text:
    A97A0438.
    NASH v. THE STATE.
    (482 SE2d 520)
   Blackburn, Judge.

David Lee Nash appeals his conviction of burglary. On appeal, he contends he was denied his right to represent himself and his right of allocution, that his character was improperly placed in issue, and that the trial court’s charge on the burden of proof was improper. His enumerations of error do not require reversal.

1. Immediately prior to striking a jury, Nash expressed his desire to represent himself. The trial court inquired as to whether Nash understood the dangers of proceeding without counsel. After a discussion regarding Nash’s ability to represent himself, Nash requested that his counsel be retained as co-counsel.

“A criminal defendant has a constitutional right of self-representation which derives from the Sixth Amendment. Faretta v. California, 422 U. S. 806 (95 SC 2525, 45 LE2d 562) (1975). Under the Sixth Amendment, it has been held that the assertion of the right to be represented by counsel constitutes a waiver of the Sixth Amendment right of self-representation. Thus, the Sixth Amendment right does not afford the defendant the hybrid right to simultaneously represent himself and be represented by counsel.” (Citations and punctuation omitted.) Cargill v. State, 255 Ga. 616, 622 (3) (340 SE2d 891) (1986).

Accordingly, the trial court did not err in denying Nash’s motion.

2. In his second enumeration of error, Nash contends the trial court erred in allowing the introduction of his alias listed on the indictment which was read to the jury. Nash contends that the mere mention that he was known under an alias puts his character into issue. However, this issue was not raised at trial. After the State’s case, Nash’s counsel moved for a directed verdict alleging that a variance existed between the evidence and the indictment because no evidence had been presented regarding Nash’s alias.

“Because this is a court for review and correction of error, we cannot consider objections to evidence different from those raised at trial.” (Punctuation omitted.) Waddell v. State, 224 Ga. App. 172, 174 (480 SE2d 224) (1996). Nash’s failure to raise a character objection at trial precludes us from reviewing this issue. See also Malone v. State, 219 Ga. App. 728 (1) (466 SE2d 645) (1995).

3. Nash contends the trial court’s charge on presumption of innocence was erroneous. The trial court charged (1) that the “[defendant is presumed to be innocent until proven guilty,” (2) that the presumption of innocence remains with the “[defendant until it is overcome by the State,” and (3) that “[n]o person shall be convicted of any crime unless and until each element of the crime is proven beyond a reasonable doubt.” (Emphasis supplied.) Nash complains that the use of “until” dissolved the State’s burden and required the jury to reach a verdict of guilty.

In Cunningham v. State, 221 Ga. App. 341 (1) (471 SE2d 273) (1996), we specifically approved of the presumption of innocence charge given in the present case. Nash’s argument is without merit.

4. Nash contends he was denied his right of allocution. OCGA § 17-10-2 (a) provides that prior to sentencing the trial court shall hold a hearing for the introduction of “additional evidence in extenuation, mitigation, and aggravation of punishment.” The statute further provides that “the defendant or [his] counsel” shall present argument to the trial court regarding punishment. (Emphasis supplied.)

Decided February 28, 1997.

Mary Erickson, for appellant.

David L. Nash, pro se.

Thomas J. Charron, District Attorney, Debra H. Bernes, Bruce D. Hornbuckle, Nancy I. Jordan, Assistant District Attorneys, for appellee.

In the present case, Nash’s counsel spoke on Nash’s behalf regarding mitigation and punishment. Neither Nash nor his counsel requested that Nash speak for himself. This is significant considering Nash’s earlier comments to the trial court which emphasize his willingness to speak directly to the court. Therefore, the trial court did not deny his right of allocution.

Judgment affirmed.

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


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A97A0454.
    In the Interest of E. C., a child.
    (482 SE2d 522)
   Eldridge, Judge.

Appellant Brenda Camp challenges the termination of her parental rights, asserting that there was insufficient evidence that her child was deprived or that such deprivation, if present, was likely to continue. For the reasons set forth, we affirm the termination order of the trial court.

On March 11, 1994, an investigator from the Henry County Department of Family & Children Services (“DFCS”) visited appellant’s home on a referral. Appellant answered the door wearing only a tee-shirt and talked to the investigator for ten minutes before putting on additional clothing. Appellant’s speech was slurred, she appeared intoxicated, and she admitted taking medications and drugs. Appellant’s 14-month-old child, E. C., was taken into emergency custody by DFCS under court order. Following a 72-hour hearing on March 14, 1994, the juvenile court determined that the child was “deprived as contemplated under the provisions of OCGA § 15-11-2 (8) in that she is without proper parental care, control, subsistence, education, . . . [and concluding that] the deprivation of the child will continue and she will suffer irreparable harm” unless removed from appellant’s home. The court awarded temporary custody to DFCS and held a hearing on the deprivation petition on March 28, 1994. Between the first and second hearings, appellant was tested for drug use on March 18, 1994 and tested positive for methadone, codeine, and three other compounds. On September 13, 1994, the juvenile court found E. C. to be deprived and entered an order nunc pro tunc to March 28, 1994. The order was not appealed by appellant and later was extended for two years on September 21, 1995.

Between March 1994 and November 1995, DFCS developed four case plans for appellant with the goal of reuniting her with E. C. The juvenile court approved and adopted the case plans. Among the requirements of the plans, which were almost identical, were provisions requiring appellant to visit E. C. weekly; to secure and maintain a stable residence; to attain and maintain “emotional stability”; to address her drug problem and remain drug-free; to obtain a doctor’s report documenting what medications have been prescribed and their purpose; to obtain psychological counseling; and to pay child support in the amount of $25 per month.

Following appellant’s failure to comply with the case plans, DFCS petitioned the court to terminate the parental rights of appellant and the child’s father on April 6, 1996. A termination hearing was held on June 19,1996. The court heard testimony from appellant and DFCS employees, as well as the child’s guardian ad litem, who recommended that appellant’s parental rights be terminated. The court terminated the parental rights of appellant and the child’s father on August 20, 1996. Appellant timely appealed.

In her only enumeration of error, appellant asserts that there was not “clear and convincing evidence” that E. C. was deprived or that any deprivation, if present, was likely to continue. This is essentially a challenge to the sufficiency of the evidence presented during the termination hearing in June 1996.

“The standard of review of a juvenile court’s decision to terminate parental rights is ‘whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost.’ In the Interest of A. O. A., 172 Ga. App. 364, 365-366 (323 SE2d 208) (1984), quoting Blackburn v. Blackburn, 249 Ga. 689, 694 (292 SE2d 821) (1982); see also In the Interest of A. M. V., 222 Ga. App. 528 (474 SE2d 723) (1996); In the Interest of J. M. D., 221 Ga. App. 556 (472 SE2d 123) (1996); In the Interest of S. L. W., 221 Ga. App. 509, 510 (471 SE2d 579) (1996) (holding that the ‘reviewing court is to defer to the lower court in the area of factfinding and should affirm’ unless this standard is not met).” (Punctuation omitted.) In the Interest of T. B. R., 224 Ga. App. 470, 472 (480 SE2d 901) (1997); see also Clarke v. Cotton, 263 Ga. 861 (440 SE2d 165) (1994) (holding that clear and convincing evidence is that intermediate standard of proof between “preponderance of the evidence” and “beyond a reasonable doubt.”).

Under OCGA § 15-11-81 (a), the considerations for terminating parental rights involve a two-step process. In the Interest of J. M. D., 221 Ga. App. at 557. The trial court must first determine “whether there is present clear and convincing evidence of parental misconduct or inability.” OCGA § 15-11-81 (a). Such conduct or inability may be proved by showing, inter alia, that (1) the child is deprived; (2) such deprivation is caused by the lack of proper parental care or control by the parent in question; (3) the deprivation is likely to continue; and (4) the “continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child.” OCGA § 15-11-81 (b) (4) (A) (i)-(iv).

Further, in determining whether there is a lack of “proper parental care and control,” the court may consider several factors, including the parent’s “[e'Jxcessive use of . . . narcotic or dangerous drugs or controlled substances with the effect of rendering the parent incapable of providing adequately for the physical, mental, emotional, or moral condition and needs of the child,” as well as “physical, mental, or emotional neglect of the child or evidence of past physical, mental, or emotional neglect of the child or of another child by the parent.” OCGA § 15-11-81 (b) (4) (B) (ii), (v).

Once the trial court establishes a lack of parental care and control, the second part of the test for determining whether parental rights should be terminated is whether such termination “is in the best interest of the child, after considering the physical, mental, emotional, and moral condition and needs of the child who is the subject of the proceeding, including the need for a secure and stable home.” OCGA § 15-11-81 (a).

Therefore, after examining the evidence in the light most favorable to the appellee, the State of Georgia and DFCS, we conclude that there is more than sufficient clear and convincing evidence in the case sub judice for a rational factfinder to determine that appellant’s parental rights should be terminated and that such termination is in E. C.’s best interest.

The first factor in the determination of parental misconduct or inability is consideration of whether the child is deprived. In the case sub judice, E. C. was determined to be deprived in March 1994 and was taken into custody by DFCS. This deprivation order was extended in 1995 and has not been appealed by appellant. Therefore, appellant is bound by this finding of deprivation and the first factor is satisfied. In the Interest of T. B. R., 224 Ga. App. at 473; In the Interest of J. M. D., 221 Ga. App. at 558; In the Interest of S. L. W., 221 Ga. App. at 512.

However, even without an express finding of deprivation by the court, there is clear and convincing evidence that E. C. was deprived in 1994 and still would be deprived if she were living with appellant. Appellant is currently homeless, after leaving her parent’s home in Henry County, where she previously lived with E. C. Appellant is disabled with a back injury resulting from a car accident and receives $423 in Social Security disability payments per month. Until recently, the disability check was sent to appellant’s mother, who used it to pay appellant’s rent and utilities and sent appellant $100 monthly with which to purchase all of her food and necessities. Appellant owned a car at one time, but had no money to have it repaired when it broke down. Therefore, she primarily relies on friends for transportation, although she admitted that she sometimes hitchhikes. While appellant denies that her lack of resources in any way deprived E. C., she seems to blame the same problems for her frequent failure to visit E. C. during required weekly visitations.

