text:
    A99A0074.
    HOUSTON COUNTY TAX ASSESSORS v. BROWN-FLOURNOY EQUITY, INC.
    (515 SE2d 647)
   Judge Harold R. Banke.

Brown-Flournoy Equity, Inc. (“B-F”) brought suit in superior court to contest the property tax assessment of two of its apartment complexes, Southland Station Phases I and II. Enumerating two errors, the Houston County Tax Assessors (“Tax Assessors”) appeal the jury verdict which set the value.

B-F appealed its 1997 assessment of its apartment property on the grounds that the assessment exceeded the fair market value and that the Tax Assessors failed to uniformly assess county property. During the trial, the Tax Assessors introduced evidence that in November 1997, Phase I sold for the sum of $7,763,797 as indicated by a Georgia Residential Transfer Tax form.

B-F’s expert, Ronald Stallings, testified without objection that the amount reflected on the transfer tax form did not accurately represent the selling price of the property at issue because there was other property involved in that sales transaction. At this point, the Tax Assessors interposed an objection to any testimony that Stallings might give about the transaction itself. This objection challenged Stallings’ competency to testify about that sale because he was not a principal or an officer of B-F. Before the court ruled on this objection, B-F offered to pursue a different line of questioning and did so. Stallings evaluated Phase I at $4,122,000 and Phase II at $3,709,800. Ultimately, the jury resolved the matter in favor of B-F and the Tax Assessors filed the instant appeal. Held:

1. The Tax Assessors contend that the trial court erred in permitting Stallings to testify about a sales transaction to which he was not a party.

Objections must be raised and ruled upon to preserve the issue for appeal. Bell v. Owens, 230 Ga. App. 826, 828 (3) (497 SE2d 591) (1998). The failure to obtain a ruling by the trial court on the admissibility of evidence generally results in waiver of that issue. Flowers v. Slash Pine Elec. Membership Corp., 122 Ga. App. 254 (1) (176 SE2d 542) (1970); see Brown v. Thomas, 257 Ga. 68, 69 (1) (354 SE2d 830) (1987).

Decided April 6,1999.

O’Neal, Long & Hall, Michael J. Long, for appellant.

Jack R. Hancock, for appellee.

Here, the Tax Assessors did not object to Stallings’ testimony explaining that the real estate transfer tax declaration “was part of a much larger transaction that occurred on or about that day.” Stallings also testified without objection that between 21 and 26 properties were involved in the sale. Only after that testimony did the Tax Assessors object to any statements by Stallings about the particulars of the November 1997 real estate transaction, and Stallings did not further testify about that sale. This objection was untimely. See Sieveking v. State, 220 Ga. App. 218, 220 (2) (469 SE2d 235) (1996). Nor did the Tax Assessors move to strike this testimony. Thus, even had the issue been properly preserved, the record refutes the Tax Assessors’ claim of a purported error by the trial court. Thomas v. Baxter, 234 Ga. App. 663, 666 (1) (507 SE2d 766) (1998) (abuse of discretion only constitutes reversible error where the result is palpably unfair and prejudicial). In any event, since the transfer tax form and the deed to secure debt were admitted into evidence as defense exhibits, the jury could make its own independent determination about the nature and scope of the November transaction.

2. The Tax Assessors claim that the trial court erred in admitting testimony by Stallings which varied or contradicted the terms of a valid written instrument.

Because the Tax Assessors did not assert this objection at trial, it was waived. Flowers, 122 Ga. App. at 254 (1). Even had the issue not been waived, the Tax Assessors cannot show the harm required for reversal. Moore v. Graham, 221 Ga. App. 616, 618 (4) (472 SE2d 152) (1996).

Judgment affirmed.

Smith and Eldridge, JJ., concur.

       The deed to secure debt reflects a $150 million transaction involving 25 parcels of property.


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A99A0458.
    HOUSE v. THE STATE.
    (515 SE2d 652)
   Eldridge, Judge.

