text:
    A98A0714.
    ROVEMA VERPACKUNGSMASCHINEN GmbH et al. v. DELOACH et al.
    (500 SE2d 647)
   Johnson, Judge.

We granted the interlocutory application of Rovema Verpackungsmaschinen, GmbH (“Rovema GmbH”), a German corporation. Rovema GmbH contends the trial court erred in denying its motion to dismiss Robert and Charlise Deloach’s motion for entry of default judgment against it based on lack of service. We agree.

Defendant Rovema Corporation (“Rovema Corp.”) is a Georgia corporation and a wholly owned subsidiary of Rovema GmbH. Defendant Rovema Packaging Machines, L.P. (“Rovema L.P.”) is a Georgia limited partnership owned by Rovema Corp. and a German citizen. Robert Deloach was injured by a machine manufactured by Rovema GmbH and sold by Rovema Corp. He and his wife brought suit against Rovema GmbH, Rovema L.P., and Rovema Corp. In their complaint, the Deloaches acknowledged that Hans Michael Kraus is the registered agent for Rovema Corp. and Rovema L.P, but that the registered agent for Rovema GmbH was unknown.

The Deloaches served Rovema Corp. and Rovema L.P. by serving Kraus. Both Rovema Corp. dnd Rovema L.P. filed answers. The Deloaches also attempted to serve Rovema GmbH by serving Kraus. Rovema GmbH, however, did not answer. The Deloaches moved for default judgment against Rovema GmbH. Rovema GmbH specially appeared and moved to dismiss the Deloaches’ motion for default judgment or, in the alternative, to open the default on the basis that it had not been served. The trial court denied the motion to dismiss and granted Rovema GmbH’s motion to open the default. Essentially, the trial court ruled that service of process on a foreign corporation may be perfected via service on the registered agent of a wholly owned domestic subsidiary of that foreign corporation, even though the subsidiary is not otherwise an agent for service of process of the foreign-national parent corporation. Rovema GmbH appeals. We reverse.

It is undisputed that Rovema GmbH has no agent for service of process in Georgia and has never directed Rovema Corp., Rovema L.P. or Kraus to accept service of process on its behalf. However, the Deloaches contend that service upon the registered agent for Rovema L.P. and Rovema Corp. effected service on Rovema GmbH.

Georgia law directs that when an action is brought against a foreign corporation which is “doing business and having a managing or other agent, cashier, or secretary within this state,” service is made “to such agent, cashier, or secretary or to an agent designated for service of process.” OCGA § 9-11-4 (d) (2); see also OCGA § 14-2-504. However, OCGA § 9-10-94 directs that foreign corporations not registered to do business but nonetheless subject to Georgia’s long-arm jurisdiction “may be served with a summons outside the state in the same manner as service is made within the state by any person authorized to make service by the laws of the state, territory, possession, or country in which service is made or by any duly qualified attorney, solicitor, barrister, or the equivalent in such jurisdiction.” The Deloaches attempted to serve Rovema GmbH as a corporation doing business in Georgia under OCGA § 9-11-4 (d).

There apparently is no Georgia appellate decision regarding whether Georgia law permits service upon the agent of a wholly owned domestic subsidiary of a foreign corporation — an agent of the subsidiary’s agent. However, a federal case applying Georgia law decided by the U. S. District Court for the Northern District of Georgia is virtually identical. In May v. Volkswagen of America, 125 FRD 521 (N.D. Ga. 1989), the plaintiffs sued the German parent corporation, Volkswagenwerk Aktiengesellschaft (VWAG), and its wholly owned subsidiary, Volkswagen of America, Inc. (VWA). The summons and complaint were served on CT Corporation System, the authorized agent for service for VWA. CT Corporation and VWAG averred that VWAG had never authorized CT Corporation to receive process on its behalf. VWAG did not answer the complaint, and the plaintiffs moved for entry of default judgment. As here, the foreign parent corporation moved to dismiss the plaintiffs’ motion for default judgment, arguing that there was no valid service of process.

The district court cited Spence v. Manufacturers Finance Acceptance Corp., 47 Ga. App. 356, 358 (3) (170 SE 533) (1933), as the only Georgia case addressing the issue. In Spence, this Court held that service upon an agent of an agent was insufficient, “unless the agent served was designated such agent by an agent of the corporation himself expressly or impliedly authorized by his principal to make such appointment.” Id. at 359. As in May, no demonstration has been made in the present case that Rovema GmbH designated Rovema Corp., Rovema L.R or Kraus to act as its agent for service of process.

The Deloaches argue that Spence is antiquated and that the U. S. Supreme Court more recently found this type of service of process to be adequate in Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U. S. 694 (108 SC 2104, 100 LE2d 722) (1988). This same argument was decided adversely to the Deloaches in May, where the district court observed that a critical element in the Schlunk decision was that the Illinois long-arm statute authorized the plaintiff to serve the foreign parent corporation by substituted service on the domestic subsidiary without sending documents to the foreign country where the parent corporation resided (Schlunk, 486 U. S. at 706). However, relying on Spence, the district court concluded that this type of service was inadequate under Georgia law. May, supra at 522.

We find the May decision persuasive. Neither Georgia’s general service of process statute (OCGA § 9-11-4) nor the corporate service statute (OCGA § 14-2-504) authorizes service on an agent of a domestic subsidiary as constituting proper service on the foreign parent corporation. The Deloaches could have served Rovema GmbH pursuant to the Hague Convention or pursuant to any other acceptable means under Georgia law (e.g., serving the registered agent of Rovema GmbH or its corporate secretary at its principal office pursuant to OCGA § 14-2-504), but failed to do so. Thus, the trial court erred in denying Rovema GmbH’s motion to dismiss the Deloaches’ motion for entry of default judgment.

Decided March 31, 1998

Reconsideration denied April 14, 1998

Hunter, Maclean, Exley & Dunn, Robert S. Glenn, Jr., Robert E. Spears, Jr., for appellants.

Cletus W. Bergen II, for appellees.

Judgment reversed.

Birdsong, P. J., and Smith, J., concur.


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A98A0863.
    DEPARTMENT OF HUMAN RESOURCES v. MITCHELL.
    (501 SE2d 508)
   Eldridge, Judge.

On April 5, 1995, the Department of Human Resources (“DHR”) filed a petition pursuant to OCGA § 19-11-1 et seq. alleging that the appellee-defendant, Eldridge F. Mitchell III, was the father of Jonathan Curtis Rewis and seeking both reimbursement of public assistance previously paid in support of the minor child and future child support payments. Mitchell has never been married to the minor child’s mother, and his name does not appear on the minor child’s birth certificate. Mitchell filed a timely answer denying paternity.

DHR filed a motion to compel DNA blood testing pursuant to OCGA § 19-7-45. After a hearing, the trial court issued an order compelling Mitchell to submit to a blood test for the purpose of determining paternity. At Mitchell’s request, the trial court issued a certificate of immediate review on such order. However, the interlocutory appeal was denied by this Court.

After Mitchell failed to appear for his court-ordered paternity test, DHR filed a complaint for contempt on February 24, 1997. In response to the motion for contempt, Mitchell raised both due process and equal protection violations and a laches defense; both of these defenses, along with a statute of limitation defense, were raised previously in his answer.

DHR’s motion for contempt was heard by the trial court, and after considering the evidence, arguments, briefs of counsel, and, by agreement, the defenses raised by Mitchell, the trial court found that DHR’s claims were barred by the doctrine of laches and dismissed the petition. This Court then granted DHR’s discretionary appeal.

1. DHR’s first enumeration of error alleges that the trial court erred by improperly applying the equitable defense of laches in this action. We agree.

DHR’s cause of action is brought pursuant to the statutory authority of the Child Support Recovery Act, OCGA § 19-11-1 et seq. Under such act “[t]he payment of public assistance to or on behalf of a child creates a debt due and owing the state by the parent or parents responsible for the support of the child.” OCGA § 19-11-5. “By accepting public assistance for or on behalf of a child . . ., the recipient shall be deemed to have made an assignment to the department of the right to any child support owed for the child. The department shall be subrogated to the right of the child or children or the person having custody to initiate any support action existing under the laws of this state and to recover any payments ordered by the courts.” OCGA § 19-11-6 (a). Further, OCGA § 19-11-8 (a) places a statutory duty on DHR to take action under the Child Support Recovery Act, the child support statutes, and other appropriate state and federal statutes to assure that a child who has applied for public assistance is supported by the responsible parent, when it appears that the child has been abandoned by one or both parents or that the responsible parent has failed to provide support to the child.

Not only is DHR proceeding under a specific statutory scheme, the underlying right that DHR seeks to enforce is statutory in nature, i.e., the right of an illegitimate child to receive support from its father upon proof and determination of paternity. At common law, the father of an illegitimate child had no duty to support his illegitimate offspring; the illegitimate child was the legal responsibility of its mother. American Mut. &c. Ins. Co. v. Hogan, 91 Ga. App. 891 (87 SE2d 661) (1955). However, statutorily in Georgia, “[i]t is the joint and several duty of each parent of a child born out of wedlock to provide for the maintenance, protection, and education of the child until he reaches the age of majority, except to the extent that the duty of one parent is otherwise or further defined by court order.” OCGA § 19-7-24. “ ‘The duty of the father of an illegitimate child to support such child is not created by the judicial determination of paternity. That determination is merely a procedural prerequisite to the enforcement of the duty by legal action. The father’s duty to support his child arises when the child is born.’ [Cit.]” (Emphasis supplied.) Weaver v. Chester, 195 Ga. App. 471, 472 (393 SE2d 715) (1990). “[0]nce paternity is legally established, the father may be required to pay back support for past expenditures made on behalf of the child.” Hughes v. Dulock, 207 Ga. App. 492, 493 (428 SE2d 406) (1993). Further, the right of a child to support belongs to the child and cannot be waived by a parent. Worthington v. Worthington, 250 Ga. 730 (301 SE2d 44) (1983); see Nelson v. Mixon, 265 Ga. 441, 442 (457 SE2d 669) (1995).

When a putative father fails to voluntarily support an illegitimate child, the determination of paternity is a condition precedent to court imposition of support. A paternity proceeding was also unknown at common law and is a creature of statute. OCGA § 19-7-40 et seq. The authority for DHR to bring a paternity action in the name of and for the benefit of a child is given in OCGA § 19-7-43 (a) (4). OCGA §§ 19-7-43 (d) and 19-7-45 mandate that the court order genetic tests to determine paternity unless “good cause” is shown why the genetic tests should not be conducted.

Therefore, this action brought by DHR is one of law and not of equity. “The doctrine of laches is a purely equitable defense and is not applicable to a complaint for the enforcement of a legal right.” Stuckey v. Storms, 265 Ga. 491 (458 SE2d 344) (1995); Jones v. Tri-State Elec. Coop., 212 Ga. 577, 582 (3) (94 SE2d 497) (1956).