Even with these difficulties, however, appellant has somehow managed to maintain daily methadone treatments in Atlanta, Georgia. She is transported daily to Atlanta by a van which is paid for by Medicaid. It is unclear why appellant is taking the methadone treatments, since she consistently has failed, in abrogation of her case plan requirements, to provide a physician’s report on her physical condition and all of her prescribed medications. The only explanation for the drug use is appellant’s claim that she injured her back in a 1991 car accident and has been disabled ever since, although she freely admits she is capable of working. Appellant admits taking methadone treatments while pregnant with E. C. Appellant claims she is addicted to painkillers, but even though she has had the opportunity to obtain Medicaid-financed, in-patient detoxification treatment, she has resisted such treatment.

Such evidence goes not only to a finding that E. C. is deprived, but also to the second factor to be considered by the court, which is whether the deprivation is caused by a lack of proper parental care or control by appellant. Appellant’s unexplained daily use of narcotics supports a finding that appellant is “incapable of providing adequately for the physical, mental, emotional, or moral condition and needs of the child.” OCGA § 15-11-81 (b) (4) (B) (ii). Appellant’s refusal to address her drug problem, and her apparent inability to support herself and provide a stable environment for E. C., provide adequate “clear and convincing evidence” that E. C.’s deprivation is caused by appellant.

However, the trial court heard additional evidence that supports such a finding. During testimony, appellant admitted to having four older children, all of whom live with others. Appellant’s oldest son is now 20 years old, but lived with his maternal grandmother in Florida prior to reaching the age of majority. Two of her other children are currently being raised by relatives; appellant voluntarily allowed her son to stay with his father’s relatives, and she involuntarily lost custody of her daughter (who is now 12 years old). Appellant’s youngest son was given up for adoption in 1992. Appellant admitted that, due to her inability to care for the child, who was born three months prematurely and addicted to drugs, she voluntarily gave him up for adoption. Appellant also admitted during testimony that she had not seen or spoken to her older children in three years. Such testimony is evidence of “physical, mental, or emotional neglect of another child by the parent,” which further supports a finding that appellant lacks “proper parental care or control” under OCGA § 15-11-81 (b) (4) (A) (ii). OCGA § 15-11-81 (b) (4) (B) (v).

Having found that E. C. is deprived and that such deprivation is caused by appellant, the third factor to' be considered is whether the deprivation of E. C. is likely to continue. OCGA § 15-11-81 (b) (4) (iii). “In addition to evidence of present parental misconduct or inability, ‘evidence of past conduct may be considered in determining whether the deprivation would be likely to continue. . . .’ In the Interest of A. M. V., 222 Ga. App. [528, 531 (474 SE2d 723) (1996)]; In the Interest of B. J., 220 Ga. App. 144, 146 (469 SE2d 313) (1996).” In the Interest of T. B. R., 224 Ga. App. at 474. Such an inference is appropriate, since the juvenile court is not required to reunite E. C. with appellant in order to obtain current evidence of deprivation or neglect. See Roberts v. State, 141 Ga. App. 268, 270 (233 SE2d 224) (1977) (holding that “there is no reason why a determination of deprivation may not be made on proof that the conditions under which the child would be raised in the parent’s home strongly indicate that deprivation will occur in the future.”).

Prior to the removal of E. C. from her home in March 1994, appellant asserts that life with E. C. was just “perfect” before DFCS interceded and seems to assert that things will again be perfect once E. C. is returned to appellant’s custody. This perception may originate in appellant’s apparent belief that DFCS and others are responsible for most, if not all, of her current problems, even while she has expended very little effort in addressing the problems.

For example, appellant has failed to achieve even the most basic requirements under the DFCS case plan because, she asserts, she does not think the requirements are necessary, she is unclear about what is required under the plans, or she is otherwise unable to accomplish the goals. She claims that her failure to visit with E. C. at almost two-thirds (64 of 98) of the scheduled weekly visits was largely due to DFCS’s failure to provide transportation for her. However, the case plans specifically noted that appellant alone was responsible for securing transportation to and from the required visitations. Further, a DFCS employee testified that appellant was offered the opportunity to call the DFCS office in advance of the scheduled visitations so that transportation could be arranged. Appellant never requested transportation in advance and often can-celled visitations at the last minute due to sickness or other reasons unrelated to a lack of transportation. Notably, a lack of transportation does not explain why appellant fell asleep during two or three of the scheduled visitations, during which time she was expected to interact and “bond” with the child.

Further, appellant consistently failed to obtain a medical explanation for her methadone use, to secure drug counseling, to provide the results of required monthly drug screenings, and to pay court-ordered child support. Such failure to abide by the case plans continued even after a DFCS employee gave appellant a one-page, simplified list of requirements that had to be met by appellant; the list was accompanied by the warning that “if you [appellant] do not do these things by Dec., 1995, DFCS will file for termination of parental rights!” A DFCS employee also testified that she discussed the case plan requirements with appellant twenty-one times over two years.

Finally, appellant is addicted to methadone and appears unwilling to undergo detoxification treatment; currently homeless; unemployed with no significant employment history; and without an adequate source of income or transportation. The evidence supports a finding that the deprivation of E. C. by appellant would continue if they are reunited.

Therefore, the final factor to be considered is whether or not the “continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child.” OCGA § 15-11-81 (b) (4) (A) (iv). In the case sub judice, the evidence strongly supports a finding that appellant is physically, emotionally, and financially unable to manage her own life, even without the added burden of a young, dependent child. There is no indication that appellant will be prepared in the near future to care for this child and to provide for E. C.’s medical, emotional, and educational needs. In fact, when E. C. experienced health problems requiring ear surgery in July 1995, appellant missed both the initial authorization hearing and the rescheduled hearing. In addition, appellant seems unable or unwilling to adequately supervise the child, since she fell asleep during a few brief weekly visitations with the child. Such evidence indicates not only a serious lack of interest on appellant’s part in the child’s physical well-being, but also indicates that E. C. could be exposed to medical neglect or physical harm if left solely in the care of appellant.

Further, DFCS documents indicate that E. C. has “made tremendous developmental gains since being in [foster care] . . . [and is] no longer involved with Early Intervention because of the great strides she’s made in terms of developmental progress.” Finally, observations by DFCS workers of the interaction between appellant and E. C. indicate that the child has not bonded with appellant, calls her foster mother “mommy,” and seems confused when both appellant and the foster mother are in the same room together. Such evidence supports a finding that E. C. would suffer confusion, developmental stagnation, potential medical neglect, and other serious harm if returned to the custody of the appellant.

Therefore, upon a finding of “parental misconduct or inability” under OCGA § 15-11-81 (a), the trial court then must determine whether terminating parental rights “is in the best interest of the child, after considering the physical, mental, emotional, and moral condition and needs of the child who is the subject of the proceeding, including the need for a secure and stable home.” OCGA § 15-11-81 (a). “Those same factors which show the existence of parental misconduct or inability can also support a finding that the termination of parental rights of the defaulting parent would be in the child’s best interest.” In the Interest of S. L. W., 221 Ga. App. at 513, quoting In the Interest of G. K. J., 187 Ga. App. 443, 444 (370 SE2d 490) (1988).

After viewing the evidence, as presented above, in the light most favorable to the appellee, there is more than sufficient clear and convincing evidence that the termination of appellant’s parental rights is in E. C.’s best interests. At four years of age, E. C. is apparently thriving in foster care. Her physical, emotional, and educational needs are being addressed. Upon termination of appellant’s parental rights, E. C. will become eligible for adoption and will have a realistic possibility of having a secure, stable home.

In contrast, there is no evidence that E. C. will receive adequate care and attention if returned to appellant. On the contrary, there is ample evidence that E. C. will again be deprived of her physical, emotional, mental, and moral well-being, as well as opportunities for future development. Although appellant presented evidence that she has been more diligent in pursuing the requirements of the case plan since the termination petition was filed, the trial court had the opportunity to weigh the evidence of appellant’s positive actions against her own damaging conflicting statements and to determine the chances of appellant’s successful rehabilitation. See In the Interest of M. N. L., 221 Ga. App. 123 (470 SE2d 753) (1996).

Decided February 28, 1997.

Meadows & Power, Gregory A. Futch, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Stephanie M. Baldauff, Assistant Attorneys General, Ernest D. Blount, for appellee.

On appeal of a trial court judgment, the appellate court’s role is “not to weigh the evidence and give a de novo opinion as to the weight of the evidence but merely to determine if there is sufficient evidence to authorize the trial court’s judgment. . . . The factfinding and weighing of evidence is to be done in the trial court under the clear and convincing evidence test. The reviewing court is to defer to the lower court in the area of factfinding and should affirm unless the appellate standard of review, here the rational factfinder test, is not met.” (Citations and punctuation omitted.) In the Interest of A. L. L., 211 Ga. App. 767, 770 (440 SE2d 517) (1994). There is more than sufficient clear and convincing evidence in the case sub judice for a rational factfinder to conclude that appellant’s parental rights should be terminated and that such termination is in E. C.’s best interest.

Judgment affirmed.

Birdsong, P. J, and Ruffin, J., concur.

       This determination was not appealed by appellant and is not subject to review by this Court.

       The child’s father did not appeal the termination of his parental rights.

       Although appellant asserts that DFCS was required to provide such transportation as “direct services” under the case plans, she cites no authority for this proposition, and we decline to adopt such a DFCS requirement.

       Appellant did pay $24 in child support on November 22, 1995.

       For example, appellant apparently lied to DFCS caseworkers when she stated that she did not use drugs; this statement conflicts with her testimony that she uses methadone daily, as well as evidence that she tested positive for five narcotics just after her seventy-two-hour hearing in March 1994. Further, appellant has stated on different occasions that she has one, three, or four children in addition to E. C. Such statements evince a lack of credibility on appellant’s part that appropriately may be considered by the trial court.


author: Judge Harold R. Banke.

text:
    A97A0463.
    WALKER v. THE STATE.
    (482 SE2d 515)
   Judge Harold R. Banke.

Calandas Walker was convicted of impersonating a police officer (OCGA § 16-10-23) and giving a false name to a law enforcement officer (OCGA § 16-10-25). Following the denial of his motion for new trial, Walker challenges both convictions on sufficiency grounds.