In a bifurcated trial, a Hall County jury found Louis Lane House guilty of armed robbery and possession of a firearm by a convicted felon. He appeals the convictions and we affirm.

In a light most favorable to the verdict, the evidence shows that appellant House and co-defendant Terry Lee Gibbs determined that they needed to steal a pickup truck; they made plans to do so. House gave Gibbs a handgun and dropped him off in a specific residential area in Lula where Gibbs earlier had noticed a red pickup truck that met their needs. House then made arrangements to either meet Gibbs with the stolen vehicle at a nearby convenience store, or to return to the residential area in 30 minutes in order to retrieve Gibbs, having concluded that, the robbery plan was aborted.

After locating the red pickup truck parked at the previously identified residence, Gibbs approached the house and knocked on the door. A woman answered. Gibbs gained entry into the home by asking to see a telephone book in order to call someone about “car trouble.” Once inside, Gibbs demanded the key to the vehicle. The woman called for her son, who in turn called for his father “to come here, please.” Gibbs, gun in hand, demanded the key from the father, and he gave it to Gibbs.

Thereafter, the father, a 28-year veteran law enforcement officer, persuaded Gibbs to put the gun down on the kitchen table. The father then called 911. The police arrived. Gibbs told the officers of the plan to steal the red pickup truck. He gave the officers House’s name, location, and what type of vehicle he would be in; he also identified the number and types of weapons that would be found in House’s possession. House was subsequently arrested at the Circle K convenience store on Highway 365 in Lula, driving the type of vehicle identified by Gibbs, and in possession of a Smith & Wesson .41 caliber pistol, a Mossberg 12 gauge shotgun, and a 9mm Luger Tech 9 submachine gun. Two of the weapons were fully loaded. At trial, House’s prior felony convictions for habitual violator, financial transaction card theft, and theft by taking were introduced against him. Held:

1. House contends that the evidence corroborating the testimony of co-defendant Gibbs was insufficient to support his conviction. We disagree.

In Georgia, a defendant may not be convicted on the uncorroborated testimony of an accomplice. OCGA § 24-4-8. The corroboration must be independent of the accomplice’s testimony and it must connect the defendant to the crime or lead to the inference that he is guilty. However, the corroborating evidence need not of itself be sufficient to warrant a conviction of the crime charged. Slight evidence from an extraneous source identifying the accused as a participant in the criminal act is sufficient corroboration of the accomplice to support a verdict. The corroborating evidence may be circumstantial.

(Citations and punctuation omitted.) Givens v. State, 227 Ga. App. 861, 862 (490 SE2d 530) (1997).

Here, the evidence showed that co-defendant Gibbs was without a vehicle of his own in order to reach the robbery locale, thereby raising the inference that he was aided in reaching the victim’s residence. Further, Gibbs was in possession of 9mm ammunition that did not fit the weapon he was carrying, thereby creating an inference that a 9mm weapon was available to Gibbs. Subsequently, House’s presence at the convenience store identified by Gibbs, at the specific time identified by Gibbs, in the type of vehicle identified by Gibbs, with the array of loaded weaponry — including a 9mm weapon — identified by Gibbs is sufficient to corroborate Gibbs’ testimony regarding House’s participation as a party to the crime of armed robbery. OCGA § 16-2-20 (b) (3), (4). “The sufficiency of the corroborating evidence is a matter for the jury, and if the verdict is based upon the slightest evidence of corroboration connecting an accused to a crime, even if it is circumstantial, it is legally sufficient.” (Citation omitted.) Edmond v. State, 267 Ga. 285, 287 (2) (476 SE2d 731) (1996).

Accordingly, based upon a review of the evidence, we find that a rational trier of fact could have found House guilty beyond a reasonable doubt of being a party to the crime of armed robbery and of possession of a firearm by a convicted felon. Jackson v. Virginia, supra.

