was dead? That could happen next time. It could have happened this time and the sentence is twenty years to serve.”

Decided October 16, 1998.

Darden & Moyers, Richard M. Darden, for appellant.

Spencer Lawton, Jr., District Attorney, Kimberly Rowden, Assistant District Attorney, for appellee.

Because there was no legal error as defendant enumerates, I concur.

I am authorized to state that Judge Ruffin joins in this special concurrence.

       Ga. Const., Art. I, Sec. I, Par. II: “Protection to person and property is the paramount duty of government and shall be impartial and complete.”

        Salter v. State, 257 Ga. 88, 90 (3) (356 SE2d 196) (1987), describes the application of this category.

       222 Ga. App. 327, 329 (3) (474 SE2d 237) (1996).

       See Bailey v. State, 249 Ga. 535, 537 (1) (291 SE2d 704) (1982); Choice v. State, 31 Ga. 424 (1860).

        Stevens v. State, 256 Ga. 440, 442 (350 SE2d 21) (1996).

       Id. at 440.

       OCGA § 16-3-21 (a) (use of force in defense of self). The trial judge recognized this.

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

       254 Ga. 611 (1) (331 SE2d 554) (1985).

       257 Ga. 88, 89 (1) (356 SE2d 196) (1987).

        Roberts v. State, 3 Ga. 310 (1847); Flanagan v. State, 103 Ga. 619, hn. 2 (30 SE 550) (1898) (sufficient evidence of delusional compulsion under three-part test. “Will is as necessary an element of intent as are reason and judgment.” Id. at 626 (2)). See also Mars v. State, 163 Ga. 43, 52-53, 60 (4) (135 SE 410) (1926); Taylor v. State, 105 Ga. 746, hn. 1 (31 SE 764) (1898).

       Ga. L. 1968, pp. 1249, 1270, § 1.


text:
    A98A0994.
    JOHNSON v. COOPER.
    (507 SE2d 559)
   Ruffin, Judge.

Leslie Johnson sued Phillip Cooper for injuries she allegedly sustained in an automobile collision. Before trial, Cooper stipulated to his negligence, leaving only the issues of proximate cause and damages for trial. After a trial on these issues, the jury returned a verdict in favor of the defendant. Johnson appeals, asserting that the verdict was not supported by the evidence and that the trial court erred in instructing the jury on speculative damages. For reasons which follow, we affirm.

1. “Where a jury returns a verdict and it has the approval of the trial judge, the same must be affirmed on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence.” Taylor v. Ga. Power Co., 136 Ga. App. 412, 413 (1) (221 SE2d 222) (1975). Moreover, “the evidence is to be construed in the light most favorable to the prevailing party and every presumption and inference is in favor of sustaining the verdict.” (Punctuation omitted.) Kent v. Peters, 211 Ga. App. 698 (1) (440 SE2d 87) (1994).

Viewed in this light, the evidence shows that Johnson and Cooper were involved in an automobile collision on August 19, 1995. Johnson initially felt “a little sore, [a] little achy, mostly in [her] back and [her] neck for the first few days,” and five days later she went to a chiropractor for treatment for neck and back pain. She saw the chiropractor approximately ten times.

On September 14, 1995, Johnson went to Dr. Mark Harris, a neurologist, complaining of headaches, neck and back pain, and a tingling and numbness in her left arm. Dr. Harris made no objective findings as to the source of Johnson’s complaints of headaches and numbness in her arm; however, he found limited lateral movement of her neck, some spasm of the muscles that run up the middle and lower back, and a slight decrease in her left knee deep tendon reflex. Based on these findings, Dr. Harris ordered an MRI. Dr. Harris subsequently diagnosed Johnson as having a bulging disk based on his review of the MRI film taken on September 16, 1995.

On September 29, 1995, Johnson went to an emergency room where she again complained of headaches and neck and back pain. That same day, Johnson returned to Dr. Harris with similar complaints of neck and back pain and numbness in her left arm. Dr. Harris recommended that she continue her anti-inflammatory medication and gave her a referral for physical therapy.

Johnson did not return to Dr. Harris until five months later, on February 27, 1996, at which time she complained of spasms in her left shoulder. On her final visit to Dr. Harris on March 14, 1996, Johnson complained of continuing low back, right arm, and right shoulder pain. Johnson received no further medical treatment. Testifying on Johnson’s behalf, Dr. Harris stated that her injuries were consistent with the type of force involved in the collision, but conceded that the bulging disk he observed in the MRI film could have been a preexisting condition.

Johnson asserts that the evidence she presented at trial demanded a verdict in her favor because she presented positive and unimpeached testimony concerning her injuries. We disagree. The issue here is not whether Johnson was in fact injured, but whether she was injured by the collision. See Davis v. McCray, 127 Ga. App. 281, 282 (193 SE2d 200) (1972); Kent, supra; Hansen v. White, 190 Ga. App. 596 (379 SE2d 536) (1989). We have previously held that a jury may find in favor of a defendant even when the issue of liability is not before the jury and the plaintiff presents evidence of an injury. See Davis, supra at 282.

Johnson should not assume that the issue of proximate cause is to be decided in her favor simply because the tort elements of duty and breach were established by Cooper’s pretrial stipulation. See Harrison v. Feather, 211 Ga. App. 468 (439 SE2d 706) (1993). For instance, in Kent, supra, the jury returned a verdict in favor of the defendant; thus, they “necessarily concluded either that [the defendant] was not negligent or, if she was, that [the plaintiff] did not sustain an injury as a result of her negligence.” Id. at 698. In Kent, “some time intervened before [the plaintiff] consulted a physician. Approximately one month passed before she went to the hospital emergency room, two to three months before she consulted an orthopedist, and almost three years before she consulted a neurological surgeon.” Id. There was testimony from the plaintiffs treating physicians that “their diagnoses depended upon [her] subjective complaints of pain, that she ‘had a normal examination,’ with no objective signs of a neurological problem, and that there were other possible causes of her injuries.” Id. Further, there was evidence the plaintiff “gave incomplete or inconsistent evidence regarding, for example, her statements at the scene of the accident and her description of her symptoms.” Id.