On appeal, the evidence must be viewed in the light most favorable to the verdict, and Walker no longer enjoys the presumption of innocence. Rigenstrup v. State, 197 Ga. App. 176, 181 (4) (398 SE2d 25) (1990). Viewed in that light, the State’s evidence was as follows. As Patrolman R. L. Lindsey began to write a citation for a vehicle illegally parked in a fire lane, Everleen Bell, the vehicle’s owner, ran out of a nearby laundromat to intercept him. Both Bell and Walker, her friend, attempted to dissuade Lindsey from ticketing the vehicle. Claiming to be an Alabama State Trooper, Walker informed Lindsey that “In Alabama, we give warnings for this.” When Lindsey requested some proof of identity, Walker stated he had left his identification in Alabama. Walker gave his name to Lindsey as Deramus McKinley. Bell indicated to Lindsey that she thought Walker was an Alabama State Trooper. After Walker’s identification revealed that he was Calandas Walker and not McKinley as he claimed, Lindsey arrested him. At trial, a personnel assistant for the Alabama Department of Public Safety testified that a record search failed to show any employment history for a Calandas Walker. Held:

Decided February 28, 1997.

Lee Sexton & Associates, Robert L. Ferguson, for appellant.

Walker’s challenges to the sufficiency of the evidence on both convictions are without merit. On appeal, this Court does not weigh the evidence or assess witness credibility. Dolphus v. State, 218 Ga. App. 565, 566 (462 SE2d 453) (1995). Despite Walker’s insistence that he did not claim to be an Alabama trooper and that he merely stated he had studied for an entrance test to become a trooper, and Bell’s testimony that she never heard Walker claim to be an Alabama State trooper, Lindsey’s contrary testimony was sufficient to support the conviction for impersonating an officer. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Similarly, the evidence was sufficient within the meaning of Jackson v. Virginia to support Walker’s conviction for giving a false name. Walker admitted mentioning the name McKinley Deramus [sic] but contended that he referred to McKinley in the context of being the supervisor administering the Alabama test. Conflicts in the testimony of witnesses are matters for jury resolution. Grier v. State, 218 Ga. App. 637, 638 (1) (463 SE2d 130) (1995). The jury obviously chose not to believe Walker. The testimony of Lindsey, a single witness, was sufficient to establish the false name count. OCGA § 24-4-8. See Searcy v. State, 236 Ga. 789, 790 (225 SE2d 311) (1976).

Judgment affirmed.

Pope, P. J, and Johnson, J., concur.

Robert E. Keller, District Attorney, Verda M. Andrews-Stroud, Assistant District Attorney, for appellee.


author:
Beasley, Judge.
      Blackburn, Judge,

text:
    A96A2059.
    A96A2060.
    HAMMITT v. THE STATE. CROWDER v. THE STATE.
    (482 SE2d 437)
   Beasley, Judge.

Defendants Hammitt and Crowder were tried jointly and convicted by a jury. They were each sentenced pursuant to merger of two counts of robbery with two counts of armed robbery for the same offenses. OCGA §§ 16-8-40; 16-8-41. The robberies were the joint enterprise of defendants, who took clothing from two youths at knife-point in an alley late at night.

The appeals are consolidated for review and decision because the issues are the same in that Crowder has adopted the enumerations of error and brief of Hammitt. The first enumeration is that the court erred in refusing to grant a mistrial, and the second enumeration raises the same underlying ground in claiming error in the denial of the motions for new trial.

Appellants argue that the State violated the discovery rule contained in OCGA § 17-16-7, with the result that defendants were prejudiced at trial by not having the victim-witnesses’ statements to the police in advance of the trial. This, they say, hampered their cross-examination and ability to impeach the witnesses’ testimony and was exacerbated because defendants did not see the statements until after the witnesses testified.

Prior to arraignment, defendants invoked the criminal discovery rule contained in OCGA § 17-16-7 by filing formal requests for “any statement of any witness against defendant.” The statute requires the opposing party, in this case the prosecution, to produce statements of any witness which the party intends to call as a witness at trial.

The two young victims in this case testified for the State and were cross-examined on behalf of both defendants. Later, when a police detective testified, he indicated that recorded statements had been given by both victims in the course of his investigation. Defendants objected and moved for mistrial on the ground that the State had not produced the statements, only summaries. The court ordered a recess so counsel could read the transcripts of the recordings. After this was accomplished, defendants still insisted on mistrial. They explained to the court that the statements conflicted with what the witnesses had testified at trial, particularly with regard to whether a weapon was present and used and to the sequence of events.

The court offered to have the two witnesses returned for further cross-examination, but defendants rejected this proposal because of the possibility the two witnesses had talked together about their testimony after they were excused. Counsel admitted, however, that the failure to provide the verbatim statements would be rectified by a new trial because defendants now had the statements.

The State followed an open file policy in this case before trial but the prosecuting attorney’s file did not contain the tape or the transcripts of it; the police had them. The interview summaries provided to defendants noted they were based on taped interviews. The court found that the State had failed to comply with the discovery statutes, in particular OCGA § 17-16-4 regarding audio tapes, by not obtaining the full statements from the police and producing them for the defendants. It then relied on the authority given in OCGA § 17-16-6 to fashion a remedy.

After recounting that there had been substantial cross-examination of one of the victim-witnesses about inconsistencies, that both counsel had opportunity to review the transcripts during the trial recess, and that the court was requiring the State to summon the two witnesses for further cross-examination if either defendant wished it, the court denied a mistrial.

Thereafter, the audio tapes of both interviews were played for the jury, and neither victim was recalled by either defendant for further cross-examination.

OCGA § 17-16-6 provides in part: “If at any time during the course of the proceedings it is brought to the attention of the court that the state has failed to comply with the requirements of this [discovery] article, the court may order the state to permit the discovery or inspection, interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the state from introducing the evidence not disclosed or presenting the witness not disclosed, or may enter such other order as it deems just under the circumstances.” The legislature does not impose a rigid or exclusive remedy for defendant nor a fatal consequence to the State on failure to comply with the discovery mandates. Instead, it leaves for the trial court the authority to use its judgment to assure a fair trial.

Considering all the circumstances here, and there appearing no prejudice to either defendant by the State’s failure to produce before trial the transcripts or alternatively the tapes pursuant to OCGA §§ 17-16-4 (a) (3) and 17-16-7, we hold that the trial court did not abuse its discretion in refusing to grant a mistrial or a new trial. See Tucker v. State, 222 Ga. App. 517, 518 (3) (474 SE2d 696) (1996).

Judgment affirmed.

Blackburn, J., concurs specially. Birdsong, P. J., concurs in the judgment only.

Blackburn, Judge,

concurring specially.

I concur in the judgment of the court, but write separately to address the prosecution’s obligations under the new discovery statutes, OCGA § 17-16-1 et seq.

Under the new discovery scheme, a defendant who opts into the statute is entitled to certain discovery from the state. Among other things, the defendant is entitled to pretrial discovery of any witness statements in the state’s possession (§ 17-16-7), certain statements of the defendant (§ 17-16-4 (a) (1)), and the defendant’s criminal history (§ 17-16-4 (a) (2)). The defendant is also entitled to review and copy any documents or other items in the state’s possession, including scientific reports, which the state intends to use as direct or rebuttal evidence (§ 17-16-4 (a) (3) and (4)). In return for this entitlement, the defense is required, among other things, to provide reciprocal discovery of documents and items in its possession (§ 17-16-4 (b)) and to provide discovery regarding any alibi defense (§ 17-16-5).

OCGA § 17-16-1 (1) provides that “ ‘[possession, custody, or control of the state or prosecution’ means an item which is within the possession, custody, or control of the prosecuting attorney or any law enforcement agency involved in the investigation of the case being prosecuted.” (Emphasis supplied.)

OCGA § 17-16-6 gives the trial court discretion in fashioning a remedy where the state fails to perform its discovery obligations. The statute provides that “the court may order the state to permit the discovery or inspection, interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the state from introducing the evidence not disclosed or presenting the witness not disclosed, or may enter such other order as it deems just under the circumstances.”

This statute clearly reflects two principal goals. First, and most important, any remedy fashioned by the trial court must be designed to restore to defendant all those rights which the legislature intended for the defendant to have had the state met its burden under the statute, and to correct the prejudice to the defendant caused by the state’s failure to perform its mandatory discovery obligations, regardless of whether the state acted in bad faith. Second, the statute clearly contemplates the imposition of punitive sanctions, including the exclusion of evidence, to deter the state from violating its discovery obligations. This deterrent goal is important because, if the most serious consequence of a failure to perform is the mere grant of a continuance, the state would have little incentive to ensure that it fully complies with its discovery obligations.

Although a trial court has discretion to fashion a remedy, this discretion is not unlimited, and this Court should not hesitate to review orders to ensure that the prejudicial effect of the state’s failure is minimized and that the legislative purposes have not been thwarted.

Here, after a police witness testified to the existence of the tapes, the trial court allowed a recess of the trial, during which time defense counsel reviewed transcripts of the tapes. After this recess, defense counsel pointed out several apparent inconsistencies in the statements. Defense counsel moved for a mistrial but did not request a continuance.

The court found that at the time defense counsel reviewed the prosecution’s file, the file contained a copy of a one-page summary of evidence specifically identifying the taped interviews with the victims. The court concluded that it therefore does not appear that the prosecution intentionally concealed the existence of the tapes from the defendants. The fact that the tapes were enumerated on a list of possible evidence, however, does not satisfy the state’s obligation to produce the tapes. The burden is on the state to produce any witness statements and to make available for inspection all discoverable items in its possession, including any items in the possession of the police. The burden is not on defense counsel to pry such items from the grip of the state based on clues to their existence found in the state’s file. The defendant is entitled to presume that items not produced do not exist and to plan his trial strategy accordingly. A finding of bad faith in failing to produce required evidence cannot be avoided by the practice of leaving references to the existence of such evidence in the state’s file rather than producing same. The obligation is to produce the evidence, and its presence on a list in the state’s file simply establishes that the state is aware of its existence.