2. For the last 25 years, on civil and criminal trial days, it has been the practice of the Hall County Sheriff to, as House puts it, act as the “unofficial greeter of Hall County citizens” as they enter the courthouse for jury duty, “shaking] their hands, ask[ing] them how they are doing, and speak[ing] with them about other minor pleasantries.” Then, the presiding judge of the Hall County Superior Court speaks to the venire, because “we want to make the jurors comfortable and if they see a judge and hear that judges are just human beings and nice people then they’ll be more comfortable through the process.” And finally the Hall County District Attorney asks the following qualifying questions of the venire: “whether or not you were over eighteen, whether or not you were presently a resident of the county, [and] whether or not you had served on a grand jury or petit jury within the last term of court.”

In this case, based upon the above practices, House moved to have the venire dismissed due to an alleged constitutional violation of his right to a fair and impartial trial. House contends that (a) the greeting of the Hall County Sheriff allegedly “tainted” the venire in that the jurors may have been influenced to look more favorably upon law enforcement, and (b) the comments of the district attorney and the presiding judge were made outside the presence of the defendant in violation of his constitutional right to be present during all stages of the proceedings against him. The trial court denied the motion, and House claims this ruling as reversible error. We do not agree.

The rule is well established in this state, that a defendant on trial must be present when the court takes any action materially affecting his case. This right is guaranteed to the accused by the fundamental law of this State, in order that he and his counsel may see to it that he has a fair and impartial trial and that nothing is done that would in any wise tend to his prejudice. . . . There should be no communication which would tend in any manner to prejudice the accused (for instance, to hasten a verdict against him, or to induce jurors who might be for him to yield their convictions); and unless the character of the communication clearly shows that it could not have been prejudicial to the accused, the presumption of law would be that it was prejudicial, and the accused would be entitled to another trial.

(Citations and punctuation omitted.) Collins v. State, 191 Ga. App. 289, 290 (381 SE2d 430) (1989).

(a) Contrary to House’s assertions, we do not find that the Hall County Sheriff’s attempts to have prospective jurors, i.e., voters, look favorably upon him, means that the same jurors will look unfavorably upon House. The sheriff was neither a witness, nor did he act as bailiff during the trial of this case. The record shows that the Sheriff’s greeting was brief, personal, and referenced no case or legal matter. The jurors to whom the sheriff spoke were prospective only and had not been empaneled in this or any other case. In fact, House concedes that the sheriff’s traditional courthouse greeting is in the nature of “pure politicking.” Accordingly, “the character of the communication clearly shows that it could not have been prejudicial to the accused” upon the trial of his case. Collins v. State, supra at 290.

Decided April 6,1999.

Neil A. Smith, for appellant.

Lydia J. Sartain, District Attorney, Lee Darragh, Assistant District Attorney, for appellee.

(b) We find wholly without merit the contention that the Hall County presiding judge’s welcoming address to the venire violated House’s constitutional right to a fair and impartial trial because House was not present for such address. Standing alone, a trial judge represents neither party in the eyes of prospective jurors, and the comments about which House complains referenced neither House nor his case. Accordingly, the presiding judge’s brief address to the venire in order to demonstrate the “human” side of the judiciary and the judicial process did not impact on House’s constitutional right to be present during “any action which materially affects his case.” Collins v. State, supra.

(c) With regard to the district attorney’s general qualifying questions asked outside the presence of the defendant, “[w]e do not condone this practice. All voir dire should take place in the courtroom in the presence of all parties. However, in view of the limited scope of the [D.A.’s] questions, we find no error.” (Citation and punctuation omitted.) Robertson v. State, 268 Ga. 772, 774 (493 SE2d 697) (1997).

Moreover, fundamentally, the entry of individuals summonsed for jury duty and the preliminary qualifying questions by the district attorney to the venire was neither a trial nor a pre-trial procedure involving any specific defendant. See Collins v. State, supra. Notably, issue had not been joined in House’s case.