Further, to prevail on a plea of laches, it is essential that the pleading party prove harm caused him by the delay. In this case, there is no evidence of record to show that Mitchell was prejudiced by DHR’s failure to bring this cause of action earlier. If it is proven that Mitchell is the father of the child, his duty of support would be no greater than if this suit had been brought at the time of the child’s birth. Moreover, if a defense of laches was allowed in this type of action, it would encourage a putative father to deny paternity and attempt to delay the bringing of an action until such defense could be asserted, and he could thereby escape his statutory obligation of support.

Decided March 31, 1998

Reconsideration denied April 14, 1998

Thurbert E. Baker, Attorney General, Jeffrey L. Milsteen, Deputy Attorney General, William C. Joy, Dennis R. Dunn, Senior Assistant Attorneys General, Katherine S. Davis, Assistant Attorney General, for appellant.

Dwayne H. Gillis, for appellee.

2. Our holding in Division 1 renders it unnecessary to address DHR’s remaining enumeration of error.

Judgment reversed.

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

       This case can be distinguished from Haddon v. Dept. of Human Resources, 220 Ga. App. 338 (469 SE2d 434) (1996). In Haddon, this Court sought to uphold a settlement agreement between the mother and the alleged putative father compromising and settling a pending abandonment warrant and any future actions regarding paternity and support of the minor child. It is noteworthy that this settlement occurred in 1978, prior to the 1980 enactment of OCGA § 19-7-45, which authorizes blood tests in paternity actions. Haddon never admitted paternity, and the mother never sought to have paternity legally established. In the settlement agreement, the mother admitted that paternity was disputed. The mother and Haddon agreed that Haddon would pay the mother a lump sum of $4,400 in return for her release from all present and future claims to establish paternity and for child support. The mother also agreed to indemnify Haddon and hold him harmless from any action initiated by her or anyone else rising out of the birth of the child. A petition to compromise a disputed claim was then filed in probate court. The guardian ad litem, who was appointed to represent the minor child, approved the agreement, and the probate court entered an order allowing the mother to compromise the claim and incorporating the terms of the settlement. The order of the probate court was never appealed. The mother never moved to set aside the agreement and judgment of the probate court. In 1994, 16 years after entering into the agreement with Haddon, the mother, who had never received public assistance for the minor child, made an application to DHR for child support enforcement services and thereby assigned her rights to child support to DHR. DHR filed a petition for future child support only. Under the particular facts of Haddon, this Court held that to allow the mother to pursue a claim through DHR that had long been settled and approved by court order would “violate the time-honored and practical principle of finality of settlements and court orders.” Haddon v. Dept. of Human Resources, supra at 340.
      Further, other states have specifically held that laches is not available as a defense in a paternity action because it is an action at law. See, e.g., Cortland County Dept. of Social Svcs. v. Thomas, “ZZ", 534 NYS2d 720 (A.D. 3 Dept. 1988); McNulty v. Heitman, 600 SW2d 168 (Mo. App. E.D. 1980).


author: Beasley, Judge.

text:
    A98A0076.
    WOLF PROPERTIES, INC. v. RISSUS CORPORATION et al.
    (501 SE2d 597)
   Beasley, Judge.

Plaintiffs initiated this dispossessory proceeding against defendant/appellant in the State Court of Cobb County, seeking possession of leased premises, approximately $50,000 in past due rent, and other relief. Before the day of trial, defendant’s attorney orally requested to have the case tried by a 12-person jury. Defendant appeared pro se at trial and renewed the request. The court denied it on the ground that defendant had not made this demand in writing prior to the commencement of trial. A six-person jury returned a verdict in favor of plaintiffs. Defendant contends on appeal that the denial of its request violated its right to a 12-person jury.

As appellant acknowledges, the controlling statute is OCGA § 15-12-122, composed of subsections (a) (1), (a) (2), and (b). Under subsection (b), and other statutory and constitutional provisions, there is a right to a 12-person jury in cases tried in superior court in the absence of a waiver or stipulation to the contrary. See Hague v. Pitts, 262 Ga. 777 (425 SE2d 636) (1993). Subsection (a) (1) provides for six-person juries in state courts, but subsection (a) (2) allows: “In all civil actions in the state courts in which the claim for damages is greater than $10,000.00, either party may demand in writing prior to the commencement of the trial term that the case be tried by a jury of 12. If such a demand is made, the judge shall follow the procedures for superior courts of subsection (b) of this Code section.” OCGA § 15-12-123 governs demands for panels of competent and impartial jurors from which to strike a jury.

Decided April 14, 1998.

George K. Wolfes, Jr., pro se.

Beloin & Associates, Frederic S. Beloin, B. Louise Bugg, for appellees.

It is uncontested that defendant did not file a timely written demand. Compare Super Discount Markets v. Kubitz, 197 Ga. App. 224 (398 SE2d 252) (1990); B. C. B. Co. v. Troutman, 200 Ga. App. 671 (409 SE2d 218) (1991). Under the plain language of the statute, a state court is not required to accommodate an oral request.

The court’s judgment is inescapably correct. On motion by appellee, a $1,000 penalty against appellant is assessed for frivolous appeal. See Court of Appeals Rule 15 (b).

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.

       This proceeding was instituted in February 1995. The case was tried in 1996. Effective July 1, 1995, OCGA §§-15-12-122 and 15-12-123 were amended. Insofar as this case is concerned, there is no material difference between the old and new law.


text:
    A98A0133.
    BEMAN et al. v. KMART CORPORATION.
    (501 SE2d 580)
   Beasley, Judge.

Blind for many years, Dorothy Beman was exiting a rest room at a Kmart store with her right hand on her adult daughter’s shoulder when she put out her left hand to catch the door automatically closing behind her. She mistakenly placed her fingers in the hinge-side jamb, which were crushed by the heavy door. She and her husband sued Kmart Corporation, claiming the door was defective in that it closed too quickly and forcefully. The court granted Kmart summary judgment.

1. Beman failed to file a separate enumeration of errors and to make any citations to the record in her brief. Under the rules of this Court, typically “an appeal will be dismissed for failure to file separate enumerations of error.” The rationale is that the appellant has failed to perfect the appeal. “Assignments of error in a brief timely filed can not take the place of the required enumeration of errors. [Cit.J”

Similarly, “this Court is authorized under its rules to dismiss any appeal for failure to cite to the record.” “Each enumerated error shall be supported in the brief by specific reference to the record or transcript. In the absence of such reference, the Court will not search for or consider such enumeration.”

Although dismissal sometimes follows only after an appellant fails to comply with an order of this Court to file proper pleadings, “an order to follow the rules is not a prerequisite to their enforcement or to unfavorable consequences of non-compliance.”

Nevertheless, this Court has discretion to consider the merits of an appeal even though a party has not complied with these rules. We exercise our discretion to consider the merits of this appeal because the record is small, Kmart’s brief covers most of the inadequacy in appellant’s brief, the error enumerated is evident, and Kmart has not moved to dismiss the appeal.

2. The plaintiff’s first burden in a premises liability case is to show the premises were defective or hazardous. Beman has submitted evidence showing the heavy door closed quickly and forcefully and had struck other patrons as they exited. She has met the burden of showing some evidence from which a jury could find a defect.

3. But this defect is not what caused her injuries. Her injuries did not arise from the door forcefully striking her and propelling her forward; they arose from her fingers being crushed in the door jamb. Beman testified that while passing through doorways she always placed her hand behind her to catch the door and to balance or brace herself. This time she mistakenly stuck her fingers between the door and its hinge-side frame because she thought the door hinges were on the other side and because she thought she was farther through the door opening than she was. The allegedly defective condition of the door did not cause her to place her fingers there. She further admitted that her fingers in that position would have been injured whether the door closed fast or slow. In response to Kmart’s summary judgment motion, Beman testified by affidavit that the door closed so hard and fast that it caused her hand to slide into the jamb. This contradicted her deposition testimony that she mistakenly stuck her fingers into the jamb. Because she offered no explanation for the contradiction, the testimony is construed against her.

Robinson v. Kroger Co. recently held that to withstand summary judgment a plaintiff must disprove her negligence “after it has been established or assumed the defendant had actual or constructive knowledge of the hazard, and the defendant presents evidence that the plaintiff’s injuries were proximately caused either by the plaintiff’s voluntary negligence, i.e., plaintiff’s intentional and unreasonable exposure of self to a hazard of which plaintiff has knowledge, or by the plaintiff’s casual negligence, i.e., the plaintiff’s failure to exercise ordinary care for personal safety.”

The evidence is plain, palpable, and undisputed that Beman failed to exercise ordinary care when she placed her fingers between the door and its hinge-side jamb. She herself testified this was a mistake, for no reasonable person would place a hand there to stop the door from closing.

A landowner is liable to invitees “for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.” The causal link between the defective condition and the injury is essential to recovery. Its absence mandates summary judgment. The court did not err in granting summary judgment.

Judgment affirmed.

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

Decided April 14, 1998.

Pedro Quezada, for appellants.

Chambless, Higdon & Carson, Marc T. Treadwell, for appellee.

       See Court of Appeals Rules 7 and 22; see also OCGA § 5-6-40.

        Daniel v. State, 228 Ga. App. 634, n. 1 (492 SE2d 542) (1997); see Lewis v. State, 226 Ga. App. 344 (487 SE2d 533) (1997) (motion to dismiss appeal granted for failure to file separate enumeration of errors).

        Benfield v. State, 224 Ga. 139 (160 SE2d 398) (1968).

       Id.

        Rolleston v. Cherry, 226 Ga. App. 750, 753 (1) (b) (487 SE2d 354) (1997); see Lewis, supra.

       Court of Appeals Rule 27 (c) (3) (i).

       See Moss v. Rutzke, 223 Ga. App. 58, 59 (1) (476 SE2d 770) (1996); Wordu v. State, 216 Ga. App. 552, 553 (1) (455 SE2d 101) (1995).

        Lewis, supra, 226 Ga. App. at 346 (Beasley, J., concurring specially); see Court of Appeals Rule 7.

       See Rolleston, supra, 226 Ga. App. at 753 (merits considered despite failure to make record citations); Poole v. Estfan, 206 Ga. App. 510, 511 (1) (426 SE2d 61) (1992) (merits considered despite failure to make record citations); Fulton-DeKalb Hosp. Auth. v. Metzger, 203 Ga. App. 595, 596 (1) (417 SE2d 163) (1992) (merits considered despite failure to file enumeration of error).

       See Smith v. Top Dollar Stores, 129 Ga. App. 60, 64 (3) (198 SE2d 690) (1973).