As the burden is on the prosecution to produce or assemble for review all discoverable evidence, it has an affirmative obligation to keep apprised of all discoverable items in its possession or in the possession of the police. The prosecution cannot avoid a finding of bad faith by merely claiming ignorance of the contents of the police file. Where the prosecution fails to produce discoverable items, and does not provide an adequate explanation for its failure, these facts alone would be sufficient to authorize the trial court to infer bad faith. This is particularly so where the state attempts to use such evidence at trial without having disclosed it to the defense.

A primary purpose of requiring disclosure of evidence and witnesses well in advance of trial is to allow counsel time to reflect with deliberation upon such evidence, to consider how it could best be presented at trial and how it affects his overall trial strategy, and to seek to develop other evidence to corroborate or impeach the discovered evidence. When wrongfully withheld evidence is disclosed for the first time in the middle of a trial, the defendant may be presumed to have been prejudiced, as his attorney has not had the opportunity to reflect upon such evidence and to determine what other investigation may be required as a result of its use and how it impacts the existing trial strategy and the subpoena and call of witnesses.

Decided February 18, 1997

Reconsideration denied March 3, 1997

Lloyd C. Burton, Keith Williams, for Hammitt.

Richard E. Barnes, for Crowder.

Stephen F. Lanier, District Attorney, Emory B. Thompson, Assistant District Attorney, for appellee.

I disagree with the majority’s statement that there was no prejudice to the defendants by the state’s failure to produce the tapes. Where a defendant has been denied a statutory right by the conduct of the state, such defendant has lost all of those pre-trial benefits described above, which the legislature intended the defendant to have. It is inappropriate to permit the state to violate its statutory duty and to require a showing of harm by the defendant to address such violation.

It is clear in this case that the state violated its obligations under the discovery statute. The state was obligated to produce the tapes of the victims under OCGA § 17-16-7, regardless of whether the tapes were in the possession of the prosecution or the police. See OCGA § 17-16-1 (1).

In denying the motion for mistrial, the trial court stated that it would allow defendants to recall the victims to question them about alleged inconsistencies between their recorded statements and their trial testimony. This remedy fails to restore to defendants all those rights outlined above, which the legislature intended the defendants to have. While a continuance of a proper length, coupled with the right to recall the witnesses, would have restored such rights, defendants did not request such relief. Inasmuch as the trial court was never called upon to invoke this remedy, there can be no error in a continuance not being granted. It cannot therefore be said that the trial court erred in denying the motion for mistrial when an appropriate, less drastic measure was not requested. See Prejean v. State, 209 Ga. App. 411, 414 (5) (433 SE2d 628) (1993) (affirming denial of motion for mistrial where defendant made no request for continuance).

While I concur in the judgment of the majority, I would apply the above analysis.


author: Beasley, Judge.

text:
    A96A2202.
    MITCHELL v. THE STATE.
    (482 SE2d 419)
   Beasley, Judge.

Appellant “Jeff” Mitchell, his brother Stephen Mitchell, and Kyle Spell were charged with the malice and felony murder of Danny Hucks and with possession of a firearm during the commission of a crime. The Mitchell brothers were tried jointly. The jury found Stephen guilty of voluntary manslaughter, felony murder, and possession of a firearm, and the court sentenced him for the latter two offenses after merging voluntary manslaughter with felony murder. See Mitchell v. State, 266 Ga. 197 (467 SE2d 503) (1996). Appellant Jeff was convicted and sentenced for voluntary manslaughter (OCGA § 16-5-2) and possession of a firearm during the commission of a crime (OCGA § 16-11-106). He appeals after the denial of his motion for new trial.

The evidence at trial showed the following: Stephen and Hucks were involved with the same woman, Melissa Clark, for a number of years before the homicide. Hucks was extremely jealous and physically abused her. Although Clark broke off their relationship, his jealousy continued, as did his abuse toward Clark and her friends. After Hucks went to prison, Clark moved in with Stephen. When Hucks was released, he began making harassing telephone calls and continually threatened to kill them.

According to Stephen, on the night of the killing, Hucks spoke to him on the telephone and said that if Stephen did not meet him to fight, he would come and kill both Stephen and Clark. Stephen agreed to meet Hucks at an area known as the “sandpits.” Hucks told one of his friends that he was going to fight Stephen and kill some boys. Jeff and Spell accompanied Stephen to the site. Spell suggested to Stephen that they purchase shells for Spell’s shotgun, and while en route in Spell’s truck, Jeff purchased them.

At the sandpits, Hucks appeared with a group of his friends. Jeff stated he did not want any part of it and that they should let his brother and Hucks fight it out. Hucks initiated the fighting by running over to Spell’s truck, striking Stephen and Jeff with a large stick and smashing the windshield of Spell’s truck. He then said, “It ain’t worth going back to the penitentiary for; . . . let’s go,” and started walking back toward his truck. Stephen retrieved the shotgun from the truck. As Hucks was returning to his truck, Stephen fired at Hucks, wounding him in the shoulder (the first assault). Stephen, Jeff, and Spell began beating Hucks with sticks. Jeff and Spell walked off but Stephen kept up the beating for a short time. Spell reloaded the shotgun and Stephen returned to Hucks, lowered the shotgun, and fired when the shotgun was in Hucks’ mouth, blowing off most of his head (the second assault). Jeff was 30 to 50 feet away. They loaded the body on Spell’s truck and left, with Jeff driving. He assisted his brother in disposing of Hucks’ body.

1. Jeff challenges the sufficiency of the evidence to support his convictions. To decide, we must first examine the opinion in his brother’s case. In Stephen Mitchell’s appeal, supra at 266 Ga. 202-204 (2), the Court reviewed evidence showing that the first assault on Hucks was not fatal and did not contribute to his death. The Court could not determine from the record whether the jury used the same assault as the basis for its voluntary manslaughter and felony murder convictions. Therefore, it had to assume that the jury’s conviction of felony murder was based on the second assault. Holding that the jury’s verdict of voluntary manslaughter meant that it found the second assault to be mitigated by provocation and passion, the Court reversed Stephen’s felony murder conviction on the ground that where a jury returns a verdict for voluntary manslaughter, it cannot also return a verdict of felony murder based on the same aggravated assault. Edge v. State, 261 Ga. 865 (2) (414 SE2d 463) (1992). After determining that the evidence was sufficient to support voluntary manslaughter, the Court remanded the case to the trial court for resentencing. Mitchell, supra at 204 (3).

The first question is whether the evidence was sufficient to authorize a jury to find that appellant was a party to the crime of voluntary manslaughter. “Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.” OCGA § 16-2-20 (a). OCGA § 16-2-20 (b) (3) provides that a person is concerned if he “[ijntentionally aids or abets in the commission of the crime.”

Construed most favorably to the verdict, Bedingfield v. State, 219 Ga. App. 248 (1) (464 SE2d 653) (1995), the evidence authorized the jury to find that both Stephen and Hucks were in possession of deadly weapons (stick and gun) at the sandpits, and they each intended to fight with those weapons, and that they were thus engaged in “combat by agreement.” OCGA § 16-3-21 (b) (3). See Massey v. State, 251 Ga. 515, 516 (1) (307 SE2d 489) (1983); see also Parker v. State, 218 Ga. 654, 657 (4) (129 SE2d 850) (1963); Askins v. State, 210 Ga. 532, 536 (3) (81 SE2d 471) (1954) (rock and knife); Strickland v. State, 137 Ga. App. 419 (1) (224 SE2d 87) (1976); Sanders v. State, 26 Ga. App. 475 (2) (106 SE 314) (1921). The court charged on the legal effect of combat by agreement on the defense of justification. “Participation in mutual combat by providing a weapon to one of the other parties is sufficient to support a conviction for voluntary manslaughter as a party to the crime under OCGA § 16-2-20 (b) (3).” Steele v. State, 216 Ga. App. 276, 277 (454 SE2d 590) (1995), disapproved on other grounds Kennebrew v. State, 267 Ga. 400, 404, n. 2 (480 SE2d 1) (1996). It follows that providing the ammunition for a weapon to a combatant, thereby enhancing the weapon’s lethal capacity, is sufficient to support a voluntary manslaughter conviction. The evidence showed that Jeff did just that. He was more involved than appellant Young in Bullard v. State, 263 Ga. 682, 685 (1) (436 SE2d 647) (1993). Although both she and Jeff Mitchell were present at the homicide and participated in concealing the death of another, she did no more and thus could not be convicted as a party to the homicide. Jeff, on the other hand, had made the ammunition available and did nothing to stop its use. This is more than mere approval, which also is not sufficient. “Criminal intent may be inferred from conduct before, during, and after the commission of the crime.” Sands v. State, 262 Ga. 367, 368 (418 SE2d 55) (1992). See also Hildebrand v. State, 209 Ga. App. 507, 511 (4) (433 SE2d 443) (1993); Thaxton v. State, 184 Ga. App. 779 (1) (362 SE2d 510) (1987). The court cautioned the jury on the insufficiency of “mere presence” and “mere association” and required a finding of aiding and abetting in actual perpetuation or participation in the criminal endeavor.

Where a party has possessed a firearm during the commission of a felony, an accomplice who is concerned in the commission of the crime under OCGA § 16-2-20 is likewise guilty of both offenses. Howze v. State, 201 Ga. App. 96, 97 (410 SE2d 323) (1991). The evidence was sufficient to support Jeff’s conviction of this offense also.

2. Error is also claimed in the court’s jury charge on reasonable doubt.

In explaining this principle, the court charged that “[i]f the State fails to prove the defendants’ guilt beyond a reasonable doubt, it would be your duty to acquit the Defendants. . . . If . . . you think there’s a real possibility that they are not guilty, then you must give them the benefit of that doubt and find them not guilty.” In later instructing the jury on possible verdicts, the court charged that, “after considering the evidence in this case if you should find or believe beyond a reasonable doubt that the defendants are guilty of the charges made in the bill of indictment against the defendants . . . , you are authorized to find the defendants guilty of those . . . charges. If you do not believe that the evidence proves beyond a reasonable doubt the defendants are guilty of any of the offenses charged in the bill of indictment, then you’re authorized to find the defendants not guilty or you can find the defendants guilty of one charge, not guilty on the other charge; you can find them guilty of voluntary manslaughter, murder, or malice murder, whichever your verdict may be.” (Emphases supplied.) Appellant contends that the latter part of the charge was erroneous because the jury is required to acquit if it does not find proof beyond a reasonable doubt.