3. House claims a Bruton violation in the admission of co-defendant Gibbs’ statements to the police. This contention is merit-less as Gibbs testified at trial and was subject to cross-examination. “Normally, the confession of a co-defendant cannot be admitted against another defendant at a joint trial. Bruton v. United States, [supra]; OCGA § 24-3-52. However, the rule applies only where the co-defendant does not testify and is not available for cross-examination.” (Citation and punctuation omitted.) In the Interest of J. B., 223 Ga. App. 429 (477 SE2d 874) (1996).

Judgment affirmed.

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

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

       Notably, when the instant jury panel was selected from the venire and seated for voir dire purposes, House’s attorney specifically asked the members whether the Sheriff’s greeting would have any effect whatsoever upon their deliberations. To a man and woman, the answer was no.

        Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968).


text:
    A99A0711.
    DAVIS v. THE STATE.
    (515 SE2d 646)
   Eldridge, Judge.

A Cobb County jury found Kenneth Leon Davis guilty of theft by receiving stolen property (motor vehicle). Without challenging the sufficiency of the evidence introduced against him, Davis appeals and raises four alleged errors of law. We affirm his conviction.

1. In his first two enumerations of error, Davis asserts that the trial court committed reversible error during statutory voir dire. Davis contends that (1) the trial court used the conjunctive rather than the disjunctive when asking the jury whether anyone had “formed and expressed an opinion in regard to the guilt or innocence of the accused”; and (2) the trial court asked the jurors if they had any “prejudice or bias for or against the accused” and whether their minds were “perfectly impartial between the State and the accused,” thereby allegedly “negating] the Defendant’s presumption of innocence” due to the “burden-shifting” nature of the questions.

“If there was error in the voir dire, [Davis] waived it by failing to object at trial.” Primas v. State, 231 Ga. App. 861, 862 (2) (501 SE2d 28) (1998). In addition, the questions about which Davis complains followed the requisite statutory form. OCGA § 15-12-164 (a) (1)-(3).

2. Next, Davis challenges a misstatement made during the trial court’s “pre-evidentiary charge” to the jury:

At times I may sustain or uphold objections or direct that you disregard certain testimony or exhibits. You must consider any evidence to which an objection has been made or to which I’ve instructed to you disregard. You must not consider anything you may have read or heard about the case outside the courtroom, whether before or during the trial.

(Emphasis supplied.)

At the conclusion of the charge, the trial court asked for objections. The defense specifically declined to object to the pre-evidentiary charge. “[Davis] made no contemporaneous objections and had no exceptions to the court’s charge to the jury; accordingly, [he] waived the right to raise these issues on appeal. [Cit.]” Smith v. State, 268 Ga. 42, 43 (2) (485 SE2d 189) (1997).

3. Although the trial court charged the jury — repeatedly — regarding a defendant’s presumption of innocence and the State’s burden to prove guilt beyond a reasonable doubt, Davis claims as error another misstatement made by the trial court during its final charge to the jury: “The defendant is presumed to be innocent until proven innocent” (Emphasis supplied.) Davis, however, offers no argument or citation of authority in support of this claim of error, and we deem it abandoned. Court of Appeals Rule 27 (c) (2).

Decided April 6,1999.

Jack J. Menendez, for appellant.

Patrick H. Head, District Attorney, Nancy I. Jordan, Debra H. Bernes, Assistant District Attorneys, for appellee.

Judgment affirmed.

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


text:
    A99A0987.
    MAALOUF v. KNIGHT.
    (515 SE2d 650)
   Eldridge, Judge.

The appellant appeals from the trial court’s order vacating and setting aside the default judgment in favor of the appellant as to the liability of the appellee and dismissing the appellant’s complaint without prejudice.