        Johnston v. Grand Union Co., 189 Ga. App. 270, 271 (1) (375 SE2d 249) (1988); see Robinson v. Kroger Co., 268 Ga. 735, 748 (2) (b) (493 SE2d 403) (1997).

        Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986).

       268 Ga. at 748.

       Compare Murphey v. Ellis, 81 Ga. App. 743, 748 (59 SE2d 774) (1950) (no contributory negligence because “injury did not come . . . from any jamb or opening into which [the door] swung”).

       OCGA § 51-3-1.

        Keaton v. A.B.C. Drug Co., 266 Ga. 385, 387 (2) (467 SE2d 558) (1996).

       See Culberson v. Lanier, 216 Ga. App. 686, 687 (1) (455 SE2d 385) (1995) (lack of evidence showing causal connection between injuries and absence of stair rail requires summary judgment); Boyd v. Garden Center, 197 Ga. App. 198, 200-201 (3) (397 SE2d 626) (1990) (summary judgment where no evidence showed causal connection between injury and defects in stairway); Brown v. RFC Mgmt., 189 Ga. App. 603, 604-605 (376 SE2d 691) (1988) (no evidence showing causal connection between plaintiff’s fall and unrepaired premises required summary judgment).


text:
    A98A0160.
    ANGELL et al. v. HART et al.
    (501 SE2d 594)
   Beasley, Judge.

When they were returned to regular patrol, three police officers (Lisa Angelí, Mike Earl and Brett Evans) lost the ten percent pay increase they had enjoyed while working in the Special Investigation Unit (“SIU”) of the City of Warner Robins police force. After an evidentiary hearing, an administrative law judge recommended the increased rate of pay be reinstated and back pay be awarded. The matter was appealed to the city council, which unanimously overturned the decision. The superior court granted the officers’ petition for certiorari but affirmed. In this discretionary appeal, the issue is whether the court considered each of the certiorari grounds raised by the officers.

1. Their first and third enumerations of error are that the court failed to consider whether the council’s decision was supported by substantial evidence and whether it was contrary to the city’s policies and procedures or federal constitutional law. The court’s decision did address these matters.

Although the court focused primarily on the due process clause of the Fourteenth Amendment, which was the primary underlying basis for the officers’ brief below, the court reviewed the record in a detailed ten-page opinion and articulated the evidence supporting the council’s decision. The court further addressed the charter and code of the city of Warner Robins and both the equal protection and due process clauses of the United States Constitution. Thereafter it summarized: “Based on the evidence presented and the argument and citation of authority, the Court concludes that there exists substantial evidence to sustain the actions of the Respondents in reversing the decision of the administrative law judge. OCGA § 5-4-12 (b). Whatever inequities may exist in this matter, there have been no violations of Petitioners’ rights under the Fourteenth Amendment of the United States Constitution or under the charter and code of the City of Warner Robins.”

Even if the court had not expressly addressed these matters, its judgment overruling the certiorari should be affirmed if it is correct for any reason. The scope of review of the superior court’s decision was “limited to all errors of law and determination as to whether the judgment or ruling below was sustained by substantial evidence.” As judicially construed, “in Georgia the substantial-evidence standard is effectively the same as the any-evidence standard.”

Evidence supported the council’s decision. For example, in creating SIU the city stated the pay increase for assigned officers would continue only while they were assigned to SIU. The assignment of two of the officers was referred to as a transfer with specialist pay, which implied the temporary nature of the pay increase. The captain of SIU testified he told all new assignees the pay increase lasted only as long as the assignment. As explained by the court, the city simply wanted to supplement the pay of those in SIU based on the special nature of the work or the unique demands of the job, which would continue only as long as the assignment continued.

The law also supported the council’s decision. OCGA § 36-34-2 (2) gave the city the power to define and alter the compensation of city employees.

“An appellate court reviewing the decision of an administrative board may not substitute its discretionary judgment for that of the board. [Cit.]” Because there was evidence that the temporary nature of the pay increase was understood or at least implied, reducing the pay of the three officers upon their reassignment did not violate any charter or ordinance allowing demotions only for cause.

2. In their appellate brief, the officers argue that the court failed to consider whether the council decision violated the due process provision of the Georgia Constitution. This was not raised in the petition for certiorari nor presented by brief to the trial court. The petition focused only on the United States Constitution and the city charter and code. By statute, “[n]o ground of error shall be considered which is not distinctly set forth in the petition.” And “[i]ssues ‘presented for the first time on appeal furnish nothing for us to review, for this is a court for correction of errors of law committed by the trial court where proper exception is taken[. 0]ne may not abandon an issue in the trial court and on appeal raise questions or issues neither raised nor ruled on by the trial court.’ [Cit.]”

3. The second enumeration is that the court erred in holding the Fourteenth Amendment afforded no substantive due process protection and in holding procedural due process was present. The only complaint about procedural due process is the court’s alleged failure to address the sufficiency of the evidence. As stated above, the court did address this issue.

Decided April 14, 1998.

Williams, Sammons & Sammons, George L. Williams, Jr., Walter G. Sammons, Jr., for appellants.

James E. Elliott, Jr., for appellees.

The substantive due process issue is controlled by McKinney v. Pate, which points out the “Supreme Court precedent demonstrates that an employee with a property right in employment is protected only by the procedural component of the Due Process Clause, not its substantive component.”

The officers contend McKinney applies only to cases brought under 42 USC § 1983 (1988). Nothing in McKinney so limits it, and subsequent federal decisions not involving § 1983 have applied McKinney to dismiss claims of substantive due process. It was not error to hold the Fourteenth Amendment afforded the officers no substantive due process protection for their state employment.

Judgment affirmed.

Pope, P. J, and Ruffin, J., concur.

        Zachry v. State, 81 Ga. App. 637, 638 (59 SE2d 555) (1950).

       OCGA § 5-4-12 (b).

        Emory Univ. v. Levitas, 260 Ga. 894, 897 (1) (401 SE2d 691) (1991); see City of Atlanta Govt. v. Smith, 228 Ga. App. 864, 865 (1) (493 SE2d 51) (1997).

        City of Atlanta v. Lambright, 205 Ga. App. 558, 561 (3) (423 SE2d 265) (1992).

       See Ga. Const, of 1983, Art. I, Sec. I, Par. I.

       OCGA § 5-4-12 (a).

        Freeland v. State, 223 Ga. App. 326, 327 (2) (477 SE2d 633) (1996).

       20 F3d 1550 (11th Cir. 1994).

       Id. at 1560; see Cleveland Bd. of Ed. v. Loudermill, 470 U. S. 532, 539-541 (105 SC 1487, 84 LE2d 494) (1985); Bishop v. Wood, 426 U. S. 341, 349-350 (96 SC 2074, 48 LE2d 684) (1976).

       See DeKalb Stone v. County of DeKalb, 106 F3d 956, 959-960 (11th Cir. 1997); Nat. Assoc. of Govt. Employees v. Barrett, 968 FSupp. 1564, 1575, fn. 17 (N.D. Ga. 1997).


author: Andrews, Chief Judge.

text:
    A98A0242.
    HARPER v. THE STATE.
    (501 SE2d 591)
   Andrews, Chief Judge.

Jeremy Harper appeals from denial of his motion for new trial following his conviction of robbery by force and intimidation, OCGA § 16-8-40, contending that the evidence was insufficient; his trial counsel ineffective; and the court’s charge was erroneous. We affirm.

1. Harper contends denial of his motion for new trial on the general grounds was error, thereby raising sufficiency of the evidence. Stinson v. State, 185 Ga. App. 543 (364 SE2d 910) (1988); Towns v. State, 185 Ga. App. 545 (365 SE2d 137) (1988).

“‘On appeal, the evidence must be viewed in the light most favorable to the verdict and the appellant no longer enjoys the presumption of innocence; moreover, on appeal this court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. (Cit.)’ [Cit.]” Williams v. State, 217 Ga. App. 636, 638 (3) (458 SE2d 671) (1995).

So viewing the evidence, it was that Bennett went to a laundromat the afternoon of December 14, 1993. She had her wallet which contained $5 in change, a $20 bill and a $10 bill. An automobile accident occurred across the street from the laundromat at 3:00 p.m. and was being investigated as Bennett took her clothes out of her car and into the laundromat, which she noticed was empty. She placed her wallet on an adjacent washing machine as she was loading her items into a washer.

Harper came up to her and asked about a telephone. She inquired if he had been involved in the wreck, and he said he had not, but a friend had been. As she continued loading her washer, Harper came up to her with his hand in his pocket like he had a weapon and told her to “give it up.” She said “excuse me,” and Harper repeated the statement. She grabbed her wallet and ran to the other side of the washers. Harper then told her that he was going to count to five and “you know what I’m going to do.” She was preparing to run out the front door, which was the only door in the laundromat, when Harper pushed her down on the floor and grabbed her wallet. Bennett then ran outside and yelled at the officers investigating the wreck.

Deputy Williams spoke to Bennett who told him she had been robbed and pointed at Harper, who was walking out of the laundromat. The deputy knew Harper from patrolling the area. Harper was placed in a patrol car, and Deputy Williams went in the laundromat and found Bennett’s wallet inside the front door and coins and papers scattered on the floor. A $20 bill was found in Harper’s front pants pocket, along with three pawn tickets. Two of the tickets reflected pawns at 10:10 a.m. and 1:40 p.m. that day for a total of $41.

Harper testified at trial that he had been to the pawn shop and stopped at the laundromat to watch the wreck. As he was leaving, an unidentified woman who was also in the laundromat told him that he dropped some money inside. As he went back to investigate, he saw Bennett picking up some money. They argued, but he did not touch her. When she dropped her wallet and ran out the door, he picked up the $20 bill which was then found on him by police.

The issue of which version of these events to believe, Harper’s or the State’s, was for the jury, which resolved the credibility issues in favor of the State. OCGA § 24-9-80. As noted above, we do not determine credibility, only the sufficiency of the evidence. Daras v. State, 201 Ga. App. 512 (1) (411 SE2d 367) (1991). The evidence was sufficient. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Hogan v. State, 210 Ga. App. 122 (1) (435 SE2d 494) (1993).

2. Harper argues that trial counsel was ineffective in that he did not advise him that upon conviction, he would be sentenced as a recidivist; failed to properly investigate the case and to locate and prepare witnesses; failed to file a motion to suppress; and failed to object.

“ A trial court’s finding that a defendant has not been denied effective assistance of trial counsel will be affirmed unless clearly erroneous. Here, [Harper] must overcome the strong presumption that defense counsel’s conduct falls within the broad range of reasonable professional conduct. To establish ineffective assistance of counsel, a defendant must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. The test is whether there is a reasonable probability the jury would have reached a different verdict, absent the error of counsel.’ (Citations and punctuation omitted.) Jones v. State, 217 Ga. App. 722, 723-724 (2) (458 SE2d 894) (1995).” Randolph v. State, 225 Ga. App. 324 (484 SE2d 1) (1997).