“The charge to the jury is to be taken as a whole and not out of context when making determinations as to correctness of same.” Bowles v. State, 168 Ga. App. 763, 765 (4) (310 SE2d 250) (1983). “ ‘Where an excerpt from a charge isolated from its context appears to be confusing, but, when construed with the remainder of the charge, is plain and explicit, a ground of a motion for new trial that segregates the excerpt from the whole charge and attacks it as misleading or confusing is without merit.’ [Cits.]” Geter v. State, 219 Ga. 125, 134 (2) (132 SE2d 30) (1963). “Further, ‘ “(i)t is not necessary in considering a charge to assume a possible adverse construction, but a charge that is sufficiently clear to be understood by jurors of ordinary understanding is all that is required. [Cit.]” [Cit.]’ [Cit.]” French v. State, 199 Ga. App. 873, 874 (2) (406 SE2d 526) (1991). Taken as a whole, the court’s charge would not have been understood by jurors of ordinary understanding to mean that they were merely authorized but not required to acquit appellant if they did not find proof of his guilt beyond a reasonable doubt.

Decided February 17, 1997

Reconsideration denied March 3, 1997

Stanley C. House, for appellant.

Charles J. Mitchell, pro se.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A96A2412.
    WOODS et al. v. DEPARTMENT OF TRANSPORTATION.
    (482 SE2d 396)
   Beasley, Judge.

Pursuant to OCGA § 32-3-1 et seq., the Department of Transportation (DOT) filed this condemnation petition for the property of Woods and others. Woods’ professional corporation was added as a party These condemnees were dissatisfied with the $76,000 deposited into the court registry by the condemnor as just and adequate compensation, so they appealed pursuant to OCGA § 32-3-14. A jury awarded $162,000, and final judgment was entered. The condemnees then moved for attorney fees under OCGA § 9-15-14, which the court denied on the ground that this section is inapplicable in eminent domain cases. We granted the condemnees’ application for discretionary appeal.

1. In DeKalb County v. Trustees, Decatur Lodge &c., 242 Ga. 707 (251 SE2d 243) (1978), as here, the condemnee’s position was that it was entitled to an award of attorney fees to compensate it for the expenses it had to incur in obtaining the fair market value of the property taken, in that the factfinder had awarded more for the property than the condemnor had offered. The question was whether the words “just and adequate compensation” contained in Art. I, Sec. Ill, Par. I of the 1976 Georgia Constitution were to be judicially interpreted to include the condemnee’s attorney fees and litigation expenses. Overruling prior decisions, the Supreme Court answered that question in the negative, reasoning that a proper construction of our constitution does not require such award and this is a public policy matter for legislative determination.

The constitutional provision interpreted in DeKalb County was carried forward in subsection (a) of Art. I, Sec. Ill, Par. I of the 1983 Constitution. Subsection (d) was added: “The General Assembly may provide by law for the payment by the condemnor of reasonable expenses, including attorney’s fees, incurred by the condemnee in determining just and adequate compensation.” Cobb County v. Sevani, 196 Ga. App. 247 (395 SE2d 572) (1990). The General Assembly has not enacted a specific law on that subject. But “[i]n 1986, the General Assembly enacted OCGA § 9-15-14 which provides that, under certain circumstances, a trial court is authorized to award attorney’s fees in ‘any civil action. . . .’” Id. The meaning of “any civil action” has been given wide berth. See Contract Harvesters v. Clark, 211 Ga. App. 297, 299 (2) (439 SE2d 30) (1993); DeKalb County v. Gerard, 207 Ga. App. 43 (427 SE2d 36) (1993) (distinguishing as excluded only criminal and quasi-criminal proceedings). This is for the reason that “[i]n all interpretations of statutes, the ordinary signification shall be applied to all words, except words of art or words connected with a particular trade or subject matter. . . .” OCGA § 1-3-1 (b).

Subsection (a) of OCGA § 9-15-14 mandates attorney fees for “any party against whom another party has asserted a claim, defense or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position.”

Subsection (b) of OCGA § 9-15-14 allows a discretionary award of attorney fees if the court finds “that an attorney or party brought or defended an action, or any part thereof, that lacked substantial justification or that the action, or any part thereof, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceeding by other improper conduct, including, but not limited to, abuses of discovery procedures. . . .”

In both Sevani and Dept. of Transp. v. Franco’s Pizza &c., 200 Ga. App. 723, 726 (5) (409 SE2d 281) (1991), the question of whether OCGA § 9-15-14 applies in state-initiated condemnation proceedings was raised but not decided. We reversed the award of attorney fees in Sevani because it was for pre-litigation activities, to which § 9-15-14 by its plain language is inapplicable. In Franco’s Pizza, the trial court awarded attorney fees based on actions by the condemnor before this Court. We reversed, holding among other things that implicit in the statutory language is that a court may impose attorney fees and litigation expenses for proceedings before that court. Id. at 728.

In this case, the trial court reasoned that the General Assembly did not intend OCGA § 9-15-14 to apply in eminent domain cases, because the 1983 Constitution specifically authorizes the General Assembly to provide by law for the payment of attorney fees by the condemnor in such cases, and no specific law has been enacted. But § 9-15-14 applies “in any civil action,” and a condemnation proceeding is a civil action. Griffin v. State of Ga., 211 Ga. App. 750 (440 SE2d 483) (1994). The plain and clear language of the statute establishes the intent of the General Assembly that it apply in condemnation proceedings. See OCGA § 1-3-1 (a). The term is all inclusive. The designation is one relating to type of action, not to character or identity of party. Thus, its application to the DOT as condemnor is authorized. See OCGA § 1-3-8.

2. The condemnees sought mandatory attorney fees under subsection (a) of OCGA § 9-15-14 because of the condemnor’s failure to tender additional sums into the court registry after its appraiser increased his appraisal to $90,000 during litigation but before trial, and on a discretionary basis under subsection (b) because of the jury’s award of substantially more money than the condemnor offered.

If the condemnees were dissatisfied with the amount deposited, they could have utilized OCGA § 32-3-15 to file a petition for interlocutory hearing before a special master on the issue of whether that amount was sufficient compensation. For this reason, if for no other, they are not entitled to attorney fees under subsection (a) based on the amount deposited.

However, they did exercise their right of appeal to a jury pursuant to OCGA § 32-3-14. The trial court can award attorney fees to the condemnees in its discretion under subsection (b) on the ground that the condemnor, by offering less than half the amount found by the jury to represent just and adequate compensation, unnecessarily expanded the proceedings by improper conduct. The judgment is reversed and the case remanded for the trial court to decide whether condemnees are entitled to an award of attorney fees under subsection (b). See generally Childs v. Catlin, 134 Ga. App. 778, 782 (216 SE2d 360) (1975).

Decided February 14, 1997

Reconsideration denied March 3, 1997

Vinson, Talley, Richardson & Cable, James G. Richardson, Michael R. Wing, for appellants.

Michael J. Bowers, Attorney General, George P. Shingler, Daniel M. Formby, Deputy Attorneys General, Charles A. Evans, for appellee.

Judgment reversed.

Birdsong, P. J, and Blackburn, J., concur.


author: Johnson, Judge.

text:
    A96A2537.
    XPRESS CARGO SYSTEMS, INC. et al. v. McMATH.
    (481 SE2d 885)
   Johnson, Judge.

Xpress Cargo Systems (‘Xpress”) and its insurer, International Indemnity Company (“International”), appeal a personal injury judgment in favor of Evelyn McMath. A Fulton County jury awarded McMath $100,000 in damages after finding Xpress responsible for the injuries she sustained in a collision with its parked delivery truck. We find International was properly joined as a defendant pursuant to OCGA § 46-7-12 (e), which authorizes a direct cause of action against an insurer. As the trial court properly excluded evidence that McMath had no driver’s license and did not err by limiting the scope of testimony given by Xpress’ expert, we affirm.

1. As Xpress correctly states, evidence that a plaintiff or defendant driver in an automobile personal injury case had no valid license is inadmissible unless a causal connection exists between the accident and the absence of a license. Fielding v. Driggers, 126 Ga. App. 365 (1) (190 SE2d 601) (1972). Xpress claims such a causal connection existed in this case because McMath had no license at the time of the accident as a result of impaired vision. Xpress argues the accident was caused by her impaired vision and, therefore, there is a causal connection between the accident and the absence of a license. This argument is without merit. Regardless of the status of McMath’s driver’s license, the question for the jury was whether her allegedly impaired vision caused the accident. Xpress’ citation to Co-Op Cab Co. v. Arnold, 106 Ga. App. 160, 164 (3) (126 SE2d 689) (1962) does not support its position, because in that case no objection was made to evidence that the defendant’s license had been revoked.

Even if the trial court should have allowed evidence that McMath had no driver’s license, its exclusion of the proffered evidence was harmless. McMath admitted on cross-examination that she did not obtain a driver’s license until after this accident. Although the trial court prohibited counsel for Xpress from asking any further questions on this issue, the jury was never instructed to disregard the answer or the question. Therefore, evidence that McMath did not have a valid license at the time of the accident was before the jury.

2. Xpress contends the trial court improperly limited the testimony of its expert ophthalmologist, who reviewed the results of an eye exam given to McMath shortly after the accident. This expert opined that at the time of the accident, McMath had cataracts and her vision would have been severely blurred. In the doctor’s opinion, even if McMath were wearing corrective lenses, her vision would have been no better than 20/200 in the right eye and 20/400 in the left. Xpress, however, claims the trial court improperly excluded the expert’s opinion on two other issues.

(a) The trial court did not allow the doctor to testify that McMath’s poor vision would have disqualified her from obtaining a Georgia driver’s license. The exclusion of this opinion was not error, as the ophthalmologist was not competent to testify regarding Georgia motor vehicle law. The expert opined that McMath would not have been able to achieve 20-60 corrected vision. In its charge, the trial court instructed the jury that Georgia law prohibits a person from obtaining a driver’s license unless his or her visual acuity is at least 20/60, corrected or uncorrected. Therefore, the jury could determine from the evidence presented whether McMath was legally qualified to drive. See McMichen v. Moattar, 221 Ga. App. 230, 231 (1) (470 SE2d 800) (1996); Baxter v. Melton, 218 Ga. App. 731, 732 (463 SE2d 53) (1995).