On July 23, 1997, the vehicle driven by the appellant, Charbel Maalouf, was involved in a collision with the vehicle driven by the appellee, Wanda Knight. On March 23, 1998, the appellant filed his complaint for damages and personal injuries he sustained in the collision. In the complaint, the appellant alleged that the appellee was a resident of 2801 Fairlane Drive, Doraville, Gwinnett County. On April 2, 1998, the deputy sheriff’s entry of service for this address was returned non est and reflected that Fairlane Drive was in DeKalb County. The appellee was subsequently personally served on June 21,1998, with a copy of the appellant’s summons and complaint by a deputy with the Cobb County Sheriff’s Department at an address in Cobb County.

The appellee failed to answer or appear within 45 days after service was perfected. A default judgment as to liability was entered against the appellee on August 13, 1998. On August 27,1998, appellee made a general appearance by filing a pleading entitled “ENTRY OF APPEARANCE BY COUNSEL, NOTIFICATION THAT DEFENDANT WANDA KNIGHT PLACES DAMAGE IN ISSUE, AND DEMAND FOR JURY TRIAL BY A TWELVE PERSON JURY.” Within such pleading, the appellee did not raise the defense of improper venue. On September 15, 1998, the appellee filed a pleading entitled “SPECIAL ENTRY OF APPEARANCE TO CONTEST JURISDICTION AND VENUE, MOTION TO SET ASIDE DEFAULT JUDGMENT, AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT.”

After hearing oral argument from counsel, the trial judge found that the trial court did not have personal jurisdiction over the appellee and that Gwinnett County was not the proper venue. The trial court entered an order on October 29, 1998, vacating and setting aside the default judgment and dismissing the appellant’s complaint without prejudice. In his sole enumeration of error, the appellant alleges that the trial court erred in entering this order. However, since the appellee was personally served with process and objected to personal jurisdiction solely on the basis that she was not a resident of the forum county, the sole issue this Court must decide is one of venue, i.e., whether the trial court erred, based on improper venue, in entering the order vacating and setting aside the default judgment and dismissing the complaint. See Browne v. Trust Co. Bank, 205 Ga. App. 499, 500 (422 SE2d 669) (1992); Aiken v. Bynum, 128 Ga. App. 212, 213 (196 SE2d 180) (1973).

1. “Under OCGA § 9-11-12 (b) the defenses of insufficient service, lack of personal jurisdiction!,] and improper venue must be raised before or at the time of pleading. Failure to raise these defenses either in the answer or by motion filed before or simultaneously with the answer constitutes a waiver of these defenses.” (Citations and punctuation omitted.) Whitley v. Hsu, 260 Ga. 539 (397 SE2d 694) (1990). See also OCGA § 9-11-12 (h); Burnett v. McCarter, 211 Ga. App. 781, 782 (440 SE2d 488) (1994); Echols v. Dyches, 140 Ga. App. 191 (230 SE2d 315) (1976).

One who, being properly served, wishes to rely on the defense of lack of venue, must bring it to the attention of the court at a proper time or the defense is waived. Allowing a case to go to default judgment is no better than allowing a case to be tried on the merits before coming in with a technical defense.

(Citations and punctuation omitted.) Goodman v. Vilston, 197 Ga. App. 718, 720 (399 SE2d 241) (1990); accord Cotton v. Ruck, 157 Ga. App. 824 (278 SE2d 693) (1981); Aiken v. Bynum, supra. In this case, personal service had been perfected on the appellee, and the appellee could have appeared to challenge venue. She chose not to do so within the time prescribed by law and allowed a default judgment to be entered against her prior to making a general appearance. Thus, the defense in abatement of improper venue was waived.

2. The first time the appellee raised her untimely defense of improper'venue was on September 15, 1998, after the default judgment as to appellee’s liability was granted. The venue defense would also have been waived by her making a previous general appearance on August 27, 1998, in which she contested damages and demanded a jury trial, but failed to raise the defense of improper venue. See OCGA § 9-11-12 (b), (h); Hill v. Kaminsky, 160 Ga. App. 630 (287 SE2d 639) (1981). The defense in abatement of lack of venue must be made at the earliest opportunity to plead or it is waived. OCGA § 9-11-12 (b) (3), (h).