Like the plaintiff in Kent, Johnson waited approximately one month before seeing Dr. Harris. Although Johnson testified that she saw a chiropractor before this visit, she did not provide any records of those visits, nor did she have the chiropractor testify at trial. According to Dr. Harris, many of Johnson’s complaints of pain could not be confirmed by any objective tests, except for limited movement in her neck, a spasm in the muscles that run down the middle and lower back, and a slight decrease in her left knee deep tendon reflex. These objective symptoms led Dr. Harris to order an MRI, which revealed a bulging disk. Although Dr. Harris testified that the accident was consistent with the type of force that could cause Johnson’s problems, he did not state to a reasonable degree of medical certainty that the accident in fact caused her injuries and admitted that her bulging disk could have predated the accident.

Following her initial visits to Dr. Harris in the month after the accident, Johnson did not return to the doctor until five months later. During her final visit to Dr. Harris, Johnson complained of right arm and shoulder pain, when previously she consistently complained of left arm and shoulder pain. Thereafter, Johnson sought no medical treatment whatsoever. Whether Johnson’s complaint of right arm pain was an inconsistency warranting the jury to find her credibility impeached or simply a late manifestation of symptoms relating to the collision was for the jury to decide. See Davis, supra.

The evidence clearly established that Johnson had a bulging disk and various manifestations of pain. However, as in Davis, the jury could have concluded that the force of the collision was unlikely to have caused Johnson’s disk injury. The jury, consistent with Dr. Harris’ testimony, could have thus concluded that the injury was preexisting and that her pain manifestations were probably the result of this preexisting condition. If so, the jury could have concluded that the plaintiff did not carry her burden of proving that the collision was the proximate cause of her injuries. See Hambrick v. Makuch, 228 Ga. App. 1, 2 (2) (491 SE2d 71) (1997). Moreover, the medical testimony from Johnson’s own doctor and the intervening time between her medical treatments also support the jury’s verdict in favor of Cooper. See Kent, supra; Davis, supra. Ultimately, the jury was in the best position to evaluate the credibility of Johnson and that of her witnesses. See Hansen, supra; Taylor, supra. Even though the plaintiff proved an injury, the jury was authorized to find that the injury was unrelated to the collision. See also Purvis v. Toole, 207 Ga. App. 189 (427 SE2d 565) (1993); Hansen, supra.

Contrary to Johnson’s contention, Cochran v. Lynch, 126 Ga. App. 866 (192 SE2d 165) (1972) does not require a different result. In Cochran, we stated that “positive and direct testimony of an unimpeached witness cannot be arbitrarily rejected by a jury.” Id. at 867. Only the plaintiff and her physician testified in Cochran, and there was no contradictory testimony or circumstances to refute the evidence. Consequently, “the evidence there demanded a finding that the plaintiff was injured to some extent; if she was injured the causal chain was unbroken.” Davis, supra at 282. As Johnson concedes, however, Cochran has been heavily distinguished over time. See, e.g., Hansen, supra (plaintiff’s credibility impeached); Purvis, supra (opposing medical testimony and lapse of time between treatments); Davis, supra (plaintiff waited five months before seeking medical treatment).

The jury in the instant case cannot be said to have rejected Johnson’s testimony, which went to the existence of any injury, not to causation. Even if they believed she had been injured, they could have found that she did not carry her burden of proof regarding causation. Johnson’s own doctor testified to a possible preexisting medical condition, and the jury could have concluded that the force of the collision was insufficient to cause her injuries. Regardless of whether we might find it unlikely that such injuries would coincidentally manifest themselves shortly after the accident, that is a matter for the jury to decide, and it is not within our province to second-guess their factual findings. See Taylor, supra; Hansen, supra.

2. Johnson also challenges the trial court’s charge to the jury regarding speculative injuries and damages. According to Johnson, the charge was an incomplete statement of the law and confusing to the jury. We disagree.

The trial court gave the following charge to the jury: “If you believe from the evidence adduced that the cause of any injury or medical condition which may have been suffered by the plaintiff cannot be determined with certainty but that it is a matter of speculation or conjecture, then in that event you would not be authorized to find a verdict against the defendant in any amount for such injury or medical condition. And in such instance it would be your duty to return a verdict in favor of the defendant as to such injury or medical condition, it being absolutely necessary for the plaintiff in order to recover damages from the defendant to show by a legal preponderance of the evidence that the particular loss complained of was proximately caused by the negligence of the defendant. In this connection I further instruct you that the law does not permit you to speculate or to guess about the existence of any injury claimed.” Johnson contends this instruction is incomplete because it omitted the following language: “The plaintiff is not required to prove all of her contentions of negligence. But if you find that she has proved one of these acts of negligence and that such act amounted to a failure to exercise ordinary care and diligence, and was the proximate cause of the plaintiff’s alleged injury and damages, then the plaintiff would be entitled to recover.”

We note at the outset that Johnson did not propose this additional language when she objected to the charge. However, she argues that, without such language, the charge given was an incomplete statement of the law and not adjusted to the facts of the case. When determining whether a jury instruction is complete, we look to the charge as a whole to determine its propriety. Royal v. Davis Hauling Co., 164 Ga. App. 409, 410 (297 SE2d 333) (1982). Here, the charge on speculative damages was based upon the charge given in Royal, supra. Johnson properly notes that the language she insists would complete the charge at issue was the same language in Royal that led us to find the charge as a whole complete. Id. at 410-411. However, the essence of the language Johnson proposes regarding her burden of proof and proximate causation is found elsewhere in the court’s charge. Specifically, the trial judge charged the jury on Johnson’s burden of proof and the necessity that Cooper’s negligence be the proximate cause of Johnson’s injuries. Although the language suggested by Johnson would have been “elaborative,” we cannot say that the charge as given, considered as a whole, was incorrect or misleading. Id. at 411.

Johnson’s complaint that the jury’s questions during their deliberations showed that they were confused is without merit. During deliberations the jury posed the following questions to the court: (1) “Do we have to find if the car accident caused the initial injury to the disk lumbar 5?” and (2) “In order to find for the plaintiff do we have to decide if the car accident is the sole cause of the injuries such as the bulging disk?” The trial court answered these questions for the jurors, and Johnson did not object to the recharges. Contrary to Johnson’s contentions, the jurors’ questions illustrate their understanding that there must be a causal connection between the injury alleged and the admitted breach of duty, rather than confusion over the trial court’s charge regarding any speculative damages. See Smoky, Inc. v. McCray, 196 Ga. App. 650, 656 (5) (396 SE2d 794) (1990) (in reviewing whether jury instructions as a whole adequately set forth the law applicable to the facts of a given case, we must view the charges from the perspective of the average juror, since “it is the jury, not the trial court or the appellate courts, that applies the law”).