(b) The trial court also prevented the expert from testifying that McMath’s vision was so impaired she could not drive safely. The expert expressed her opinion regarding the extent of McMath’s visual impairment. But it was not error to prevent her from testifying as to the ultimate issue in this case. The jury was able to determine from the evidence and opinion presented whether McMath was capable of driving “safely,” or non-negligently. See McMichen, supra. The trial court properly limited the scope of the doctor’s opinion to exclude any conclusion that McMath’s actions were negligent. See Emory v. Dobson, 206 Ga. App. 482, 484 (426 SE2d 50) (1992).

3. In its final enumeration, Xpress contends it is not a “motor carrier” subject to OCGA § 46-7-12 (e); therefore, International should not have been joined as a party to the case.

The record shows Xpress was registered with the Georgia Public Service Commission and possessed a Class “G” permit “to transport PROPERTY only in interstate commerce only on and along the following route in the State of Georgia, in accordance with the Rules and Regulations of the Commission and the Georgia Motor Carrier laws applicable to Motor Carriers engaged solely in interstate business over the highways of Georgia.” The permit specifically classified Xpress as engaged in “Pickup or delivering motor carrier of air freight exempt under Section 10526 (a) (8) (B) (c).” Xpress had a certificate of insurance on file with the PSC naming International Indemnity as its liability carrier.

Decided February 20, 1997

Reconsideration denied March 3, 1997

Lane, O’Brien & Caswell, Stephen J. Caswell, David E. Keystone, for appellants.

Dwyer, White & Sapp, J. Matthew Dwyer, Jr., Anne W. Sapp, for appellee.

The trial court did not err in finding Xpress to be a “motor carrier” subject to the statute, as it falls within the definition of a “motor contract carrier” or “motor common carrier” found in OCGA § 46-1-1 (7) (A) and (B) (1994 version). None of the exceptions found in OCGA § 46-1-1 (7) (C) (1994 version) removes Xpress from that definition. Xpress contends that becaüse Xpress was an “air freight carrier” exempt from Federal Interstate Commerce Commission regulation by virtue of former 49 USC § 10526 (a) (8) (b) (C), it is also exempt from the Georgia definition of “motor carrier.” The authority Xpress cites for this proposition, Nat. Indemnity Co. v. Tatum, 193 Ga. App. 698 (388 SE2d 896) (1989), does not apply because that case deals with a carrier specifically exempted by the Georgia statute. Xpress is not exempt from OCGA § 46-7-12 (e) simply because it engages only in interstate commerce. Williams v. Southern Drayage, 213 Ga. App. 895, 896 (446 SE2d 758) (1994). Neither does the federal law preempt the Georgia definition of motor carrier for purposes of this personal injury action. See Westport Trucking Co. v. Griffin, 254 Ga. 361, 363-364 (329 SE2d 487) (1985). Regardless of whether federal carrier regulations and requirements apply to Xpress, Georgia’s direct action statute does apply, and the trial court did not err by refusing to dismiss International from this action.

Judgment affirmed.

McMurray, P. J, and Ruffin, J, concur.

       The language at issue in the 1994 version of OCGA § 46-1-1 (7) is now found at § 46-1-1(9).


author:
Blackburn, Judge. Smith, Judge,
      Beasley, Judge,

text:
    A96A1706.
    STEED v. DEAL.
    (482 SE2d 527)
   Blackburn, Judge.

We granted the natural mother’s application for discretionary appeal from the trial court’s denial of her motion for new trial in the father’s change of custody action. In that action, the court granted joint legal and physical custody of their nine-year-old son to each of the parents and provided that physical custody would alternate each July 1. The father had been awarded visitation rights at a hearing in the mother’s previously filed paternity action. The mother resides in Colbert, Georgia, and the father resides in Statesville, North Carolina.

The child lived with his father for over two years during kindergarten, first grade and the beginning of his second-grade year. He has lived with his mother at all other times. When the child was returned to his mother in 1993, he was having emotional and educational problems, did not know his A, B, C’s, and could not count to 20. His mother enrolled him in a special education class in 1994 and he made the merit list for the first time. He made five A’s and two B’s. His special education teacher testified that he had shown significant improvement.

1. In her first enumeration of error, the mother contends the trial court improperly granted joint legal custody because neither party requested it. The trial court, however, is required to consider joint custody whenever it finds both parents fit and equally capable of caring for their child. Although the trial court is not required to grant joint custody, it may do so whenever it finds joint custody is in the best interest of the child. Baldwin v. Baldwin, 265 Ga. 465 (458 SE2d 126) (1995). As the trial court found this arrangement to be in the child’s best interest, it was not error to award joint custody just because neither party requested it.

2. The mother also argues that insufficient evidence was presented to warrant the change from sole custody to joint custody, as no material change in circumstances was shown. However, because a party may not expand her enumeration of error by arguments and citation in the brief, we do not consider her arguments on this issue. In the Interest of S. K. L., 199 Ga. App. 731, 734 (2) (405 SE2d 903) (1991).

3. The mother further argues that the terms of the change of custody order are detrimental to the child. The court’s order transfers custody of the child between the parents on July 1 of each year until he reaches the age of majority. This order has the effect of requiring the child to change schools, make new friends, and change activities every year. It would also require an annual change in the child’s mental therapy and counselor and cause a disruption of his special education program. However, the trial court, in its order, mandated that the child continue to participate in each of these programs.

No evidence shows this arrangement will serve the child’s best interest. On the contrary, evidence from teachers and mental health professionals shows this child suffers from attention deficit disorder and depression, and that he requires special education. A psychologist testified that the child’s condition requires him to remain in a stable environment and opined that the yearly transition would adversely affect the child. Dr. Glazer, who performed psychological evaluations on the parents and the child, testified that he did not “see any evidence that [the mother and father] could share decision making at the present.” He also testified that “in our work with the child [the change of custody order] is probably the worse scenario that I can imagine in that with the problems that he’s seeing mental health people for and help from the school for, stability and consistency are the most important things. And the order calls for him to be moved about all the time. And I’m very concerned about that.”

In Lifsey v. Lifsey, 256 Ga. 613, 614 (2) (351 SE2d 637) (1987), the Supreme Court struck down a nearly identical custody order. If there is any reasonable evidence to support the trial court’s decision as to what is in the best interest of the child in a change of custody action between parents, such decision will be affirmed on appeal. Lifsey, supra. Here, the trial court recited certain negative conclusions, concerning each of the parents. It concluded that the mother’s relationship with Earl Hardy was detrimental to the child. It further concluded that the mother’s allowance of a trip to Florida by the family, including the son and Earl Hardy, when the court had ordered her to not allow the child to be around Hardy, constitutes a material change that is detrimental to the child. There is no evidence in the record that there was any inappropriate conduct engaged in between the parties and the mother’s daughter was also present.

The court concluded that the father had recovered from a onetime drinking problem. The father had previously been held in contempt of court for failure to pay child support and was in arrears in the amount of $8,175 in 1994. The father reported an adjusted gross income on his federal income tax return for 1994 in the amount of $61,341. The trial court, however, awarded joint legal and physical custody of the child to each of the parents, thereby establishing that each of the parents was fit and capable of having custody of said child.

Here, as in Lifsey, supra, there is no evidence in the record that might support a finding that the best interest of the child will be served by requiring that he change residence, school system, special education teachers, doctors, therapists, circle of friends, activities, and states on a yearly basis. For that reason, we reverse the trial court’s order regarding the particulars of the joint custody arrangement and remand this matter for further consideration as to this issue, consistent with this opinion. Pursuant to OCGA § 19-9-3 (a) (2), the trial court should “exercise its discretion to look to and determine solely what is for the best interest of the child . . . and what will best promote [his] welfare and happiness and . . . make its award accordingly.”

Judgment affirmed in part, reversed in part, and case remanded.

McMurray, P. J., Pope, P. J., and Johnson, J., concur. Andrews, C. J., Smith and Ruffin, JJ, and Senior Appellate Judge Harold R. Banke concur fully and specially. Beasley, J., concurs in part and dissents in part.

Smith, Judge,

concurring specially.

I concur fully in the majority opinion. I write separately to point out the dangers of the approach advocated by the dissent, which circumvents the clear jurisdictional limitations of this Court. However legally correct or emotionally appealing an argument may be, it must be properly enumerated in order to be considered. “Our function as intermediate appellate judges is to correct errors of law which are complained of. It does not extend to reaching into the record and sua sponte raising and deciding issues not presented by the parties. [Cits.] .... ‘The Court of Appeals is a court for the correction of errors below; it is not a court of original jurisdiction. [Cit.]’ Not only was the issue not raised or ruled on below, it is neither enumerated as error nor briefed. These are all prerequisites to our consideration of a question. [Cits.] It thus has been subjected to no adversarial debate by the parties, no submission of argument or citation of authorities on both sides of it. . . . We take a big jurisdictional step when we venture beyond the matters complained of.” (Footnote omitted.) Taylor v. State, 186 Ga. App. 113, 115-116 (366 SE2d 422) (1988) (Beasley, J., dissenting). Contrary to the assertion made by the dissent here, the raising, ruling, enumeration, and briefing of an issue are “all prerequisites to our consideration of a question.” (Emphasis supplied.) Id.

I am authorized to state that Chief Judge Andrews, Judge Ruffin, and Senior Appellate Judge Harold R. Banke join in this special concurrence.

Beasley, Judge,

concurring in part and dissenting in part.

I agree that the evidence does not support the terms of the change of custody order, as held in Division 3. In fact, the terms will be detrimental to the best interests of the child, as the evidence clearly shows.

I cannot concur in the narrow interpretation of the mother’s first enumeration of error, filed pursuant to Rule 22, and the Court’s refusal to consider the sufficiency of the evidence to change custody of this troubled ten-year-old boy from his mother to a joint arrangement. She worded the first enumeration of error as being the order granting legal custody jointly “when” neither party requested such. She did not say “because”; if she had, it could have been construed technically to limit her challenge to the joint custody award to one ground for that enumerated error. But she did not do so. Instead, she challenges the joint custody award because neither parent requested joint custody as a solution and the evidence does not support it.