(a) Trial counsel testified that he did advise Harper of the recidivist sentencing potential, although Harper denied it. Determining the credibility of these two witnesses was a matter for the trial court’s discretion, and we do not find his ruling clearly erroneous. Randolph, supra; Jones, supra.

(b) Harper contends that failure to file a motion to suppress items found on his person, including the $20 bill and the pawn tickets, was error.

This Court will not presume a deficiency from the mere failure to file standard pretrial motions, including a motion to suppress. Edwards v. State, 224 Ga. App. 332, 334 (3) (480 SE2d 246) (1997).

Further, Harper testified that he had been to the pawn shop, and the tickets buttressed his contention that the money at issue was from the pawns. Therefore, even if a deficiency had been shown by not filing the motion, Harper cannot show that such a motion would have been successful since he relied on the evidence as part of his case and it was properly seized pursuant to his arrest. Peavy v. State, 262 Ga. 782 (425 SE2d 654) (1993).

(c) Harper contends that counsel’s failure to locate the woman he said was also present in the laundromat was ineffective assistance. Again, however, counsel’s testimony as to the description he was given is at odds with Harper’s, and the court did not err in crediting counsel’s version. According to him, only a very general description was given which would fit most of the women in Augusta, and Harper did not provide any location for the witness other than a large apartment complex.

There has been no showing of ineffective assistance in this regard. Randolph, supra; Jones, supra at 724 (2).

(d) The remaining claims of ineffectiveness are grounded in matters of trial tactics and strategy and do not provide a basis for finding counsel lacking. Such tactical decisions do not equate with ineffective assistance of counsel. Hammond v. State, 264 Ga. 879, 882 (4) (452 SE2d 745) (1995); Riser v. State, 222 Ga. App. 348, 349 (474 SE2d 632) (1996); Williams v. State, 218 Ga. App. 785, 788 (3) (463 SE2d 372) (1995).

3. Harper’s final enumeration is that the court erred “in failing to charge [Harper’s] sole defense of claim of right.”

Trial counsel filed written requests to charge on the principles of claim of right (OCGA § 16-8-10) and mistake of fact (OCGA § 16-3-5). Although no charge conference is contained in the transcript, the court noted on the mistake of fact request that the concept was covered by the pattern charge and on the claim of right request that it was withdrawn. Additionally, after the charge was given, the court inquired if counsel had objections to it and defense counsel said no. The court fully charged the defense of mistake of fact, the necessity for the State to prove malicious intent, and on affirmative defenses by which an accused admits an act but seeks to justify, excuse or mitigate it.

Nonetheless, appellate counsel contends that since claim of right was Harper’s “sole defense,” it was incumbent upon the trial court to charge, even without a request, based on McRoy v. State, 131 Ga. App. 307 (205 SE2d 445) (1974).

This argument is without merit since trial counsel also requested a charge on mistake of fact which was given in substance.

“ ‘The charge of the jury must be taken as a whole and each part thereof considered in connection with every other part of the charge. See, Marchman v. State, 129 Ga. App. 22 (3) (198 SE2d 425); Hightower v. State, 135 Ga. App. 275, 277 (217 SE2d 636).’ Grant v. State, 136 Ga. App. 351 (1), 352 (221 SE2d 210).” Leigner v. State, 213 Ga. App. 871, 872 (3) (446 SE2d 770) (1994).

So considering the charge here, we find it fully charged on the required elements and on Harper’s mistake of fact defense. There was no error. See Wideman v. State, 222 Ga. App. 733 (2) (476 SE2d 49) (1996).

Judgment affirmed.

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

Decided April 14, 1998.

Robbery. Richmond Superior Court. Before Judge Overstreet. Sam B. Sibley, Jr., for appellant.

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

       Harper was granted an out-of-time appeal.

         In McRoy, supra at 308 (3), by comparison, “[n]owhere in the charge of the court is this defense covered or even mentioned.”


author: Johnson, Judge.

text:
    A98A0269.
    RAYMOND v. THE STATE.
    (501 SE2d 568)
   Johnson, Judge.

A jury found Donald Raymond guilty of child molestation and incest for offenses committed against his daughter. He appeals from the convictions aiid the denial of his motion for new trial.

1. Raymond contends that the verdict is contrary to the evidence, the evidence is insufficient to support the verdict and the verdict is against the weight of the evidence. He claims his daughter’s testimony was not corroborated and there was no evidence of penetration.

Viewed in a light most favorable to the verdict, the evidence shows the following: Raymond’s daughter, who was thirteen at the time of trial, testified that her father began touching her breasts and vaginal area when she was six or seven years old. The child’s parents eventually separated, and at the age of 12, the child moved in with her father. Two or three times a week Raymond requested that the child sleep in the bed with him. One night he pulled her on top of him and removed her boxer shorts. The child, who pretended to be asleep, felt something “like his penis” in her vaginal area. She testified that “[i]t wasn’t in but it hurt.” Upon further questioning, the child stated “I don’t think it was in. ... I had my eyes closed and I was just scared.” She testified that after the incident, Raymond asked her why she let him do it. For the next few days, the child experienced pain while using the bathroom. The child’s brother testified that the victim often slept in the bed with Raymond and that Raymond would not allow him to sleep with them on those occasions.

On appeal, we view the evidence in the light most favorable to the verdict, and we only determine if the evidence is sufficient for a rational trier of fact to have found proof of guilt beyond a reasonable doubt. We do not weigh the evidence or judge credibility. Johnson v. State, 195 Ga. App. 385, 387 (6) (393 SE2d 712) (1990).

That the child’s testimony was equivocal as to whether penetration occurred does not require reversal of either conviction. No penetration is required for child molestation to occur. See OCGA § 16-6-4 (a).

As for the incest conviction, the evidence presented satisfied the requirements of the incest statute. Incest is committed when a father has sexual intercourse with a person who he knows is his daughter. OCGA § 16-6-22 (a) (1). While we have found no cases addressing the issue of what must be shown to satisfy the “sexual intercourse” requirement of the incest statute, the “penetration” requirement of other sexual offense statutes has been examined by this Court.

In rape cases, for example, evidence of even slight penetration is sufficient to sustain a conviction. McCulligh v. State, 169 Ga. App. 717, 719 (3) (314 SE2d 724) (1984). The penetration requirement may be satisfied even where the vagina was not entered or the hymen ruptured; an entering of the anterior of the organ is sufficient. Emanuel v. State, 196 Ga. App. 449 (1) (396 SE2d 83) (1990). Similarly, the penetration requirement of aggravated sexual battery is met if only slight penetration is shown. OCGA § 16-6-22.2; Hendrix v. State, 230 Ga. App. 604 (497 SE2d 236) (1998). Penetration may be proved by indirect or circumstantial evidence. Id. See Moss v. State, 160 Ga. App. 42 (2) (285 SE2d 776) (1981) (evidence of penetration sufficient despite rape victim’s inability to testify to such due to unconsciousness). We believe that slight penetration, including entry of the anterior of the organ, is sufficient to meet the intercourse element of the incest statute. A reasonable jury could have found from the evidence presented that slight penetration occurred.

Contrary to Raymond’s contention, corroboration of the victim’s testimony is not necessary to support a conviction for incest or child molestation. See Legg v. State, 207 Ga. App. 399, 400 (3) (428 SE2d 87) (1993); Scales v. State, 171 Ga. App. 924 (2) (321 SE2d 764) (1984). The evidence was sufficient for a rational trier of fact to find Raymond guilty of the offenses charged beyond a reasonable doubt. See Legg, supra; Scales, supra.

2. Raymond contends the trial court erred in allowing the state to introduce testimony regarding: (1) an incident witnessed by the child in which Raymond pointed a gun at her mother’s head and then fired a shot into the stairwell; and (2) an incident in which Raymond rammed his car into her mother’s car and then broke out windows in the house and car. The evidence, he argues, improperly interjected the issue of his character. The state purportedly sought to introduce the evidence to show the child victim’s reasons for not reporting the acts of molestation and incest sooner.

Testimony which explains conduct is admissible if it is relevant to the issues involved. Pittman v. State, 179 Ga. App. 760, 762 (3) (348 SE2d 107) (1986) (testimony explained why victim did not report the offenses). If evidence showing a defendant has committed violent acts is relevant to an issue in the case, it is not inadmissible because it incidentally puts the defendant’s character in issue. See Williams v. State, 253 Ga. 690, 693 (1) (324 SE2d 440) (1985). “What is forbidden is the State’s introduction in the first instance of evidence whose sole probative value is that it tends to show a defendant’s bad character.” (Citations and punctuation omitted.) Turner v. State, 202 Ga. App. 799, 801 (2) (415 SE2d 524) (1992).

Decided April 14, 1998.

William D. Phillips, for appellant.

Charles H. Weston, District Attorney, Laura D. Hogue, Myra Y. Christian, Assistant District Attorneys, for appellee.

The child testified that the molestation began when she was six or seven years old, but that she did not tell anyone until she was thirteen. A police officer who interviewed the child testified that when he asked her how she felt about her father and why she waited so long before reporting the abuse, she replied that she was “embarrassed and scared.”

While cross-examining the child, defense counsel inquired into whether the molestation took place over a number of years, when she first reported or tried to report it, and whether she was comfortable enough with several people to have told them. During his cross-examination of the child’s mother, defense counsel asked if it was correct that during the entire marriage the child never told her she was being sexually molested. The mother answered affirmatively. Furthermore, a psychologist testified that exposure to family violence “could play a large part in the reason” a child delays reporting sexual abuse.

Because the testimony complained of explained why the victim might have been afraid to report the offenses earlier, it was relevant. See Pittman, supra. We note that the trial court gave appropriate limiting instructions after the evidence of family violence was introduced. “Admission of evidence is a matter which rests largely within the sound discretion of the trial court and an appellate court will not interfere with its rulings absent abuse of that discretion.” (Citations and punctuation omitted.) Turner, supra at 802. The trial court did not abuse its discretion in allowing the evidence.

Judgment affirmed.

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


text:
    A98A0281.
    MILLER v. GEORGIA INTERLOCAL RISK MANAGEMENT AGENCY et al.
    (501 SE2d 589)
   Andrews, Chief Judge.

At issue in this appeal is whether an insurer which settled one of two claims arising from the alleged negligence of its insured acted in bad faith by settling with one of the claimants for the majority of the available coverage before attempting to negotiate a settlement with the other claimant. For the following reasons, we find no evidence of bad faith.