Decided October 16, 1998.

Nix & Commander, Keenan R. S. Nix, Scott C. Commander, Christopher P. Carpenter, for appellant.

Clifton Lee & Associates, Shoran N. Reid, for appellee.

Taken as a whole, and given the evidence as outlined in Division 1, the trial court’s charge to the jury was an accurate statement of the law. See Royal, supra.

Judgment affirmed.

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


text:
    A98A1136.
    A98A1137.
    A98A1138.
    HINDMAN v. THE STATE. FORTNER v. THE STATE. BURNETT v. THE STATE.
    (507 SE2d 862)
   Ruffin, Judge.

James Hindman, Donald Ray Burnett, and Marshall Eugene Fortner were each convicted of armed robbery, eight counts of aggravated assault, theft by taking, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon. All three defendants received life sentences on the armed robbery convictions pursuant to OCGA § 17-10-7 (b) (2), the recidivist statute. In Case No. A98A1136, Hindman appeals, asserting that (1) the evidence was insufficient to convict him on the armed robbery, theft by taking, aggravated assault, and possession of a firearm counts, (2) the trial court improperly admitted evidence of his prior criminal convictions, (3) a fatal variance existed between the armed robbery indictment and the evidence adduced at trial, and (4) OCGA § 17-10-7 (b) (2) is unconstitutional. In Case No. A98A1138, Burnett raises the same issues as Hindman. In Case No. A98A1137, Fortner raises the same issues, except that he does not challenge the sufficiency of the evidence as to the theft by taking, armed robbery, and aggravated assault convictions. Fortner also does not challenge the conviction of possession of a firearm by a convicted felon on the grounds that there was no evidence he had a firearm. For reasons which follow, we affirm the convictions and sentences as to all three defendants.

“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; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)]. Conflicts in the testimony of the witnesses, including the State’s witnesses, [are] a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” (Punctuation omitted.) Howard v. State, 227 Ga. App. 5, 8 (6) (a) (488 SE2d 489) (1997).

Viewed in this light, the evidence reveals that Pam Garland was working as the branch manager of the Cleveland Road Wachovia Bank in Whitfield County, Georgia, at 2:30 p.m. on April 24, 1996, when two masked men robbed the bank. Garland said one of the robbers was wearing camouflage coveralls and a hat in addition to the mask. This man came into her office, pointed a handgun at her, and ordered her to go to the lobby and sit on the floor. Garland testified that this robber pointed a gun at another Wachovia employee, Joey Parrott, placed his foot on Parrott’s back, and threatened to kill him. She said this robber stayed in the lobby area of the bank building while the other robber jumped over a teller window.

Garland testified that the robber who jumped over the teller window was wearing coveralls and was armed with a gun. He had a dark-colored beard with some gray hair in it that showed underneath his mask. This robber demanded money from the bank’s head teller, Carol Gribble, and placed approximately $29,825 in a bank bag with the bank’s name and address imprinted on it. One of the $50 bills that was placed in the bag was a “bait bill,” meaning that the bank had written down the bill’s serial number for comparison in the event of a robbery. Garland testified that the robbers took the bank bag full of money and left through the bank’s entrance. After the robbers left, Garland heard gunfire and saw that a man had been shot and was lying on the pavement outside the bank.

Carol Gribble testified that the two robbers had come into the bank yelling. She testified that the robber who had jumped over the teller window put his arm around her neck, demanded money, and placed a small handgun behind her head. She noted that the robbers took the $50 “bait bill,” along with the bank bag which she identified in court. Joey Parrott testified that the robber who remained in the lobby was wearing a mask, coveralls and brown leather shoes, and that this robber pointed a gun at him.

Linda Mullinax, another bank employee, testified that she was at a teller station when the armed, masked men came into the bank. She said the man who jumped behind the teller window saw her lying on the ground, walked over to her and pointed his gun in her face. She noted that he was wearing what looked like a mechanic’s suit.

Barbara Turner, a customer of the bank, arrived while the robbery was taking place. She testified that she parked next to a red pickup truck that had backed into a parking space. She said the driver of the truck wore a tan hat pulled down over his forehead. As she walked into the bank lobby, a man with a gun grabbed her purse and told her to get on the floor and not move or he would kill her.

Rachel Weeks, another bank customer, also arrived while the robbery was occurring. As she walked toward the bank, Weeks noticed a red truck parked in the parking lot adjacent to the bank. Weeks testified that the man in the truck tried to cover up his face. As she walked into the bank, a masked man pointed a gun at her and ordered her into the bank, where she lay on the floor.

Randall King, an enforcement officer with the Department of Transportation, arrived outside the bank to use the automatic teller machine just as the robbers were exiting the bank. He testified that one of the robbers was wearing a dark mask, dark shirt and dark pants. He also recalled that one of the men was carrying a small bag. He exchanged gunfire with the robbers and was shot in the right thigh.

Mark Polow was in the vicinity of the bank at the time it was robbed. While he was in his car, he heard gunshots and saw one man running out of the bank wearing a hat, a mask, and coveralls. The man was shooting at an officer. He then saw another man wearing coveralls and a mask come out of the bank shooting. Both men ran and got into a truck with a waiting driver. One of the men fired a shot at Polow. Polow gave police the truck’s tag number, 19779.

Wilburn Dycus, a police officer with the Cohutta Police Department who had been dispatched to the scene, testified that he saw two men exit the bank and start shooting at Kang, the DOT enforcement officer. Dycus noted that one of the men was wearing camouflage coveralls, a mask, and a hat. This man lost the hat outside of the bank, and Dycus identified the hat at trial as the one the man was wearing.

Lieutenant Larry Bunch of the Whitfield County Sheriff’s Department testified that soon after the robbery, he received a radio transmission to look out for an older model, burgundy pickup truck containing three men who had just committed a robbery. As he was driving, he noticed a truck matching the description carrying three men traveling behind him. Bunch pulled over and then gave chase to the truck. The men drove to the end of a dead-end road, at which time they jumped out of the truck and started running through a field. Bunch testified that he never lost sight of the truck while giving chase. As the men exited the truck, he noticed that one was wearing camouflage coveralls while the other two were wearing blue coveralls and hats. The men ran into some woods in the direction of a nearby lake. The man wearing camouflage coveralls got caught in some barbed wire, allowing Bunch to apprehend him. Bunch testified that, while he was struggling to subdue this man, the man dropped the bank bag. Bunch identified this man at trial as Fortner. Pam Garland identified the coveralls Fortner was wearing when he was apprehended as those worn by the robber who had pointed the gun at her and Joey Parrott. Bunch testified that, after he apprehended Fortner, the other two men continued to run.