Even if her enumeration itself is unartfully worded, it does not require an enlargement of it so as to include issues not embraced therein. Instead, her two-pronged argument explains her position. A consideration of the sufficiency of the evidence does not violate the appellate procedural rule quoted in In the Interest of S. K. L., 199 Ga. App. 731, 734 (2) (a) (405 SE2d 903) (1991).

OCGA § 5-6-40 requires the appellant to file “an enumeration of the errors which shall set out separately each error relied upon. [It] shall be concise. . . .” OCGA § 5-6-48 (f) provides that “Where it is apparent from the notice of appeal, the record, the enumeration of errors, or any combination of the foregoing, . . . what errors are sought to be asserted upon appeal, the appeal shall be considered in accordance therewith notwithstanding . . . that the enumeration of errors fails to enumerate clearly the errors sought to be reviewed.”

Appellant’s first enumeration of error is not so deficient that we cannot consider her complaint. It is totally evident from the nature of the proceeding below and her argument in support of her first enumeration that part and parcel of her complaint on appeal is that a change from sole to joint custody is insupportable factually. In the third sentence of the very first paragraph of her argument she states her position that “[t]he facts of this case do not support the court’s joint custody award.” This is the whole focus of the remainder of her argument on the first enumeration. We are required to construe the Appellate Practice Act liberally “so as ... to avoid . . . refusal to consider any points raised therein, except as may be specifically referred to in [the Appellate Practice Act].” OCGA § 5-6-30.

This does not contradict the legal principles called to support by the dissent in Taylor v. State, 186 Ga. App. 113, 115-116 (366 SE2d 422) (1988). In that case the appellate court created an issue itself, the nature of which required express prior raising and ruling in the trial court. A challenge to the sufficiency of the evidence, on the other hand, may be pursued in the appellate court because it is inherent in the trial of the case. It is the issue being tried. Moreover, the question decided by the appellate court in Taylor had not been enumerated as error or encompassed in any enumeration or briefed. According to the governance of Hess Oil &c. Corp. v. Nash, 226 Ga. 706, 709 (177 SE2d 70) (1970), the court in Taylor exceeded its authority. Here the question of evidence sufficiency was embraced in the enumeration and briefed at length.

Cases in which we have refused to expand explicit enumerations involved efforts of appellants to enumerate one error and complain of something else. So, for example, in Norman v. State, 212 Ga. App. 105, 109 (4) (441 SE2d 94) (1994), the error enumerated was the failure to give a certain instruction to the jury concerning the effect of violation of the rule of sequestration by a witness. The additional error briefed but not enumerated was that the court failed to make a further inquiry about possible violation of that rule. Those were two different matters entirely.

In Loyd v. State, 202 Ga. App. 1, 2 (1) (c) (413 SE2d 222) (1991), appellant stated in his enumeration one ground, a procedural one, for the asserted error of the admission of similar transactions, i.e., failure of proper prior notice. In his brief, he also attempted to raise a substantive challenge to the similarity of the prior transaction to the one on trial. We first ruled on the merits of this substantive challenge and then, as a second basis for declining to reverse the judgment on this enumeration, stated the rule precluding enlargement.

In Worley v. State, 201 Ga. App. 704 (2) (411 SE2d 760) (1991), we refused to consider the issue of similarity of other crimes when the enumeration complained only that defendant had not been identified as the perpetrator. Also in Giles v. State, 197 Ga. App. 895, 897 (1) (400 SE2d 368) (1990), the brief included an issue not made in the enumeration. The enumeration challenged the constitutionality of a federal statute, but the Supreme Court transferred the case to the Court of Appeals. In the portion of the brief concerning that enumeration, appellant also challenged the validity of one of the affidavits used to support the trial court’s order. This was simply not included in the reach of the enumeration.

Appellant challenged the sufficiency of the evidence in Scott v. State, 193 Ga. App. 577, 579 (3) (388 SE2d 416) (1989), but in his brief he also questioned the voluntariness of his statements. We ruled that this was not included in the context of a challenge to evidence sufficiency.

In City of College Park v. Ga. Power Co., 188 Ga. App. 223 (372 SE2d 493) (1988), there were three procedural and one substantive contentions of error argued in a brief submitted to support one enumeration. The court limited its review to the one alleged error enumerated, i.e., whether the trial court had exercised its discretion with respect to the matter at issue.

None of these cases presents the situation here, where the enumeration “fairly encompass[es]” the argument made, which is “within” the enumerated error. MacDonald v. MacDonald, 156 Ga. App. 565, 566 (1) (275 SE2d 142) (1980).

Most importantly, we should not lose sight of what we are dealing with here. If, as appellant mother argues, the fundamental custody change being effected by the court’s order in this at-risk boy’s life is error as a matter of law, we should not refuse to rectify it because of a rigid standard as to what is encompassed in the scope of an enumeration of error. That elevates form over substance even when the substance is provided at length in appellant’s address to the court explaining the rationale for her position and citing legal authority to justify it.

If we were to examine it, we would have to conclude that the test for change of custody has not been met by the father. The law is that the initial award of custody is conclusive “unless there have been subsequently to the decree new and material changes in the conditions and circumstances substantially affecting the interest and welfare of the child. Though the judge is given a discretion, he is restricted to the evidence and unauthorized to change the custody where there is no evidence to show new and material conditions that affect the welfare of the child.” (Citations and punctuation omitted; emphasis in original.) Livesay v. Hilley, 190 Ga. App. 655, 656 (379 SE2d 557) (1989). Although Livesay involved a divorce decree and this case involves a consent legitimation order as the original source of custody determination, the standard is the same. See Nodvin v. Nodvin, 235 Ga. 708, 709 (221 SE2d 404) (1975); Templeman v. Earnest, 209 Ga. App. 557, 558 (434 SE2d 106) (1993).

If anything, the conditions strongly indicate that sole custody should remain in the mother. The evidence described in the majority opinion demonstrates this. In addition, not only was the child in serious developmental, emotional, and psychological trouble after somewhat over two of his formative years with the father, who had not taken appropriate or adequate steps to correct it, but the father had not provided the court-ordered support in the child’s early years. He was over $8,000 in arrears when the court ordered him to return the boy to his mother “instanter” in December 1993.

The only negative material change in circumstances found by the court affecting the mother’s legally-favored sole custody was her relationship with Earl Hardy, which resulted in contact with the child although they did not live together. Without describing how this harmed the child, the trial court found that this contact was detrimental to him.

Decided March 3, 1997.

Fitzpatrick & Camp, Barry L. Fitzpatrick, for appellant.

R. Dale Perry, John A. Kupris, for appellee.

One instance of them being together disturbed the court because it had occurred shortly after the court orally indicated at the close of the evidence that it would not prejudge the case before it received briefs but it wanted the mother not to permit contact with Hardy. The instance was the Labor Day trip to the Okefenokee Swamp and Florida, taken by the mother, the child, the child’s half-sister, and Hardy. The trip was taken because it had long been promised by Hardy to the child, who had learned about the swamp at school and wanted to see it. Although this does not excuse non-compliance if there was an order, it does not create a change in circumstances so as to warrant change from sole custody. Dr. Glazer, the professional who evaluated the parties pursuant to court order, testified that the child had made “substantial progress” after his return to his mother’s custody and that, with respect to Hardy, the child did not appear to be afraid or feel that he was a threat.

Considering the severe problems which the child developed when in the father’s custody, on the one hand, and the enormous strides to normalcy and even achievement made when in the mother’s custody, a change of custody is simply not indicated as a matter of law. There is no reasonable evidence to support the trial court’s findings that there has been (1) a change in condition or circumstances of parents or child, (2) which substantially affects the interest and welfare of the child, (3) which is material and (4) has occurred since the prior award. OCGA § 19-9-1 (b); Kennedy v. Adams, 218 Ga. App. 120, 121-122 (1) (460 SE2d 540) (1995); Lightfoot v. Lightfoot, 210 Ga. App. 400, 403 (3) (436 SE2d 700) (1993); Arp v. Hammonds, 200 Ga. App. 715, 716-717 (409 SE2d 275) (1991); Johnson v. Hubert, 175 Ga. App. 169, 170 (333 SE2d 21) (1985). Most importantly, there is no evidence to support the finding that the change from sole custody in the mother is in the best interest of the child.

       See, e.g., Norman v. State, 212 Ga. App. 105, 109 (4) (441 SE2d 94) (1994) (Beasley, J.); Loyd v. State, 202 Ga. App. 1, 2 (1) (c) (413 SE2d 222) (1991) (Beasley, J.); Worley v. State, 201 Ga. App. 704 (2) (411 SE2d 760) (1991) (Beasley, J.); Giles v. State, 197 Ga. App. 895, 897 (1) (400 SE2d 368) (1990) (Beasley, J.); Scott v. State, 193 Ga. App. 577, 579 (2) (388 SE2d 416) (1989) (Beasley, J.); City of College Park v. Ga. Power Co., 188 Ga. App. 223, 224 (372 SE2d 493) (1988) (Beasley, J.).


author: Ruffin, Judge.

text:
    A96A1842.
    WARE v. FIDELITY ACCEPTANCE CORPORATION et al.
    (482 SE2d 536)
   Ruffin, Judge.

Tony Ware sued Fidelity Acceptance Corporation, Fidelity Financial Services, Inc., Admiral Life Insurance Company and Martin L. Lane (“the defendants”) for damages stemming from the defendants’ alleged illegal repossession of Ware’s automobile. Following the close of Ware’s evidence at trial, the trial court granted a directed verdict to Fidelity Acceptance Corporation, Fidelity Financial Services, Inc. and Admiral Life Insurance Company. The trial court also dismissed Martin L. Lane from the suit for insufficient service of process. Ware appeals, and we affirm.

1. In his first, third,: and fourth enumerations of error, Ware argues that the trial court erred in not granting his “Motion for Proof of Authority of the [Defendants’] Attorney(s),” “Motion to Strike and Dismiss all the Defendants [’] Answers for Failure to Respond to Plaintiffl’s] Interrogatories and Production of Documents,” and his March 28, 1995 “Motion to Set Aside Orders.”