While operating a motorcycle with Sharon Crumpton as a passenger, John R. Miller collided with a garbage truck owned and operated by the City of Moultrie, Georgia. Miller and Crumpton suffered serious injuries and claimed that the accident was caused by the City’s negligence. Through its participation in the Georgia Interlocal Risk Management Agency (GIRMA) (OCGA § 36-85-1 et seq.), the City had liability insurance covering the accident with a coverage limit of $1,000,000. Miller and Crumpton made separate claims against the City seeking settlement payments from the GIRMA insurance coverage. GIRMA, which contracted with Gallagher Bassett Services, Inc. to handle adjustment of the claims, settled with Crumpton for $900,000, leaving only $100,000 of insurance coverage available for payment on Miller’s claim.

Miller sued GIRMA and Gallagher Bassett claiming they acted in bad faith in settling with Crumpton. He alleged that GIRMA and Gallagher Bassett are liable to him for punitive damages and for all damages awarded to him in his suit against the City arising out of the accident in excess of the available $100,000 in insurance coverage. Miller appeals from the trial court’s order granting summary judgment in favor of GIRMA and Gallagher Bassett.

1. In Allstate Ins. Co. v. Evans, 200 Ga. App. 713, 714-715 (409 SE2d 273) (1991), we held that “ ‘(a) liability insurer may, in good faith and without notification to others, settle part of multiple claims against its insured even though such settlements deplete or exhaust the policy limits so that remaining claimants have no recourse against (the) insurer.’ [Cits.]” As we noted in Evans, a contrary rule would put insurers at risk of being liable to remaining claimants for amounts above the coverage limits, which would necessarily result in a general policy by insurers of paying claims only after they were reduced to judgment, and would discourage the sound public policy of encouraging settlements. Id. at 715; Williams v. St. Paul Cos., 228 Ga. App. 656, 658 (492 SE2d 560) (1997). The public policy considerations for the rule adopted in Evans are equally applicable to liability insurance coverage provided under GIRMA. See Walston v. Holloway, 203 Ga. App. 56 (416 SE2d 109) (1992); Gilbert v. Richardson, 264 Ga. 744, 751-752 (452 SE2d 476) (1994).

Decided April 14, 1998

Dwight H. May, James M. Bivins, for appellant.

Alexander & Vann, William C. Sanders, Young, Thagard, Hoffman, Scott & Smith, James B. Thagard, for appellees.

2. In alleging that GIRMA through its claims adjuster, Gallagher Bassett, settled with Crumpton in bad faith, Miller does not allege that $900,000 was an unreasonable payment to Crumpton considering the severity of her injuries. Rather, he claims the insurer acted in bad faith because it settled with Crumpton without attempting to negotiate a settlement with him and that the remaining insurance coverage is inadequate to compensate him for his injuries. Even if the insurer settled with Crumpton without conferring with Miller, this is not evidence of bad faith. Miller had no right to a pro rata division of the insurance proceeds, and the insurer had no legal obligation to confer with him before settling with Crumpton. See Evans, supra. Whether to evaluate claims for settlement one at a time or together is in the discretion of the insurer. Liguori v. Allstate Ins. Co., 184 A2d 12, 17 (N. J. Super. Ct. Ch. Div. 1962).

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    A98A0285.
    STOKES et al. v. THE STATE.
    (501 SE2d 599)
   McMurray, Presiding Judge.

Defendants Stokes and Hawkins were jointly tried before a jury, along with co-defendant Fryer, and convicted of burglary. The evidence adduced at trial, viewed in a light most favorable to the jury’s verdict, reveals the following:

At about 10:30 in the morning on November 17, 1993, the victim returned home after a 20-minute shopping trip and discovered defendants Stokes and Hawkins sitting in an unfamiliar vehicle, parked in his driveway. The victim blocked defendants’ car with his truck, approached defendants and asked them, “who are y’all looking for?” Defendants replied, “we’re just sitting here; we’re looking for Hawthorne. . . .”

After noticing that his house’s front door was “open,” as he “had just left [his] house, and the door was locked,” the victim returned to his truck, retrieved a hunting rifle and threatened to shoot defendants if they fled. Meanwhile, co-defendant Fryer exited the victim’s house, joined defendants in the parked car and “said, man, let’s get out of here.” The victim, equipped with a cellular telephone, warned the suspects not to flee, that he was calling the police and that “if any one of you run, I’m going to shoot you.” Co-defendant Fryer did not heed this warning. He exited the parked car and fled, abandoning defendants Stokes and Hawkins at the scene.

The victim did not stop co-defendant Fryer. He, instead, held defendants Stokes and Hawkins at gunpoint, warned them not to flee and advised them that he was going to summon the police. In response, defendants said that “they hadn’t did [sic] anything wrong.” But as soon as the victim began dialing his cellular phone for police assistance, defendants fled. The victim later entered his house and discovered that it had been forcibly entered and ransacked. Defendant Stokes, defendant Hawkins and co-defendant Fryer were arrested the next morning at defendant Hawkins’ residence.

Defendants Stokes and Hawkins filed this joint appeal after the denial of their joint motion for new trial. Held:

1. Defendants first challenge the sufficiency of the evidence, arguing that proof of their presence near the crime scene is insufficient to authorize the jury’s findings that they were parties to the crime charged.

“One who intentionally aids or abets in the commission of a crime is a party to it. OCGA § 16-2-20 (b) (3). It is true mere presence at the scene of a crime, even coupled with knowledge and approval, is insufficient to convict one of being a party. See Slaton v. State, 224 Ga. App. 422, 425 (3) (d) (480 SE2d 872) (1997). However, ‘presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.’ (Citation and punctuation omitted.) Grace v. State, 210 Ga. App. 718, 719 (1) (437 SE2d 485) (1993). See also OCGA § 16-2-6: ‘A person will not be presumed to act with criminal intention but the trier of facts may find such intention upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.’ ” Cummings v. State, 227 Ga. App. 564, 566 (489 SE2d 370). In the case sub judice, the victim testified that, during his 20-minute shopping trip on the morning of the burglary, someone struck his house’s front door with such force as to shatter the door frame and render the “deadbolt” lock useless. This testimony, proof that defendants witnessed this forceful entry from their perspective in the victim’s driveway, testimony that co-defendant Fryer joined defendants after the burglary and “said, man, let’s get out of here[,]” and evidence that defendants fled as soon as the victim informed them that he was calling for police assistance, sanctions the jury’s findings that defendants Stokes and Hawkins are guilty, beyond a reasonable doubt, of being parties to the burglary of the victim’s home. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Defendants next contend the trial court erred in failing to declare a mistrial after the State’s attorney commented during his opening statement that “over thirty stolen electronic items” were found at the residence where defendants were arrested. Defendants argue that, because the trial court excluded evidence supporting this remark, the State’s attorney’s comment impermissibly tainted their character by implying that they were involved in other criminal activity.

The trial court instructed the jury that evidence is the only means by which any fact may be established and that evidence “does not include . . . opening statements and closing arguments of the attorneys.” We must presume the jury followed these instructions and did not penalize defendants for the State’s attorney’s unsupported comment that “over thirty stolen electronic items” were found at the residence where defendants were arrested. See Harris v. State, 202 Ga. App. 618, 619 (3) (a), 620 (414 SE2d 919). Defendants, nonetheless, argue that they are entitled to a new trial because the jury’s foreman testified at the motion for new trial hearing that the jury considered the State’s attorney’s unsupported remark regarding stolen goods at the residence where defendants were arrested. This argument is without merit.

“Jurors are not permitted to impeach their own verdict. OCGA § 17-9-41. The rule is deeply rooted in Georgia law and promotes important public policy considerations. But the rule does yield to a defendant’s constitutional guarantees. Watkins v. State, 237 Ga. 678, 683-685 (229 SE2d 465) (1976). Whether or not exception should be made must be determined by the circumstances of the case.” Oliver v. State, 265 Ga. 653, 654 (3) (461 SE2d 222). While the jury foreman testified in the case sub judice that the jury considered the State’s attorney’s comment that “over thirty stolen electronic items” were found at the residence where defendants were arrested, the jury foreman did not say that the jury’s verdict was influenced by this statement. Under such circumstances, we find no basis warranting an exception to the rule. See Joachim v. State, 263 Ga. 816, 817 (3) (440 SE2d 15).

The trial court did not err in denying defendants’joint motion for new trial.

3. Defendants contend the trial court erred in charging the jury that “all the participants in a plan are criminally responsible for the acts of each committed in the execution of the plan and which may be said to be a probable consequence of the unlawful design.” Defendants argue that this instruction was not adjusted to the evidence. This argument is without merit.

The challenged jury instruction is an excerpt from the trial court’s explanation to the jury of the legal theory of being a party to a crime. OCGA § 16-2-20. The proof outlined in Division 1 of this opinion, indicating that defendants were concerned in the commission of the indicted offense, authorizes the challenged jury instruction. See Crumpton v. State, 213 Ga. App. 358, 361 (3) (444 SE2d 847).

Decided April 14, 1998.

Sam B. Sibley, Jr., for appellants.

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

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.


text:
    A98A0298.
    GIPSON et al. v. PHILLIPS et al.
    (501 SE2d 570)
   Andrews, Chief Judge.

This case is before us on appeal from the trial court’s denial of the Gipsons’ motion for directed verdict on the issue of lost profits. Because we find there was sufficient evidence of lost profits to go to the jury, we affirm the judgment of the trial court.

“A directed verdict is not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a certain verdict.” (Citations and punctuation omitted; emphasis in original.) Fouts v. Builders Transport, 222 Ga. App. 568, 577 (474 SE2d 746) (1996). “In determining whether the trial court erred by denying appellants’ motions for a directed verdict . . . this court must view and resolve the evidence and any doubt or ambiguity in favor of the verdict.” Southern Store &c. Co. v. Maddox, 195 Ga. App. 2, 3 (392 SE2d 268) (1990). The standard of review on appeal from the denial of a motion for directed verdict is the “any evidence” standard. F. A. F. Motor Cars v. Childers, 181 Ga. App. 821 (354 SE2d 6) (1987).

Here, the evidence at trial was that Ms. Gipson hit the rear end of Phillips’ van while he was stopped at a red light. Gipson’s car hit Phillips’ van with enough force to wedge her car under the van and require a wrecker to detach them. There was evidence of damage to the van and injuries to Phillips’ neck and back.

On the issue of lost profits, Phillips testified as follows: “Q. What kind of odd jobs did you do after you retired? A. Well I paint signs, I build cabinets, do hang doors, do landscaping, grading work. Q. Do you have any grading equipment that you use? A. Yes, sir. Q. What kind of equipment do you have? A. A John Deere 450 front end loader, and an International backhoe. . . . Q. Now back before this happened were you getting paid for doing odd jobs? A. Yes, sir. Q. About how much were you making on a weekly basis? . . . [H]ow much do you think you were bringing home? A. I’d say about $750 a week. Q. And after you take all those expenses out, about how much do you think you would clear in profit? A. Well maybe $250.”