Lieutenant Wayne Willard of the Whitfield County Sheriff’s Department heard Bunch’s radio transmissions that he was chasing the pickup truck and that the truck stopped at the dead-end street near the lake. Willard further heard Bunch state that two of the men were running toward the lake near where he was located. Willard went down to the lake and saw two men coming out of a wooded area. He yelled to them, but they jumped into the lake and began swimming away from him. Willard testified that, after firing a warning shot, he jumped into the lake and swam after them. On the other side of the lake, Willard apprehended one of the men, who had gray hair and a gray beard and was wéaring coveralls. At trial, Willard identified Hindman as the man he apprehended at the lake. Willard testified that the other man was wearing a black t-shirt and blue jeans.

A Whitfield County deputy sheriff testified that he took custody of Hindman from Willard. This deputy said that Hindman was wearing blue coveralls, and that a Winchester Luger nine-millimeter bullet was discovered in his pocket. At trial, Pam Garland, the bank branch manager, was shown the blue coveralls Hindman was wearing when he was apprehended and identified them as the coveralls worn by the robber who had jumped over the teller window with a gun.

Danny Headrick, another officer with the Whitfield County Sheriff’s Department, testified that as he was walking along the lake, he heard a man walking through the bushes in some mud and water. He apprehended this man, whom he identified in court as Burnett, and stated that Burnett was wearing blue jeans and a black t-shirt and was dripping wet. When he was apprehended, Burnett said, “Okay, you’ve got me.” Willard was shown a photograph of Burnett taken after he was caught and identified him as the man he had been chasing along with Hindman. Burnett’s appearance had changed between the date of his arrest, when he had facial hair, and the date of trial, when he was clean-shaven.

An agent with the Federal Bureau of Investigation arrived at the scene of the defendants’ capture and took possession of the bank bag and money. He testified that Wachovia’s “bait bill” was found in the bank bag. Carol Gribble identified the bank bag at trial as the one that was stolen.

An agent with the Georgia Bureau of Investigation testified that Winchester Luger nine-millimeter shell casings were found outside the front entrance of the bank and in the bed of the pickup truck.

Perry Sisson testified that his 1965 Ford F110 red pickup truck, with license plate 19779, had been stolen on the day of the robbery. Sisson identified at trial the truck used in the robbery as his truck.

After the jury returned verdicts against all three defendants on the charges of armed robbery, aggravated assault, theft by taking, and possession of a firearm during the commission of a felony, defendants waived their right to jury trial on the charges of possession of a firearm by a convicted felon. The State, then introduced evidence that each of the defendants had been convicted of previous felonies. The trial court convicted each defendant of the firearms charges and later adjudicated each defendant as a habitual felon pursuant to OCGA § 17-10-7.

1. The above evidence was clearly sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that Hindman and Burnett were guilty of the crimes of armed robbery, theft by taking, and aggravated assault. See Howard, supra; Jackson v. Virginia, supra. Although defendants contend there was no evidence linking them to the crimes, there was overwhelming circumstantial evidence of such linkage. Hindman and Burnett were both apprehended after jumping into a lake to escape from police, in an area where the robbers were seen to have fled after exiting from the stolen getaway truck. With respect to Hindman, the coveralls he was wearing when he was apprehended were identified as those worn by one of the robbers. Spent shell casings matching the type of bullets fired during the robbery were found in the bed of the truck, and a matching bullet was found in Hindman’s pocket. Accordingly, even apart from the circumstances surrounding his capture, there was strong evidence directly linking Hindman to the robbery.

Similarly, there was strong evidence establishing that Burnett was the third individual involved in the robbery. After the getaway vehicle was stopped, three men were seen exiting the vehicle and running from the police. When Fortner was apprehended, Hindman and the other individual continued to flee together. A short while later, Hindman and another man were spotted running together by Lieutenant Willard. The two men fled from Willard and jumped into a lake, even though Willard fired a warning shot in their direction. Upon reaching the opposite side of the lake, Hindman was apprehended by Willard, and Burnett, dripping wet, was apprehended by another officer. When he was caught, Burnett said, “Okay, you’ve got me.” Willard identified Burnett as the individual he had been chasing along with Hindman. Accordingly, there was strong evidence that Burnett was one of the three men in the getaway vehicle. Because the coveralls worn by Hindman and Fortner were identified as those of the two gunmen, the jury was authorized to conclude that Burnett was the driver of the stolen getaway vehicle and thus a party to the crimes charged. See Bell v. State, 156 Ga. App. 190 (274 SE2d 153) (1980) (“The driver of a getaway vehicle who waits in the car while another commits a crime, starts the motor at the latter’s approach, and drives precipitously away, speeding, running off the road to avoid obstacles, and failing to observe stop signs or calls to stop, may in the absence of convincing evidence to the contrary be found guilty as a party to the felonious conduct of his comrade.”).

2. Burnett and Hindman assert that there was insufficient evidence to support their convictions of possession of a firearm, arguing that there was no evidence showing they were in possession of a firearm during the robbery. This contention is without merit. With respect to Hindman, Pam Garland, the branch manager of the bank, identified the clothing Hindman was wearing when he was arrested as being the clothing worn by the individual who jumped over the teller counter and threatened Carol Gribble with a gun. Accordingly, there was evidence from which the jury could have concluded that Hindman was in possession of a firearm during the robbery.

With respect to Burnett, although there may not have been evidence that he was in physical possession of a firearm during the robbery and its aftermath, the evidence authorized a finding that he was a party to the crime and that he and his co-defendants were joint conspirators. See Coursey v. State, 196 Ga. App. 135-136 (1) (395 SE2d 574) (1990); Perkins v. State, 194 Ga. App. 189, 190 (1) (390 SE2d 273) (1990). “The act of either was the act of the other and each is as fully responsible for the act of the other as if he had committed that act.” Coursey, supra at 136. Accordingly, “[Burnett] may properly be convicted of possession of a firearm ... on the ground that he was a party or aider or abettor to the offense.” Perkins, supra. See also Hamilton v. State, 179 Ga. App. 434 (346 SE2d 881) (1986).