Decided April 6,1999.

Rajan Bhandari, for appellant.

Chambers, Mabry, McClelland & Brooks, Lawrence J. Hogan, for appellee.

Therefore, the trial court erred in setting aside the default judgment against the appellee as to liability on the grounds of lack of personal jurisdiction and improper venue and in dismissing the appellant’s complaint without prejudice.

Judgment reversed.

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

       If the appellee had not waived the defense of improper venue, the appropriate course of action for the trial court would have been to transfer this case to the county of proper venue. See Uniform Transfer Rules adopted pursuant to the authority of Art. VI, Sec. IX, Par. I of the 1983 Constitution of the State of Georgia, 251 Ga. 893 (1984); Uniform Superior Court Rule 19, effective July 1, 1985, 253 Ga. 829 (1985); Uniform State Court Rules, effective July 1, 1985, 253 Ga. 887 (1985).


text:
    A99A1007.
    CRENSHAW v. THE STATE.
    (515 SE2d 642)
   Eldridge, Judge.

A Spalding County jury found Walter Herman Crenshaw guilty of stalking. He appeals the conviction, and we affirm.

In a light most favorable to upholding the jury’s verdict,* the evidence shows that the victim, Vickie Kurlinski, knew Walter Crenshaw because she had been in the second grade with Crenshaw’s son. Over the years, she saw Crenshaw only in passing. However, when she was 14 years old, Kurlinski began to see Crenshaw wherever she looked: across the street, at the store, at the post office, beside her house. At age fifteen, she started receiving telephone calls at two or three o’clock in the morning from a man who called himself “Dave”; he told her things like he “wanted to pour champagne all over [her] body and lick it off.” Several weeks after the telephone calls began, Crenshaw stopped his car beside Kurlinski to speak to her. She instantly recognized his voice as that of “Dave.” Kurlinski confronted Crenshaw, telling him “point blank, I know who you are.” The telephone calls from “Dave” ceased.

Vickie Kurlinski received a car for her sixteenth birthday. Thereafter, Crenshaw, driving his silver Plymouth Horizon, followed behind her car on a routine basis. Often, when Kurlinski reached her destination, Crenshaw would exit his own vehicle and walk with her. This conduct halted temporarily when Kurlinski “threw a fit in public in one of the stores [the local Winn-Dixie]. ... I started screaming at him. I screamed at him to stay away from me, not to come near me again, to leave me alone. ... It was successful for maybe three weeks.” After which time, Crenshaw continued to follow her.

Kurlinski married at age 18. She moved from her parents’ home in Spalding County to Friendship Circle Road in Pike County, and contact with Crenshaw temporarily ceased. However, several years later, when she was pregnant with her son, Crenshaw approached Vickie Kurlinski in a local Pike County Wal-Mart. He walked around the store with her, touching her, and “asking if [she] was okay.” Thereafter, Crenshaw’s contact with Kurlinski became more frequent. Crenshaw telephoned her and wrote her letters. Crenshaw began driving up and down Friendship Circle in front of her house.

In 1996, Kurlinski separated from her husband and moved back into her parents’ house in Spalding County. Crenshaw’s activities increased. He would drive by her house “so many times” every day. He would follow her whenever she left her parents’ home. Sometimes he would try to approach her and speak. He “would want to touch. He would want to pat you like he’d known you all his life. He would be patting and touching. And he would pat and touch my child. He would handle my child.” Other times Crenshaw would just follow her. Kurlinski told him to stay away; she created scenes in public: “I screamed at him in Wal-Mart, I did. I screamed.” Thereafter, Kurlinski’s car was “keyed” in the parking lot of the Wal-Mart.