Mrs. Phillips testified that she was the one who handled the money and paid the bills. When asked whether the $250 a week figure was accurate, she replied, “That’s about accurate, yes. Some weeks it might be a little more, some less.” She stated that after the collision the amount of money her husband was able to bring in was “[pjretty much nothing.” Mrs. Phillips said her husband’s inability to work lasted for approximately a year and a half.

This was sufficient evidence from which the jury could determine probable lost profits. “It may be stated as a general rule that in tort actions a recovery may be had for loss of profits, provided their loss is the proximate result of the defendant’s wrong and they can be shown with reasonable certainty. The profits recoverable in such cases are limited to probable, as distinguished from possible benefits.” (Punctuation omitted.) Ga. Grain Growers Assn. v. Craven, 95 Ga. App. 741, 747 (98 SE2d 633) (1957). However, mere difficulty in fixing the exact amount of the lost profits when this loss is proximately caused by the alleged injury does not constitute a legál obstacle to their recovery, provided that “the amount of the recovery comes within that authorized with reasonable certainty by the legal evidence submitted.” (Punctuation omitted.) Johnston v. Lyon, 173 Ga. App. 524, 525 (327 SE2d 519) (1985).

Here, both Mr. and Mrs. Phillips testified that Mr. Phillips cleared about $250 a week doing odd jobs and grading work. Mrs. Phillips testified that after his accident, Mr. Phillips earned almost nothing for approximately a year and a half. Accordingly, the Phillips carried their burden of showing the loss in such a way that the jury could calculate the amount without basing their finding on guesswork or speculation. Mathis v. Copeland, 139 Ga. App. 68, 69 (228 SE2d 23) (1976).

Moreover, even if we were to find the evidence was insufficient to provide a basis for calculating lost profits, reversal is not required where the trial court properly charged the jury that lost earnings were recoverable “where the evidence shows with a reasonable certainty the amount of the loss.” Williams v. Adams, 170 Ga. App. 35, 36 (316 SE2d 1) (1984), citing Summerfield v. Decinque, 143 Ga. App. 351, 353 (238 SE2d 712) (1977). This is especially important here, where the jury awarded all damages in a lump sum verdict: $40,000 to Mr. Phillips and $10,000 to Mrs. Phillips on her loss of consortium claim. This lump sum award was within the range of the evidence at trial which showed property damage to the van, medical bills, pain and suffering, and Phillips’ inability to work around the house and yard and care for the animals. Further, the Gipsons did not object to the form of the verdict, nor did they request an apportionment of damages at trial. Thus, they have waived any possible irregularity in the verdict. Williams, supra at 36-37.

Decided April 14, 1998.

Sharon W. Ware & Associates, Jane N. Wilkes, Scott K. Spooner, for appellants.

Finch, McCranie, Brown & Hendrix, Andrew T. Rogers, for appellees.

Therefore, because there was evidence as to probable lost profits and because the lump sum verdict was within the range of the evidence, we cannot say it was improper. Accordingly, we will not disturb the judgment of the trial court. Johnston, supra at 526; Williams, supra at 37; Southern Crate &c. Co. v. McDowell, 163 Ga. App. 153, 155 (293 SE2d 541) (1982); Summerfield, supra at 353.

Judgment affirmed.

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


author: Ruffin, Judge.

text:
    A98A0301.
    GILHAM v. THE STATE.
    (501 SE2d 586)
   Ruffin, Judge.

A jury found George C. Gilham guilty of aggravated child molestation (OCGA § 16-6-4 (c)). Gilham appeals from the judgment of conviction and denial of his motion for new trial. For reasons which follow, we affirm.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence. Price v. State, 223 Ga. App. 185, 190 (10) (477 SE2d 353) (1996). So viewed, the evidence in this case establishes that the victim was Gilham’s 12-year-old stepnephew. The victim testified that Gilham fondled the victim’s penis and anally sodomized him. The State also presented evidence of a similar offense of child molestation committed by Gilham where the victim was Gilham’s five- or six-year-old stepsister. Gilham asserts that the trial court erred in admitting the similar transaction evidence because (1) it was based on a custodial statement he gave years prior to trial when he was a juvenile and (2) there was no evidence that he gave the statement freely and voluntarily.

“Before any evidence of an independent offense may be introduced, the state must show 1) that the evidence is relevant for some purpose other than to show a probability that the defendant committed the crime on trial because he is a man of criminal character; 2) that there is sufficient evidence to establish that the accused committed the independent offense or act; and 3) that there is sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.” (Citation and punctuation omitted.) Ramsey v. State, 214 Ga. App. 743, 745 (2) (448 SE2d 790) (1994). “The exception to the general rule that evidence of independent crimes is inadmissible has been most liberally extended in the area of sexual offenses. In crimes involving sexual offenses, evidence of similar previous transactions is admissible to show the lustful disposition of the defendant and to corroborate the victim’s testimony. There need only be evidence that the defendant was the perpetrator of both crimes and sufficient similarity or connection between the independent crime and the offenses charged.” (Citations and punctuation omitted.) Wallace v. State, 228 Ga. App. 686, 689 (3) (492 SE2d 595) (1997).

The trial court held a Jackson-Denno hearing regarding the admission of the custodial statement given in the prior offense. See Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964). At the hearing, Officer Cynthia Young testified that she read Gilham his Miranda rights on a waiver of rights form. Gilham read the form to himself and initialed each of the rights stated on the form indicating that he understood that he was waiving his rights. Officer Young testified that she made it clear to Gilham that the court could appoint an attorney to represent him and he appeared to understand. Officer Young testified that Gilham did not ask for an attorney and agreed to make a statement. Following this testimony, the trial court held that Gilham’s custodial statement was admissible because he was fully advised of his constitutional rights, was aware of those rights, and waived them.

At trial, Officer Young testified in detail about the questions Gilham posed to her before he gave the statement. Gilham indicated some concern about his ability to read and write, “because he’d only gone through part of the ninth grade and that was in special education.” More specifically, Gilham signed a waiver form that included the following statements: “I freely and voluntarily waive my right to an attorney. I’m willing to make a statement to the officers. I can read and write the English language and fully understand my rights to an attorney. I have read this waiver of counsel and fully understand it.” Young testified that she believed Gilham understood the rights that she reviewed with him. The trial court allowed the transcript of the statement to be read to the jury. In the statement, Gilham admitted touching and rubbing the vaginal area of the vietim, who was in either kindergarten or first grade at the time. The offense occurred while Gilham was alone with her in the living room of the house. Although the act occurred when Gilham was 12 or 13 years old, he was 18 years old when he provided the statement.

Viewed in a light most favorable to the verdict, the victim of the independent offense, who was fourteen years old at the time of trial, testified that when she was four or five years old, Gilham touched her anal area under her clothes with his hand while they were in the living room. This similar offense occurred nine years before the charged offense.

1. In his first enumeration of error, Gilham contends that the trial court erred in admitting evidence of the similar transaction because it allegedly occurred approximately nine or ten years before the instant case and because he was a juvenile, approximately twelve or thirteen years old when it occurred.

“Lapse of time ‘does not render the evidence automatically inadmissible . . . (but) is a factor to be taken into consideration when balancing the probative value of the evidence against its potentially prejudicial impact.’ ” Willett v. State, 223 Ga. App. 866, 872 (3) (a) (479 SE2d 132) (1996). However, we have held that independent crimes which occurred between 15 and 20 years prior to the charged offense were not barred by a lapse of time. See Perkins v. State, 224 Ga. App. 63 (479 SE2d 471) (1996). Accordingly, a lapse of nine or ten years does not render the evidence inadmissible.

Neither does the fact that Gilham was a juvenile render the similar offense inadmissible. In Stephens v. State, 205 Ga. App. 403, 404 (1) (422 SE2d 275) (1992), we held that a “defendant’s youth at the time of the similar transaction should be considered when deciding if the testimony should be admitted to show lustful disposition and inclination, i.e., bent of mind.”

In the similar offense at issue here, Gilham was either twelve or thirteen years old when he committed the sexual act on his stepsister who was either four or five years old. In his statement, Gilham admitted that he knew the difference between “a good touch and a bad touch,” and that he was embarrassed by the act committed against his stepsister and “went to the bathroom” to “finish.” Gilham also admitted that he had sought “revenge” against another person who had tried to touch him in a bad way. “Given [Gilham’s] age and his obvious understanding of the [sexual act committed], his [actions were] not the faultless act[s] of an innocent child. Accordingly, we hold that neither [Gilham’s] age at the time of the similar transaction nor the time span between the incidents renders the testimony inadmissible.” Stephens, supra at 404 (1).

2. In his second enumeration of error, Gilham contends that the trial court improperly admitted evidence of the custodial statement he gave to Officer Young regarding the independent offense because the evidence showed that his limited education prevented him from freely and voluntarily providing the statement.

Decided April 14, 1998.

Gale & Henley, Teddy L. Henley, for appellant.

Tambra P. Colston, District Attorney, C. Stephen Cox, Martha P. Jacobs, Assistant District Attorneys, for appellee.

“The question of whether a defendant is capable or incapable of making a knowing and intelligent waiver of his rights is to be answered by the trial judge and will be accepted by this court unless such determination is clearly erroneous.” (Citations and punctuation omitted.) Reynolds v. State, 217 Ga. App. 570, 572-573 (5) (458 SE2d 855) (1995). In Yorker v. State, 266 Ga. 615, 617 (4) (469 SE2d 158) (1996), the evidence established that the defendant, age 16, had completed the ninth grade and could read and write at the time of the interrogation. The Supreme Court affirmed the trial court’s decision to admit the defendant’s statement into evidence because the defendant’s Miranda rights were read to him prior to the interrogation, he understood them, he signed a written waiver form and subsequently gave his statement freely and voluntarily. Id.

Here, our review of the trial court’s Jackson-Denno hearing shows that the court’s factual finding that Gilham’s statement was freely and voluntarily made is clearly authorized by the evidence. See Brooks v. State, 258 Ga. 20, 21 (1) (365 SE2d 97) (1988). Accordingly, the trial court did not err in admitting the statement on this ground.

Judgment affirmed.

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


text:
    A98A0386.
    PHILLIPS & SONS LOGGING, INC. et al. v. PIONEER MACHINERY, INC.
    (501 SE2d 585)
   Andrews, Chief Judge.