3. Each of the defendants contends there was a fatal variance between the indictment charging him with armed robbery and the evidence adduced at trial. In particular, defendants argue that the indictment failed to specify which Wachovia Bank in Whitfield County, Georgia, they allegedly robbed. This argument is without merit.

Defendants rely on State v. Green, 135 Ga. App. 622 (218 SE2d 456) (1975), in which we held that an indictment for burglary must specify the location of the building in which the crime was committed. Unlike burglary, however, the particular location of the robbery is not an element of the offense of armed robbery. See OCGA § 16-8-41 (a) (“A person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon.”). Accordingly, it is not necessary that the indictment specify the exact location in which the crime occurred, so long as it is alleged that the crime occurred within the county. See, e.g., State v. Ramos, 145 Ga. App. 301 (243 SE2d 693) (1978) (limiting Green to its facts and refusing to extend the holding therein to cases of theft by taking).

4. Each of the defendants asserts that the State’s exhibits establishing his prior criminal convictions were improperly admitted at trial because they were not correctly authenticated pursuant to OCGA § 24-7-24. Because the exhibits were improperly admitted, defendants contend that their convictions for possession of a firearm by a convicted felon, as well as their life sentences pursuant to the recidivist statute, should be reversed. These contentions, too, are without merit.

With respect to State’s Exhibits 116, 117, and 118, showing Hindman’s prior convictions, the record does not reflect that Hind-man’s attorney objected to these documents on the grounds asserted in his brief. Accordingly, Hindman has waived the right to raise such objections on appeal. See Hawkins v. State, 230 Ga. App. 627, 629 (2) (497 SE2d 386) (1998); Campbell v. State, 228 Ga. App. 258, 263 (3) (b) (491 SE2d 477) (1997).

With respect to Burnett, the record reflects that Burnett’s counsel did not object to State’s Exhibits 119, 121, or 123 on the grounds of lack of authentication. These three exhibits related to prior convictions for armed robbery, habitual criminal, assault with intent to commit armed robbery, and felonious escape. The trial court expressly found that Burnett had been convicted of these felony offenses. As these prior convictions were sufficient to support Burnett’s conviction for possession of a firearm by a convicted felon, his adjudication as a habitual felon, and his life sentence under the recidivist statute, it is unnecessary to consider whether State’s Exhibits 120 and 122, relating to other convictions, were properly admitted. See OCGA § 17-10-7.

With respect to Fortner, the State introduced State’s Exhibit 114, showing a prior conviction for armed robbery, and State’s Exhibit 115, showing a conviction for attempt to commit larceny. The record clearly reflects that Exhibit 114 was properly authenticated. Although Fortner argues on appeal that the certification was improperly signed by a deputy clerk on behalf of the clerk of court, he did not urge this specific ground below and therefore cannot raise it here. See Hawkins, supra. The trial court expressly found that Fortner had been convicted of the prior armed robbery. As this prior conviction was sufficient to support Fortner’s conviction for possession of a firearm by a convicted felon, his adjudication as a habitual felon, and his life sentence under the recidivist statute, it is unnecessary to consider whether State’s Exhibit 115 was properly admitted.

Decided October 16, 1998

5. In several enumerations, defendants assert that OCGA § 17-10-7 (b) is unconstitutional because (1) it constitutes cruel and unusual punishment, (2) it violates their rights to due process under the Georgia Constitution, and (3) it requires retroactive punishment in violation of the ex post facto clause of the Georgia Constitution.

Defendants originally filed their appeals with the Supreme Court of Georgia. The Supreme Court concluded that “[w]hile the constitutional challenges that appellants seek to raise on appeal were raised before the trial court, the trial court neither explicitly nor implicitly ruled upon those challenges. Accordingly, those constitutional challenges have not been preserved on appeal.” The Supreme Court thus transferred the appeals to this Court.

Although it is possible to argue that the trial court implicitly denied defendants’ constitutional arguments, “we are bound to conclude under these circumstances that the transfer of the case by the Supreme Court to this court is a final determination that no constitutional question was in fact properly raised.” (Punctuation omitted.) Schmidt v. Feldman, 230 Ga. App. 500, 502 (2) (497 SE2d 23) (1998). See also Parker v. State, 220 Ga. App. 303, 310 (7) (469 SE2d 410) (1996) (“Since these constitutional claims were not timely raised and ruled upon by the trial court, they conferred no jurisdiction upon the Supreme Court and present nothing for appellate review in this Court.”).

Even if these constitutional claims had been properly preserved for appeal, these issues have previously been decided adversely to defendants. See Ortiz v. State, 266 Ga. 752, 753 (2) (470 SE2d 874) (1996) (OCGA § 17-10-7 (b) (2) does not violate prohibition against cruel and unusual punishment or deprive defendants of due process); Campbell v. State, 268 Ga. 44, 45 (1) (485 SE2d 185) (1997) (OCGA § 17-10-7 (b) does not impose unconstitutionally excessive punishment); Johnson v. State, 229 Ga. App. 400 (493 SE2d 926) (1997) (OCGA § 17-10-7 does not violate prohibition against ex post facto laws).

Judgments affirmed.

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

Michael A. Corbin, for appellant (case no. A98A1136).

Mitchell & Mitchell, E. Neil Wester III, Gee G. Vaughn, for appellant (case no. A98A1137).

Coppedge, Leman & Ward, James T. Ward, for appellant (case no. A98A1138).

Kermit N McManus, District Attorney, for appellee.


author: McMurray, Presiding Judge.

text:
    A98A1171.
    BUSCH v. THE STATE.
    (507 SE2d 868)
   McMurray, Presiding Judge.

Defendant was charged with seven counts of aggravated assault (Counts 1, 2, 7, 12, 14, 17 and 20), five counts of armed robbery (Counts 3, 4, 8, 15 and 18), seven counts of possession of a firearm during the commission of a crime (Counts 5, 6, 9, 13, 16, 19 and 21), one count of theft by taking a motor vehicle (Count 10) and one count of criminal attempt to commit armed robbery (Count 11). The evidence adduced at a jury trial reveals that these charges are based on five ambush-type assaults which occurred in Warner Robins, Georgia, on December 19 and 20, 1994. Four of the attacks occurred in parking areas outside the victims’ homes; one occurred in a convenience store parking area, and all five were committed after dark between 8:30 and 9:45 p.m.