For many years Crenshaw’s actions had put Kurlinski in fear for her safety. However, she also became afraid for the safety of her child. Whilé still in Pike County, she contacted the Pike County Sheriff’s Department. During an investigation, a Pike County deputy found Crenshaw’s car parked in front of Kurlinski’s house on Friendship Circle.

When Kurlinski moved back to her parents’ house, a Spalding County Sheriff’s Deputy investigated a report of “an altercation between Mr. Crenshaw and Mrs. Kurlinski[.]” During the deputy’s interview with Vickie Kurlinski, “she then told [him] the story about being harassed over the past several years.” Crenshaw denied the allegations: “[h]e stated that she was harassing him.”

The deputy began an investigation. One evening, he put Kurlinski’s house under surveillance and saw Crenshaw drive past her house several times. On another day, the deputy followed Kurlinski to the local K-Mart. As the deputy left Kurlinski’s residence, he saw Crenshaw’s car circle around in front of Kurlinski’s house. Thereafter, he spotted Crenshaw’s car “cruising around the K-Mart parking lot. [Crenshaw] went by Mrs. Kurlinski’s vehicle twice. . . . He would stop in front of it and then start back. He’d cruise through again, did the same.” Later, when Kurlinski drove out of the K-Mart parking lot, Crenshaw followed her.

Finally, on another evening, the deputy saw Crenshaw follow Kurlinski to the local Wal-Mart and circle the parking lot twice, stopping in front of Kurlinski’s car each time. During that incident, Crenshaw ultimately parked his car “where he could view her vehicle.” Again, Crenshaw left the store parking lot at the same time as Kurlinski. Crenshaw was arrested and charged with stalking.

At trial, the State introduced similar transaction testimony from two women who had also been harassed by Crenshaw. Heather Pruitt testified that Crenshaw approached her in a local Spalding County Food Depot while she was shopping with her young son. He began talking to Pruitt non-stop. Crenshaw followed her around the store, talking. “It was almost as if he felt like he was our family or something. He continued to rub [m]y son’s back and just talk and talk; you know touch me on the arm and just, you know, trying to act like buddy-buddy with me.” Pruitt was “very creeped out by it.” Thereafter, Crenshaw left the store before Pruitt and was circling the parking lot as Pruitt entered her car. Crenshaw followed Pruitt home. He drove slowly up and down the road in front of her house. Pruitt called the Sheriff’s Department and reported Crenshaw’s actions. A few months later, Crenshaw approached Pruitt in the Wal-Mart. He followed her throughout the store, talking. Several days later, Pruitt again saw Crenshaw following her through Wal-Mart. He drove past her in the Wal-Mart parking lot as she was leaving. Pruitt got the tag number of Crenshaw’s car and called the Sheriff’s Department. “And I said I got his tag number; he’s been following me around in WalMart; you know, I’m terrified. And so they ran his tag number. And that’s how I got linked up with this case[.]”

The other similar transaction witness, 18-year-old Renee Moore, testified that when she was “younger,” she and her friends would go to McDonald’s restaurant, “and. he’d always be sitting in there. And he would always, you know talk to me; be real friendly. But he’d always offer me money, like do you need any money to go watch a movie; do you need any money to play any games or anything.” In February 1996, Moore started working in the local Winn-Dixie.

He would come in there once a week maybe. Just — He’d always come through my line. And he’d always talk to me. He’d always pat me, rub my arm, pat me on the shoulder. And he’d — He knew that I had a new car when I got my car. And I asked him how he knew. He said he seen it sitting in front of my house. And I looked, you know, how do you — . . . And, you know, land of made me think, you know, how did he know where I live and everything.

After Moore got a car, Crenshaw began following her. Moore would see Crenshaw’s car behind her and deliberately drive in another direction in order to see if he would follow her. He did. Crenshaw also began to come into the Winn-Dixie more often. Moore would hide in the office. After Crenshaw called her parents’ house to wish her a happy birthday, Moore and her family contacted the Sheriff’s Department. Held:

1. We find the evidence sufficient for a rational trier of fact to have found Crenshaw guilty beyond a reasonable doubt of stalking Vickie Kurlinski. Jackson v. Virginia, supra.