Pioneer Machinery, Inc. sold logging machinery to Phillips & Sons Logging, Inc. The sale contract provided for a $15,000 downpayment plus $125,904 to be paid in 48 monthly installments. Averett Phillips, Glen Phillips and Greg Phillips each personally guaranteed payment of the sums due under the contract. Pioneer sued Phillips & Sons and all three of the personal guarantors for the $15,000 down-payment, claiming it was never paid. The trial court granted Pioneer’s motion for summary judgment and denied the motion for summary judgment brought by Phillips & Sons and the three personal guarantors.

Decided April 14, 1998.

Patrick D. Gill, for appellants.

Jones, Cork & Miller, Sharon H. Reeves, Cater C. Thompson, for appellee.

On appeal from the grant of summary judgment, Phillips & Sons and the three personal guarantors do not claim that the $15,000 downpayment was paid to Pioneer. In fact, the appellants admit that the downpayment was not paid to Pioneer at the time of the sale and that after the sale, they attempted to raise money to pay the $15,000 portion of the sale price represented by the downpayment, but they were unable to do so.

The appellants’ sole defense is that because the sale contract provided for a $15,000 downpayment, we should construe the unambiguous terms of the contract as establishing that the downpayment was made at the time of the sale and refuse to consider any evidence to the contrary. Just because the contract provided for a $15,000 downpayment to be made at the time of the sale does not demand that we find it was made. Because the evidence is undisputed that the $15,000 downpayment was part of the sale price and that the appellants owed it and did not pay it, Pioneer carried its burden as movant for summary judgment of demonstrating that there was no genuine issue of fact requiring jury resolution. OCGA § 9-11-56; Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). The trial court correctly granted Pioneer’s motion for summary judgment and correctly denied the appellants’ motion for summary judgment.

There being no adequate legal basis upon which the appellants could have anticipated that the judgment of the trial court would be reversed, we conclude that the appeal was for the purpose of delay only. Accordingly, the trial court is directed to enter judgment in favor of Pioneer Machinery, Inc. for damages in the amount of ten percent of the judgment awarded, to be entered in the remittitur pursuant to OCGA § 5-6-6.

Judgment affirmed.

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

       The record shows that the $125,904 financed portion of the sale price was assigned by Pioneer and that the machinery was eventually repossessed or returned and sold by either the assignee or Pioneer to satisfy this portion of the debt. The appellants raised no defense that the sale was unreasonable or that Pioneer failed to mitigate its damages by the sale of the machinery. See Strong v. Wachovia Bank &c., 215 Ga. App. 572, 574 (451 SE2d 524) (1994); Moreland Auto Stop v. TSC Leasing Corp., 216 Ga. App. 438, 441 (454 SE2d 626) (1995) .


text:
    A98A0421.
    RESOURCE NETWORK INTERNATIONAL, INC. v. RITZ-CARLTON HOTEL COMPANY.
    (501 SE2d 573)
   Beasley, Judge.

Despite letters, motions and a court order, defendant Resource Network International, Inc. (RNI) refused to produce promised discovery documents until the morning of the hearing on the motion to strike its answer. That was 16 months after the documents were requested. The issue on appeal is whether there is evidence RNI’s refusal was wilful, which would support the court’s order striking the answer and entering default judgment.

1. OCGA § 9-11-37 provides that a court may impose such sanctions against a defendant who wilfully fails to respond to discovery or who wilfully disobeys a court order compelling discovery. Stolle v. State Farm &c. Ins. Co. affirmed dismissal of an action for such obstinacy even in the absence of an order requiring responses. Potter v. American Medcare Corp. upheld a dismissal for wilful and conscious disregard of an order mandating discovery.

“There is no requirement that the plaintiff display and the trial court find actual wilfulness. The sanction of dismissal for failure to comply with discovery provisions of the Civil Practice Act requires only a conscious or intentional failure to act, as distinguished from an accidental or involuntary non-compliance. A conscious or intentional failure to act is in fact wilful. Where a motion for sanctions is brought under OCGA § 9-11-37 (b) (2) for a party’s failure to comply with an order compelling responses to discovery requests, the existence or nonexistence of wilfulness should be considered not only in the context of the time period prescribed in the order compelling answers, but in the context of the entire period beginning with service of interrogatories and ending with service of answers. Events transpiring during this entire time period are probative of whether appellant acted with conscious indifference to the consequences of failure to comply with the order compelling answers.”

At least six instances of noncompliance demonstrate that RNI not only intentionally refused to respond to discovery but also consciously disregarded a court discovery order.

(a) Although plaintiff (Ritz-Carlton Company) simultaneously served requests for admissions, interrogatories, and requests to produce documents on October 13, 1995, RNI responded only to the requests to admit within the required time. It sought no extensions to respond to the other discovery efforts. The court could infer that RNI refused to respond to interrogatories and production requests because only the requests to admit carried the automatic sanction of being conclusively admitted if not responded to. RNI did not answer the interrogatories and document requests until April 8, 1996, and then only after receiving a letter from Ritz-Carlton’s counsel threatening a motion to compel.

(b) RNI failed to attach the requested documents to its April 8 responses even though it stated otherwise and it purported to attach them in lieu of full responses to the interrogatories. Failure to attach documents could be inadvertent. But despite two letters and a motion for protective order lamenting absence of the documents, RNI persisted to withhold them throughout the summer of 1996.

(c) When Ritz-Carlton moved to compel the production of the documents in September, RNI failed to respond altogether. Thereafter the court appropriately found wilful failure and ordered RNI to produce the documents within 20 days or face a possible dismissal of its answer. RNI’s lame claim it never received a copy of the motion to compel is not supported by any evidence and was not even raised until a hearing held months after it had admittedly received various filings referencing that motion.

(d) After receiving a copy of the order, which RNI baldly claims it did not receive until shortly after the November 26 compliance date because of an address change, RNI remained silent. It did not obey the order; it did not notify the court of late receipt; and it did not offer any reason for noncompliance. Not until sometime in January 1997, if then, did RNI notify the court or opposing counsel of its address change.

(e) When RNI received Ritz-Carlton’s January 17 motion for imposition of sanctions, RNI still did not produce the documents but instead stalled with a request for a hearing on the question of its wilfulness in not responding.

(f) RNI waited until the morning of that hearing on March 14, 1997, to produce the documents and gave no explanation for this dilatory conduct. The late production did not nullify the motion for sanctions.

Decided April 14, 1998.

Diana Y. McDonald, for appellant.

Stokes, Lazarus & Carmichael, William K. Carmichael, Brian K. Schumacher, for appellee.

“A trial court’s finding that a party has wilfully failed to comply with its discovery obligations will not be reversed if there is any evidence to support it.” Awarding default judgments against disobedient parties is within the discretion of the trial court and will not be disturbed absent clear abuse. The egregious conduct in this case would hardly sustain an opposite disposition. The debt is now nearly five years old. It is time it was paid.

2. RNI’s claim it was not afforded a hearing is disingenuous, for its attorney attended and participated in the hearing.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.

       OCGA § 9-11-37 (d) (1).

       OCGA § 9-11-37 (b) (2) (C).

       206 Ga. App. 235, 236-237 (3) (424 SE2d 807) (1992).

       See Evans v. East Coast Intermodal Systems, 191 Ga. App. 749 (382 SE2d 743) (1989); Bells Ferry Landing, Ltd. v. Wirtz, 188 Ga. App. 344 (373 SE2d 50) (1988).

       225 Ga. App. 343, 346 (484 SE2d 43) (1997).

       See generally Gen. Motors Corp. v. Conkle, 226 Ga. App. 34, 38 (1) (486 SE2d 180) (1997).

       (Citations and punctuation omitted.) Potter, supra, 225 Ga. App. at 346.

       See OCGA § 9-11-36 (a) (2).

       See Stolle, supra, 206 Ga. App. at 236 (2) (appellate court cannot consider evidence or errors not found in the record).

        Fidelity Enterprises v. Heyman & Sizemore, 206 Ga. App. 602, 603 (1) (426 SE2d 177) (1992).

        Potter, supra, 225 Ga. App. at 346.

        Santora v. American Combustion, 225 Ga. App. 771, 773 (1) (b) (485 SE2d 34) (1997); Washington v. South Ga. Med. Center, 221 Ga. App. 640, 641 (1) (472 SE2d 328) (1996).


text:
    A98A0569.
    WILLINGHAM v. THE STATE.
    (501 SE2d 575)
   Ruffin, Judge.

Alan Willingham appeals from the denial of his motion for discharge and acquittal. In his sole enumeration of error, Willingham asserts that the trial court erred in denying his motion because he filed a speedy trial demand and was not tried within the time required by OCGA § 17-7-170. We disagree and therefore affirm the trial court’s judgment.

The record shows that Willingham was indicted for five counts of child molestation during the October 1996 term of the Rockdale County Superior Court. On January 3, 1997, Willingham filed a speedy trial demand and a motion to quash the indictment for failure to specify the dates on which the offenses were committed. On May 8, 1997, the trial court granted Willingham’s motion and quashed the indictment. On July 10, 1997, the State reindicted Willingham for the original five child molestation counts and an additional four counts of child molestation. On August 5, 1997, Willingham filed another speedy trial demand and a motion for discharge and acquittal arguing that his first speedy trial demand was still viable and that he was not tried on the five counts in the original indictment within two terms of his first demand.

Willingham’s demand for trial and the State’s responsibility of ensuring a speedy trial are governed by OCGA § 17-7-170. Under OCGA § 17-7-170 (b), if a person who files a speedy trial demand “is not tried when the demand is made or at the next succeeding regular court term thereafter, provided at both court terms there were juries impaneled and qualified to try him, he shall be absolutely discharged and acquitted of the offense charged in the indictment or accusation.”

The Superior Court of Rockdale County has four terms of court which commence on the first Monday in January, April, July, and October. OCGA § 15-6-3 (32.1). Willingham acknowledges that no jury was impaneled to try him when he filed his first speedy trial demand on the last day of the October 1996 term. Willingham argues, however, that under OCGA § 17-7-170 (b), he should have been tried on the five counts charged in the original indictment during the January or April 1997 terms even though that indictment was quashed.

The circumstances surrounding Willingham’s original demand in this case are analogous to those in Dean v. State, 180 Ga. App. 770 (350 SE2d 489) (1986). In Dean, as in this case, the defendant filed a speedy trial demand and a motion to quash the indictment. The trial court quashed the indictment, and the defendant was reindicted for the offenses. Thereafter, the defendant, relying on his original trial demand, moved the court for an order of acquittal because he was not tried within two terms of his original speedy trial demand. The trial court denied the motion, and on appeal we affirmed. We based the decision on OCGA § 17-7-170 (a) which “provides, in pertinent part: Any person against whom a true bill of indictment ... is found for an offense not affecting his life may enter a demand for trial at the court term at which the indictment... is found or at the next succeeding regular court term thereafter. . . .’” (Emphasis in original.) Dean, supra at 770. We held that because “appellant made no demand for trial at the court term at which this indictment was found, or at the next succeeding term of court. . ., the trial court did not err in denying appellant’s motion for discharge and acquittal.” Id.