Counts 1 through 6 of the indictment are based on assaults and armed robbery of Charles Gremillion and Karen Gremillion, respectively, as well as possession of a firearm during the commission of a crime. These crimes occurred at about 9:30 p.m. on December 19, 1994, in the parking area outside the Gremillions’ home. The Gremillions’ testimony reveals that defendant and an accomplice ambushed the couple just after they parked their car and that defendant used a handgun to compel the Gremillions to give up their valuables.

Counts 7 through 10 of the indictment are based on an incident which occurred a few minutes after the Gremillion assaults. James Aubrey Lovett, Jr. testified that defendant approached him in a convenience store parking lot, pointed a gun at him and ordered him to give up his wallet. Lovett explained that he did not give up his wallet, but that defendant got away with his car.

Counts 11 through 13 of the indictment are based on an incident which occurred outside Jay Baker’s home at about 8:45 p.m. on December 20,1994. Baker testified that defendant and an accomplice appeared just after he exited his car; that defendant ordered him to give up his wallet and that, when he refused, defendant shot him.

Counts 14 through 16 of the indictment are based on an incident which occurred at Debbie Struth’s home at about 9:03 p.m. on December 20, 1994. Struth testified that defendant appeared in her garage just after she parked her car; that defendant pointed a gun at her and that defendant seized her valuables.

Counts 17 through 21 of the indictment are based on assaults against Kim Veal and Ginger Huff about 30 minutes after the assault of Debbie Struth. Veal testified that she and her 15-year-old sister, Ginger Huff, arrived at her parents’ house after dark on December 20, 1994; that defendant appeared just after she parked her car and that defendant forced her to give up her valuables. Huff testified that defendant pointed a gun at her during this assault.

The jury found defendant guilty of all 21 counts of the indictment. This appeal followed the denial of defendant’s motion for new trial. Held:

1. Defendant challenges the sufficiency of the evidence as to the crimes against Jay Baker and Kim Veal under Counts 11, 12, 13, 17, 18 and 19 of the indictment, arguing that these victims did not see him in possession of a handgun when they were assaulted. This argument is without merit.

The State had to prove that defendant was in possession of a firearm during the assaults of Jay Baker and Kim Veal, not that these victims were aware of defendant’s possession of a firearm. This is so because awareness is not an essential element of the challenged offenses, i.e., aggravated assault, armed robbery, criminal attempt to commit armed robbery and possession of a firearm during the commission of a crime. OCGA §§ 16-5-21; 16-8-41 (a); 16-4-1; 16-11-106. See Sutton v. State, 245 Ga. 192 (1), 193 (264 SE2d 184); Brown v. State, 200 Ga. App. 537 (1) (408 SE2d 836).

Jay Baker’s testimony that defendant shot him when he refused to give defendant his wallet; Kim Veal’s testimony that defendant forced her to give up her purse and Ginger Huff’s testimony that defendant was holding a handgun during this assault authorizes the jury’s finding that defendant is guilty, beyond a reasonable doubt, of the crimes charged in Counts 11, 12, 13, 17, 18 and 19 of the indictment. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Defendant contends the State failed to prove venue as to the crimes charged in Counts 7, 8, 9, 10, 17, 18, 19, 20 and 21 of the indictment. We do not agree. Because venue was not challenged at trial, testimony from the law enforcement officer who investigated these offenses that he was employed in the county where defendant was tried satisfied the State’s burden as to venue under Counts 7, 8, 9, 10, 17, 18, 19, 20 and 21 of the indictment. Joiner v. State, 231 Ga. App. 61 (497 SE2d 642).

3. Defendant contends Karen Gremillion’s and Debbie Struth’s in-court identification of him as their assailant was tainted because defendant was the only person of his race seated at the defense table. This contention is without merit for the reasons given in Ralston v. State, 251 Ga. 682, 683 (2) (309 SE2d 135). Karen Gremillion’s and Debbie Struth’s testimony indicate that they had ample opportunity to observe defendant at close range during their respective assaults. Further, both Karen Gremillion and Debbie Struth were subject to cross-examination concerning the basis for their in-court identifications and their ability to observe defendant during the crime. These circumstances authorized the jury’s consideration of the identification testimony at issue. See Moore v. State, 268 Ga. 420, 421 (1) (489 SE2d 842).

4. Defendant seeks resentencing, asserting that the aggravated assault charges which involve the same victim as the armed robbery charges merge as a matter of fact.

(a) The James Lovett Incident. The trial court did not err in failing to merge the aggravated assault of James Lovett as charged in Count 7 of the indictment with the armed robbery of Lovett as charged in Count 8 of the indictment. The record shows that the aggravated assault charge is based on proof that defendant pointed a handgun at Lovett for the purpose of taking his wallet. The armed robbery charge is based on proof that defendant took Lovett’s car after this assault was complete. See Culver v. State, 230 Ga. App. 224, 232 (9) (496 SE2d 292).

(b) The Charles Gremillion and Karen Gremillion Incident. The State concedes that the aggravated assault of Charles Gremillion charged in Count 1 of the indictment merges as a matter of fact for sentencing purposes with the armed robbery of Mr. Gremillion charged in Count 3 of the indictment. The State also concedes that the aggravated assault of Karen Gremillion charged in Count 2 of the indictment merges as a matter of fact for sentencing purposes with the armed robbery of Ms. Gremillion charged in Count 4 of the indictment. Accordingly, the sentences under these counts are hereby vacated, and the case sub judice is remanded for resentencing under Counts 3 and 4 of the indictment.

(c) The Debbie Struth Incident. The State concedes that the aggravated assault of Debbie Struth charged in Count 14 of the indictment merges as a matter of fact for sentencing purposes with the armed robbery of Struth charged in Count 15 of the indictment. Accordingly, the sentences under these counts are hereby vacated, and the case sub judice is remanded for resentencing under Count 15 of the indictment.

(d) The Kim Veal Incident. The State concedes that the aggravated. assault of Kim Veal charged in Count 17 of the indictment merges as a matter of fact for sentencing purposes with the armed robbery of Veal charged in Count 18 of the indictment. Accordingly, the sentences under these counts are hereby vacated, and the case sub judice is remanded for resentencing under Count 18 of the indictment.

5. The State concedes that the trial court erred in sentencing defendant under Count 10 of the indictment for theft by taking because this charge merged with defendant’s conviction under Count 8 for armed robbery. Accordingly, defendant’s sentences under Counts 8 and 10 of the indictment are hereby vacated, and the case sub judice is remanded for resentencing under Count 8 of the indictment.