The record reveals no ruling by the trial court on these motions. We further find no indication that Ware objected to proceeding to trial without a ruling or made any other effort to elicit a ruling. “Accordingly, [these] enumeration[s] of error presentí ] nothing for review.” Green v. State, 194 Ga. App. 343, 345 (4) (390 SE2d 285) (1990); see also Peterson v. State, 212 Ga. App. 31, 33 (3) (441 SE2d 267) (1994) (physical precedent only) (“ Tt is the duty of counsel to obtain a ruling on his motions or objections, and the failure to do so will ordinarily result in a waiver.’ [Cit.]”); Rush v. Food Giant, 183 Ga. App. 388 (2) (358 SE2d 919) (1987).

Furthermore, even if the trial court’s failure to rule could be construed as a denial of these motions, no error occurred.

(a) “Motion for Proof of Authority.” The record reveals that attorney Charles Day represented all the defendants in this action. Claiming that Day was only authorized to act for defendant Fidelity Financial Services, Inc., Ware filed this motion requesting proof of Day’s authority to represent the other defendants.

Pursuant to OCGA § 15-19-7, “[t]he presiding judge or justice, on motion of either party and on showing reasonable grounds therefor, may require any attorney who assumes the right to appear in a case to produce or prove the authority under which he appears[.] . . . However, prima facie, attorneys shall be held authorized to represent properly any case in which they may appear.” To support his motion, Ware submitted only an affidavit stating that “[t]o the best of [his] knowledge, information and belief” attorney Day did not have authority to represent each defendant in this case. We find that such a conclusory statement from an opposing party does not provide reasonable grounds to require proof of counsel’s authority.

(b) “Motion to Strike and Dismiss all the Defendants[’] Answers for Failure to Respond to Plaintiff[’s] Interrogatories and Production of Documents.” The record reveals that the defendants filed and served verified responses to Ware’s interrogatories and requests for production. Ware now claims that those responses were “false,” thus constituting a total failure to respond. On appeal, however, Ware has pointed to no evidence supporting this allegation. Consequently, we find no merit in his arguments relating to this motion.

(c) The March 28, 1995 “Motion to Set Aside Orders.” Through this motion, Ware requested that the trial court set aside its orders denying his motion to strike the defendants’ answer for failure to provide a verification and motion for judgment on the pleadings. He argues that these orders should have been set aside because they are defective on their face and a “mere nullity.” He also complains that he was not afforded a hearing before the rulings.

Other than making conclusory statements, however, Ware has pointed to absolutely no evidence of a defect in the trial court’s orders. Furthermore, Ware’s arguments relating to the lack of a hearing are misplaced. Pursuant to Uniform Superior Court Rule (“USCR”) 6.3, “[u]nless otherwise ordered by the court, all motions in civil actions, including those for summary judgment, shall be decided by the court without oral hearing, except motions for new trial and motions for judgment notwithstanding the verdict.” (Emphasis supplied.) The trial court was not required to hold a hearing on the motion to strike and motion for judgment on the pleadings. USCR 6.3; see also Howard v. Burch, 210 Ga. App. 515 (436 SE2d 573) (1993). Accordingly, Ware’s claims involving the motion to set aside have no merit.

2. In his second enumeration of error, Ware argues that the trial court erred in denying his “Motion to Strike and Dismiss All Defendants!’] Answers” based upon the defendants’ failure to verify their answer. We find no error in the trial court’s conclusion that the defendants were not required to provide a verification. “In all cases where the plaintiff files a pleading with an affidavit attached to the effect that the facts stated in the pleading are true to the best of his knowledge and belief, the defendant shall in like manner verify any answer.” OCGA § 9-10-111. Ware, proceeding pro se, signed his original complaint and had it notarized, but included no affidavit or other statement regarding its truth. Under these circumstances, the defendants were not required to verify their answer. OCGA § 9-10-111.

The authority relied upon by Ware, Landrum v. Landrum, 159 Ga. 324 (1) (125 SE 832) (1924), overruled, Camp v. Camp, 213 Ga. 65 (97 SE2d 125) (1957), and Phoenix Air Conditioning Co. v. Al-Carol, Inc., 129 Ga. App. 386 (199 SE2d 556) (1973), is inapplicable. The Landrum decision has been overruled in pertinent part and addressed whether an affidavit attesting to the truth of the allegations in a habeas corpus petition could be received as evidence by the trial court. In Phoenix Air Conditioning, the court considered whether the form of a contested affidavit was fatally defective. In contrast, Ware presented no affidavit with his complaint. Accordingly, the trial court correctly denied his motion to strike.

Decided March 3, 1997.

3. Ware also argues that the trial court improperly denied his motion for judgment on the pleadings because the defendants “did not present any genuine issues as to the material facts in dispute.” We disagree.

“The granting of a motion for judgment on the pleadings under OCGA § 9-11-12 (c) is proper only where there is a complete failure to state a cause of action or defense. For the purposes of the motion, all well-pleaded material allegations of the opposing party’s pleading are to be taken as true, and all allegations of the moving party which have been denied are taken as false.” (Citations and punctuation omitted.) Howard v. Bank South, N.A., 209 Ga. App. 407, 409 (1) (433 SE2d 625) (1993).

In their consolidated answer, the defendants denied all allegations of wrongdoing and liability. In addition, they asserted several affirmative defenses, including insufficient service of process on Martin Lane, which formed the basis of Lane’s subsequent dismissal. Upon review of the defendants’ answer, we find no error in the trial court’s denial of Ware’s motion for judgment on the pleadings.

4. In his final enumeration of error, Ware argues that the trial court erred in directing a verdict for defendants Fidelity Acceptance Corporation, Fidelity Financial Services, Inc., and Admiral Life Insurance Company after the close of his evidence because there were “many genuine issues as to the material facts in dispute.”

On appeal, Ware specifically elected not to include the trial transcript with the record. “[Ajbsent such a transcript or proper stipulation [of facts], we must assume the evidence adduced at trial supports the trial court’s evidentiary determination and affirm the order granting [the defendants’] motion for directed verdict. [Cit.]” Waddy v. Scottish Rite Children’s Medical Center, 221 Ga. App. 760, 761-762 (1) (472 SE2d 702) (1996). Accordingly, Ware’s final enumeration of error has no merit.

Judgment affirmed.

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

Tony L. Ware, pro se.

Day & Royal, Charles T. Day III, for appellees.

       In his brief, Ware refers the court to “ ‘Exhibit E5’ at Index No. 33 Motion to Strike pages 207-208 and attachments.” We can locate no “Exhibit E5” or other attachments at or around pages 207-208 in the record.


text:
    A96A2327.
    DAUGHTRY v. THE STATE.
    (482 SE2d 532)
   Johnson, Judge.

A jury found Roger Daughtry guilty of criminal damage to property. This is an out-of-time appeal from the judgment entered on that verdict.

1. Daughtry asserts the trial court abused its discretion by not granting him a continuance to allow him the opportunity to secure counsel. Daughtry retained counsel soon after he was arrested in connection with an incident in which he damaged a 1985 Thunderbird automobile with a weight-lifting bar. Soon after the indictment was returned, counsel wrote a letter notifying the clerk of the court that Daughtry no longer wanted his services and was adamant in his desire to represent himself in this matter. This letter was followed by a formal motion to withdraw as counsel. At the arraignment, held on November 10, 1993, the court considered counsel’s motion to withdraw. The trial judge explained to Daughtry that he was taking a substantial risk in representing himself, and asked repeatedly whether it was, in fact, Daughtry’s desire to represent himself. Daughtry stated that he wanted a fast and speedy trial and was firm in his resolve to proceed without counsel. The judge reiterated the dangers of self-representation, explained the procedure for appointment of counsel in the event Daughtry should change his mind and told him that jury trials were scheduled for January 18, 1994. Counsel’s motion to withdraw was granted. When the case was called for trial on January 18, Daughtry announced that his attorney, the same counsel who had been allowed to withdraw at his request two months earlier, had died and that he needed time to make arrangements with other counsel. In reliance on Daughtry’s assurance that he had talked to someone the day before, the case was continued to the next term. On April 25, 1994 Daughtry told the court that he was going to represent himself, but that he had an arrangement by which he could consult an attorney by telephone if he needed advice. The following morning, when the trial was to begin, Daughtry announced that he was not ready and asked that the case be continued to allow him to get an attorney. Daughtry cites the denial of his request as error.

“The grant or denial of a continuance, including on grounds of absence of counsel, is within the discretion of the trial court and will not be disturbed unless it clearly appears the trial court abused that discretion. Denial of continuance may be proper where defendant negligently failed to employ counsel promptly or where it appears he is using the tactic for delay.” (Citations and punctuation omitted.) Tinker v. State, 218 Ga. App. 792, 794 (1) (b) (463 SE2d 368) (1995). See Hobson v. State, 266 Ga. 638 (2) (469 SE2d 188) (1996). Compare Hasty v. State, 215 Ga. App. 155 (450 SE2d 278) (1994). It is clear from a review of the record in this case that Daughtry made all of the decisions regarding representation and was able to effect those decisions. The day before the trial of the case, he announced he was ready to proceed. But on the morning of trial, five months after discharging his attorney and after having been granted a three-month continuance, Daughtry wanted the case delayed so that he could engage an attorney. The trial court did not abuse its discretion in denying the second motion for continuance.

Decided March 3, 1997.

Billy M. Grantham, for appellant.

Roger Daughtry, pro se.

J. Brown Moseley, District Attorney, Victoria Spear-Darrisaw, Assistant District Attorney, for appellee.

2. Acknowledging in his brief that in representing himself Daughtry had “a fool for a client,” he now argues he was denied effective assistance of counsel because his own performance was deficient. “ ‘When a criminal defendant elects to represent himself... he will not thereafter be heard to assert a claim of ineffective assistance of counsel with respect to any stage of the proceedings wherein he was counsel.’ [Cit.]” Williams v. State, 192 Ga. App. 317, 319 (3) (384 SE2d 877) (1989). Because Daughtry waived his right to be represented by counsel and cannot now be heard to complain of ineffective assistance, there is no reason to accede to his invitation to remand the case to the trial court for consideration of the effectiveness of his own representation.

Judgment affirmed.

McMurray, P. J., and Ruffin, J., concur.