It is clear from our decision in Dean that the defendant’s speedy trial demand did not survive the quashing of his indictment. Thus, when an indictment is quashed on the defendant’s motion and a defendant is subsequently reindicted, he or she must file a new speedy trial demand and the time limits for trial in OCGA § 17-7-170 (b) run only from the term in which the new demand is filed. Accordingly, because Willingham’s first trial demand expired when the trial court quashed his original indictment, the trial court did not err in denying his motion for discharge and acquittal based on that demand.

Decided April 14, 1998.

Bill W. Crecelius, Jr., for appellant.

Cheryl F. Custer, District Attorney, Samuel W. Lengen, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A98A0691.
    MINOR v. THE STATE.
    (501 SE2d 576)
   Johnson, Judge.

Jerome Minor appeals his conviction for public indecency. We affirm.

1. Minor asserts the evidence was insufficient to prove his guilt beyond a reasonable doubt and that the trial court should have directed a verdict in his favor. Viewed in a light most favorable to support the jury’s verdict, the evidence shows that a correctional officer at the state prison facility in Oglethorpe, Georgia, observed Minor sitting in a common television-viewing room with his penis out of his pants. The correctional officer was five or six feet away from Minor. Minor was masturbating. When Minor saw the correctional officer looking at him, he covered his penis with a piece of newspaper.

The crime of public indecency as defined in OCGA § 16-6-8 consists of the performance of certain proscribed acts in a public place. The acts include a lewd exposure of the sexual organs or a lewd appearance in a state of partial or complete nudity. OCGA § 16-6-8 (a). Correctional institutions are public places within the meaning of the public indecency statute. OCGA § 16-6-8 (d).

Contrary to Minor’s assertion, the statute does not require that some person be embarrassed, offended or otherwise outraged. In addition, it was for the jury to determine whether Minor’s act was lewd. See Clark v. State, 169 Ga. App. 535, 536 (3) (313 SE2d 748) (1984). The trial court did not err in denying Minor’s motion for a directed verdict of acquittal. The evidence was sufficient to enable a rational trier of fact to find Minor guilty of the offense of public indecency beyond a reasonable doubt under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Collins v. State, 191 Ga. App. 289 (1) (381 SE2d 430) (1989).

2. Minor further contends the trial court erred in denying his motion for a continuance due to the unavailability of two witnesses. We disagree.

Six days before trial, Minor served a “Writ of Habeas Corpus Ad Testificandum” to compel the Department of Corrections to produce two inmates to be used as witnesses for the defense. The Department of Corrections requires ten days notice of the appearance of inmates in order to arrange transportation for the inmates. Minor’s trial counsel stated that he was unable to comply with the ten-day requirement because of his late appointment in this case eight days before trial. There is no explanation regarding why Minor’s trial counsel was appointed so late, and Minor does not raise any arguments regarding the late appointment.

Decided April 14, 1998.

Donald L. Lamberth, for appellant.

John R. Parks, District Attorney, Barbara A. Becraft, Assistant District Attorney, for appellee.

At trial, after the state rested, Minor informed the trial court that defense witnesses were not yet available and that he was unsure when they would arrive. The trial court then inquired into the nature of the witnesses’ expected testimony. Trial counsel admitted he had never spoken with the witnesses, but stated that Minor informed him the witnesses would deny that the incident ever occurred.

All applications for continuance are addressed to the sound discretion of the trial court, and we will not disturb the trial court’s ruling absent an abuse of discretion. OCGA § 17-8-22; Murphy v. State, 212 Ga. App. 153, 155 (3) (442 SE2d 2) (1994). The party moving for continuance must show he used due diligence. OCGA § 17-8-20. Minor’s counsel was appointed late and did not enter an appearance until eight days before trial, and Minor’s writ to compel the Department of Corrections to produce the two inmates did not give the Department of Corrections sufficient time to arrange for transportation of the inmates to Minor’s trial. Thus, Minor was, in large measure, responsible for his own predicament. “One cannot complain of a ruling that his or her own procedure or conduct aided in causing. [Cit.]” Murphy, supra at 154 (3); see also Tucker v. Signature Flight Support-Savannah, 219 Ga. App. 834, 835 (466 SE2d 694) (1996). The trial court did not abuse its discretion in denying Minor’s request for a continuance.

Judgment affirmed.

Birdsong, P. J., and Smith, J., concur.


text:
    A98A1056.
    HY v. THE STATE.
    (501 SE2d 583)
   Johnson, Judge.

A jury found Bunchoeurn Hy guilty of sixty counts of aggravated assault and one count of possession of a firearm during the commission of a crime. Hy appeals. We affirm.

Viewed in the light most favorable to support the jury’s verdict, the evidence shows that someone notified police that a possible gun fight was taking place at a nearby pool hall. When the officer arrived at the pool hall, he found shell casings on the pavement, bullet holes in the glass, and several injured people.

Just before the shooting, two witnesses were standing outside the pool hall and saw a blue pickup truck and a white/tan car with an Iowa license plate drive up in front of the pool hall. The witnesses saw the vehicles drive around in circles and then come back. One of the witnesses saw that the passenger in the pickup truck wore a mask and recognized the truck as belonging to Hy. The other witness testified she became concerned when she saw the vehicles because earlier that evening she heard that Hy was going to shoot them. Gunshots rang out, and four people were shot. One of the witnesses saw the passenger of the pickup truck leave the vehicle and start shooting.

Thirty-four victims testified and identified twenty-six other people that were present; thus, there was evidence that sixty people were present in the pool hall at the time of the shooting. Numerous bullet fragments, copper jackets and shell casings were recovered from the scene and sent to the state crime lab for analysis.

The night after the shooting, the police set up a road check during which they observed a Nissan Sentra with Iowa license plates. One of the officers recalled the lookout the previous evening concerning a small car with Iowa license plates being involved in the shooting. The vehicle was stopped at the road check, and its occupants were removed from the vehicle for officer safety. The occupants included Pouthone Kanthachack, Linda Vang, Brent Small, Samnang Nay, and Samson Mer. As one of the occupants was removed from the vehicle, officers observed a Smith & Wesson .38 caliber revolver lying on the floorboard of the car. This weapon was loaded.

The vehicle was impounded and held at the police department on the belief that it was the vehicle used the previous evening in the shooting and because none of the occupants could provide proof of ownership. After one of the occupants told police that another gun was hidden in the vehicle, police obtained a search warrant for the vehicle. They located a Glock .40 caliber semi-automatic pistol under the gearshift cover. Both guns were sent to the state crime lab for analysis. Testing at the crime lab revealed that several bullets and shell casings recovered at the pool hall matched the .40 caliber Glock, and one bullet recovered from the pool hall matched the Smith & Wesson .38 caliber revolver.

Testimony at trial revealed that on the night of the shooting, Samnang Nay was in the blue pickup truck with Hy and Vutha Keo. They had met John Chan, Samson Mer, and Pouthone Kanthachack, who were in a light-colored Nissan Sentra. According to Hy’s witnesses, when they pulled up in front of the pool hall, two men got out of the Nissan Sentra and began shooting. At trial, Nay testified that Hy did not have a gun and she did not know what Hy did during the shooting. Keo testified that Hy ducked during the shooting. However, the evidence at trial showed both Nay and Keo gave statements to the police that Hy had a gun and fired it during the shooting.

1. In his first enumeration of error, Hy contends the trial court erred in refusing to give his requested jury charge on the lesser included offense of reckless conduct. We disagree.

“ ‘Reckless conduct is an act of criminal negligence, rather than an intentional act, that causes bodily harm or endangers the bodily safety of another.’ [Cits.]” Carter v. State, 228 Ga. App. 403, 404 (492 SE2d 259) (1997); OCGA § 16-5-60 (b). In the present case, as in Carter, Hy denied having a gun or firing a shot. Even if the jury rejected Hy’s testimony, there was no competent evidence from which it could conclude that Hy fired the weapon negligently in conscious disregard of a substantial risk in violation of OCGA § 16-5-60 (b).

Keo’s prior statement to the police that Hy “opened fire, I don’t know, he shot up in the air, I guess” from the vehicle’s window and her trial testimony that she believed Hy may have fired his gun once and she believed he fired the gun into the air since he fired out of the window without opening the door of the vehicle are too ambiguous and equivocal to show that Hy fired the gun into the air. The evidence presented only two possibilities: either Hy was unarmed and never fired a shot or he committed aggravated assault by leaning out the vehicle’s window and intentionally firing the gun toward the victims. “Absent a factual foundation for the reckless conduct instruction, the trial court properly rejected that request to charge. [Cits.]” Carter, supra at 404; Martin v. State, 268 Ga. 682, 685 (7) (492 SE2d 225) (1997).

2. The trial court did not err in refusing to charge the jury on simple assault. While simple assault may be a lesser included offense of aggravated assault as a matter of law, this does not mean that the trial court must charge the jury on the lesser crime in every case. Prayor v. State, 217 Ga. App. 56, 58 (3) (456 SE2d 664) (1995); Dickerson v. State, 207 Ga. App. 241 (1) (427 SE2d 591) (1993). Where the undisputed evidence shows that the assault was committed with a deadly weapon, it is not error to refuse to give a charge on simple assault as a lesser included offense. Id.

In the present case, there was no evidence that Hy attempted to commit an injury that did not involve a gun. This enumeration lacks merit.

Decided April 14, 1998.

Lloyd J. Matthews, for appellant.

Robert E. Keller, District Attorney, Albert B. Collier, Assistant District Attorney, for appellee.

3. In his final enumeration of error, Hy contends the trial court erred in refusing to give his requested jury charges on mere presence at the scene of a crime and mere association. We note that the trial court did charge the jury on mere presence at the scene of a crime, an instruction taken from the suggested pattern jury instructions. It is not necessary that the jury be charged the exact language requested where the same principles are covered in the trial court’s general charge. Jones v. State, 225 Ga. App. 673, 676 (3) (484 SE2d 702) (1997). Moreover, since the trial court instructed the jury that the state must prove every element of the offenses charged beyond a reasonable doubt, and the mere association principle is just a corollary of this requirement, this argument is without merit. See Roberts v. State, 223 Ga. App. 167, 168 (4) (477 SE2d 345) (1996); Lamunyon v. State, 218 Ga. App. 782, 784 (3) (463 SE2d 365) (1995).

Judgment affirmed.

Birdsong, P. J., and Smith, J., concur.