6. The trial court did not err in sentencing defendant to seven consecutive five-year sentences for being convicted of possession of a firearm during the commission of a crime under Counts 5, 6, 9, 13, 16, 19 and 21 of the indictment. OCGA § 16-11-106 (b) provides that any sentence imposed for being convicted of being in possession of a firearm during the commission of a felony is “to run consecutively to any other sentence which the person has received.” Contrary to defendant’s sixth enumeration of error, the trial court did not have discretion to impose concurrent five-year sentences for defendant’s convictions under Counts 5, 6, 9, 13, 16, 19 and 21 of the indictment. See Hartman v. State, 266 Ga. 613, 615 (5) (469 SE2d 163).

7. Defendant claims he was denied the effective assistance of trial counsel. “ ‘In order to establish ineffectiveness of trial counsel under Strickland v. Washington, [466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984), defendant] must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. See also Bowley v. State, 261 Ga. 278 (4) (404 SE2d 97) (1991). Unless a defendant makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable.’ (Punctuation omitted.) Stephens v. State, 265 Ga. 120, 121-122 (2) (453 SE2d 443) (1995). In addition, ‘(t)here is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance and that any challenged action might be considered sound trial strategy. In the absence of testimony to the contrary, counsel’s actions are presumed strategic. The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.’ (Punctuation omitted; emphasis supplied.) Binion v. State, 222 Ga. App. 333, 334 (1) (474 SE2d 208) (1996). It is not necessary to address specifically and individually each and every one of [defendant’s] numerous allegations of ineffective assistance of counsel [in the case sub judice].” Brooks v. State, 232 Ga. App. 115, 119 (15) (501 SE2d 286). After reviewing all of defendant’s assertions, studying defendant’s testimony at the hearing on his ineffective assistance of counsel claims and examining defendant’s trial counsel’s testimonial responses to defendant’s ineffective assistance of counsel assertions at this hearing, we find that the trial court did not erroneously deny defendant’s motion for new trial based on ineffective assistance of counsel. Because defendant did not satisfy his burden under Strickland v. Washington, 466 U. S. 668, supra, his ineffective assistance of counsel claims are without merit.

Decided October 16, 1998

Elizabeth Lane, for appellant.

Kelly R. Burke, District Attorney, Amy E. Lambert, Assistant District Attorney, for appellee.

Judgment affirmed in part and vacated in part and case remanded for resentencing.

Blackburn and Eldridge, JJ., concur.


author: Judge Harold R. Banke.

text:
    A98A1254.
    DILL v. CHASTAIN.
    (507 SE2d 872)
   Judge Harold R. Banke.

The jury awarded contractor Alan Chastain d/b/a Horizon Building Systems (“Chastain”) $13,878.87 in his breach of contract action against Homer Dill. In his sole enumeration, Dill appeals the trial court’s denial of his motion for judgment notwithstanding the verdict (“j.n.o.v.”) and for new trial.

This case arose after Dill hired Chastain to build an addition onto an existing building for $69,750. The men entered into a written contract reflecting this agreement. Chastain then commenced construction and partially completed the project. Dill paid $47,030.50 and then refused to pay more. Rather than negotiate, Dill hired another contractor to complete the project.

Chastain then initiated this action alleging breach of the construction contract, seeking damages of the balance of the contract price. Dill counterclaimed, asserting that Chastain abandoned the contract without full performance and negligently executed the existing work. Dill alleged that he was forced to hire others to complete the project.

At the close of Chastain’s case, Dill moved for directed verdict, unsuccessfully arguing that the evidence of damages was insufficient. Dill renewed this argument in his motion for j.n.o.v., specifying that Chastain failed to show the reasonable cost he would have incurred in finishing the project. Held:

The trial court erred by denying Dill’s motion for j.n.o.v. Such motions are properly granted where the evidence does not conflict on any material issue and demands a particular verdict. Kroger Co. v. Brooks, 231 Ga. App. 650, 651 (500 SE2d 391) (1998). Our review is circumscribed by the “any evidence” standard. Id.

When a construction contract is wrongfully breached, the basic component of damages is the net profit the contractor would have received had full performance been permitted. Imaging Systems Intl. v. Magnetic Resonance Plus, 227 Ga. App. 641, 642-643 (1) (490 SE2d 124) (1997); Williams v. Kerns, 153 Ga. App. 259, 260 (1) (265 SE2d 605) (1980). That figure is calculated by subtracting from the contract price the amount full performance would have cost the contractor. Energy Contractors v. Ga. Metal Systems &c., 186 Ga. App. 475, 477 (2) (367 SE2d 324) (1988). Amounts spent on materials that the contractor could subsequently use on future projects must be accounted for as would any other expenditures affecting profit. See Kerns, 153 Ga. App. at 260-261 (1). Where, as here, both parties have partially performed, the amount must be adjusted to reflect their various payments. Energy Contractors, 186 Ga. App. at 477 (2).

In order to prove his damages, it was incumbent on Chastain to establish the amount he would have expended to complete the project. Having read and considered the entire record, we find no such evidence. Chastain testified that he was “asking for the . . . remaining balance of the . . . total contract price of $69,750, less the building price . . . and less what [Dill] paid David Brindle there to construct it which was $9,000 . . . $14,925.” But Chastain did not state the amount he would have expended to complete the project or his net loss prior to the breach. Kerns, 153 Ga. App. at 267 (1). He did not testify to his usual percentage of profit, the additional materials he needed to purchase, the amount he would have paid his employees to complete the job, or the time it would have taken. Although Chastain agreed that he could estimate his cost to finish the project within $2,000 to $3,000, he offered no figures. Nor can we agree that the amount Dill expended to complete the project suffices to establish Chastain’s projected expenditure. Chastain is not entitled to the benefit of Dill’s bargain with the other contractor when the true measure of damages is the amount Chastain would have expended to complete the project. Imaging Systems Intl., 227 Ga. App. at 642-643 (1). Chastain was entitled to recover only the anticipated net profit he forfeited due to Dill’s breach. Rome Housing Auth. v. Allied Bldg. Materials, 182 Ga. App. 233, 238 (4) (355 SE2d 747) (1987). This he failed to prove.

Judgment reversed.

Johnson, P. J., and Smith, J., concur. Andrews, C. J., disqualified.

Decided October 16, 1998.

English, Tunkle & Smith, Richard D. Tunkle, for appellant.

R. Scott Cunningham, for appellee.


author: Smith, Judge.

text:
    A98A1292.
    DURHAM et al. v. MOONEY.
    (507 SE2d 877)
   Smith, Judge.

William and Cora Durham brought suit against Charles Mooney to recover damages for personal injury, punitive damages, and loss of consortium incurred when Mooney’s dog bit William Durham. The trial court granted Mooney’s motion for summary judgment, and this appeal ensued. We find that because Mooney successfully negated at least one essential element of the Durhams’ case, the trial court properly entered summary judgment in favor of Mooney. We therefore affirm the judgment.

The record shows that Mooney bought his Rottweiler dog, Malik, in 1994. He had previously owned two other Rottweilers and other large dogs. None of his dogs, including Malik, ever attacked anyone before. On the date of the incident, in April 1996, Mooney took Malik for a walk. Malik was on a leash. Durham, who was a neighbor but had not been formally introduced to Mooney, walked over to Mooney, and the two men introduced themselves and shook hands. Durham testified he admired Malik and asked if he could pet him. Durham then knelt, petted Malik, and rubbed his head and neck, whereupon the dog suddenly bit Durham’s arm. The parties agree that the dog gave no warning signals such as growling or barking at Durham before biting him and Durham did nothing overt to provoke or abuse the dog.

OCGA § 51-2-7 provides that “[a] person who owns or keeps a vicious or dangerous animal of any kind and who, by careless management or by allowing the animal to go at liberty, causes injury to another person who does not provoke the injury by his own act may be liable in damages to the person so injured. In proving vicious propensity, it shall be sufficient to show that the animal was required to be at heel or on a leash by an ordinance of a city, county, or consolidated government, and the said animal was at the time of the occurrence not at heel or on a leash.” Under this Code section, it is clear that to recover in a dog bite case, a plaintiff must show not only that the dog had vicious propensities, but also that the owner knew or should have known of those propensities. Freeman v. Farr, 184 Ga. App. 830-831 (363 SE2d 48) (1987) (physical precedent only).

The trial court ruled that Mooney was not liable under the per se provision of the statute notwithstanding a county leash law, because the dog was leashed at the time of the incident. The court also concluded that no evidence was presented showing careless management, vicious propensities, or knowledge attributable to Mooney of any such propensities.

1. The Durhams contend the trial court erred in concluding that insufficient evidence was presented to show that Malik had vicious propensities or that Mooney had knowledge of such propensities. The dog’s nature and the owner’s knowledge are two separate issues, and both are necessary for recovery. Torrance v. Brennan, 209 Ga. App. 65, 66 (1) (432 SE2d 658) (1993).

The Durhams point to evidence that Malik had barked and growled at Mooney’s next-door neighbor as evidence of his vicious propensity. But barking and growling amount, at most, to what has been characterized as menacing behavior. And it is clear that menacing behavior alone does not establish vicious propensity. Banks v. Adair, 148 Ga. App. 254, 255 (251 SE2d 88) (1978). Even assuming, arguendo, that Malik did have a vicious propensity, if no evidence was presented of Mooney’s knowledge of that propensity, an essential element of the Durhams’ case is lacking, and summary judgment was proper.

“[T]his court has repeatedly held that proof that the owner of the dog either knew or should have known of the dog’s propensity to do the particular act which caused injury to the complaining party is indispensable to recovery against the owner.” (Citations and punctuation omitted; emphasis supplied.) Freeman, supra. The owner need not be aware of the dog’s propensity to do the exact same act that caused the injury in issue, but in order to infer the requisite knowledge there must be at least one incident that would cause a prudent person to anticipate the actual incident that caused the injury. Torrance, supra at 67-68 (2). Our review of the record persuades us that no evidence of such awareness was presented.

Mooney’s awareness that Malik barked and growled does not demonstrate knowledge that he would bite. In this case, Mooney denied knowledge of Malik’s propensity to bite, and we cannot infer such knowledge from the evidence of record. Both Durham and Mooney expressed surprise that the dog had attacked. On his deposition, Durham testified that he was familiar with dogs because his mother had bred German Shepherds. He thought Malik “looked like a really well-behaved dog,” a well-trained dog, because the dog was walking beside its owner without straining at the leash. When Malik attacked him, he “backed off. And I said, why did he do that? And Mr. Mooney said, I don’t know. I thought I knew my dog.” Mooney, in turn, testified on his deposition that he had no reason to anticipate the attack or stop Durham from petting the dog because “everybody else who came in contact with him petted him” without incident. He testified that he “knew the dog to be a cordial, well-temperament (sic) dog, who had interaction with grown folks and children, and who had never given me any reason to think that he would do anything of the sort.” He acknowledged, however, that “I thought I knew him better than I did, apparently.”

Decided October 16, 1998.

George W. McGriff & Associates, George W. McGriff, Eric E. Wyatt, for appellants.

The evidence of record shows that Mooney kept Malik in a fenced yard and walked him on a leash. It shows that Malik had never bitten or even attempted to bite anyone before. The record simply fails to support an allegation that Mooney was aware of any vicious propensities displayed by Malik. Mooney has thus demonstrated that no jury issue exists with regard to one essential element of the Durhams’ case. Summary judgment was therefore properly granted to Mooney. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

2. Contrary to the Durhams’ assertion, the trial court did address their allegation that Mooney negligently trained the dog. The trial court found that the evidence simply failed to show that Mooney negligently trained Malik. This finding is amply supported by the record.

3. Because Mooney had no prior knowledge, either actual or constructive, that the dog would bite Durham, his inviting or allowing Durham to pet the animal does not make him liable for the resulting injury. The Durhams’ reliance on cases involving giving false information and placing others in peril is completely misplaced. In order to recover in this case, the Durhams were required to prove the elements set forth in OCGA § 51-2-7. This they did not do.

4. Punitive damages are awardable only when other damages, compensatory in nature, are awarded. Chrysler Corp. v. Marinari, 177 Ga. App. 304, 305 (1) (339 SE2d 343) (1985). Because the trial court correctly concluded that no compensatory damages were awardable, it follows that an award of punitive damages was precluded as well.

Judgment affirmed.

Johnson, P. J, and Senior Appellate Judge Harold R. Banke concur.

Chambers, Mabry, McClelland & Brooks, Robert M. Darroch, Susan G. James, Joan G. Grumpier, for appellee.

       The evidence of the Durhams’ experts addressed only Malik’s propensities, and we therefore need not address this evidence.