2. Crenshaw contends that (a) the State failed to articulate a proper purpose for the introduction of the similar transaction evidence and, thus, (b) the trial court failed to limit the jury’s consideration of such evidence to the sole purpose for which it had been admitted. This contention is meritless.

(a) At the Rule 31.3 hearing, the prosecutor stated that the similar transaction incidents were “almost identical.” After articulating the similarity between Crenshaw’s conduct in the case-in-chief and the independent incidents, the prosecutor stated, “These are all following the same kind of touching conduct, the same type of frightening conduct that this man does on a regular basis.” Following the admission of the evidence, the prosecutor then reiterated that “I believe we can go through basically the same evidence we did because it’s a course of conduct.” The demonstration of a similar course of conduct is a proper purpose for the admission of similar transaction evidence. See, e.g., Norris v. State, 230 Ga. App. 492, 493 (1) (496 SE2d 781) (1998).

(b)

“[A] defendant’s failure to request an instruction limiting the jury’s consideration of extrinsic act evidence to the purpose(s) for which the evidence was admitted at the [Rule] 31.3 hearing precludes a finding of reversible error in the trial court’s failure to limit its instruction sua sponte. . . . Because [Crenshaw] did not submit a request to charge limiting the jury’s consideration of the extrinsic act evidence, the trial court did not err in failing to limit the jury’s consideration any more than it did.

Decided April 6,1999.

Lee Sexton, for appellant.

Newton & Howell, Griffin E. Howell III, for appellee.

Murphy v. State, 270 Ga. 72, 75 (508 SE2d 399) (1998). See also State v. Belt, 269 Ga. 763 (505 SE2d 1) (1998).

3. Crenshaw complains that the trial court did not ask for exceptions at the conclusion of the jury charges. However, a trial court’s failure to inquire of counsel whether there are exceptions to the charge does not result in reversible error. It results in a non-waiver of jury charge issues on appeal. Lumpkin v. State, 249 Ga. 834 (295 SE2d 86) (1982); Jackson v. State, 246 Ga. 459 (271 SE2d 855) (1980). Clearly, such result does not prejudice a defendant. In any event, we note that Crenshaw has not identified any error in the charge that would have merited an exception in the first place.

Judgment affirmed.

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

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

       A scratch on a vehicle often created by scraping a metal key on the body of the vehicle.


text:
    A99A1078.
    CANAL INSURANCE COMPANY v. TULLIS.
    (515 SE2d 649)
   Eldridge, Judge.

This appeal involves a property damage subrogation suit filed by the appellant Canal Insurance Company (“Canal”). At the close of Canal’s case, the trial court directed a verdict in favor of the appellee, Danny Ray Tullis. Canal appeals from this ruling.

On June 18, 1996, Tullis, while driving a 1978 Ford dump truck, was involved in a motor vehicle collision with a dump truck owned by Helton Trucking Company (“Helton Trucking”) which was being driven by Mr. Tommy Davis. The collision occurred on the property of Vulcan Materials in Norcross, Georgia. At the time of the collision, Helton Trucking’s dump truck was covered by a policy of insurance issued by Canal. A claim was made by Helton Trucking to Canal for the property damage caused to its dump truck in the collision. Pursuant to the collision coverage contained in the policy of insurance issued by Canal, Canal paid $19,389.59 for those repairs. At trial, Canal sought recovery of both the $19,389.59 it paid for repairs and the $1,000 deductible.

1. In its first enumeration of error, Canal alleges that the trial court erred in granting the appellee’s motion for directed verdict on the grounds that Canal failed to prove that the cost of repairs of its insured’s vehicle did not exceed the fair market value of the vehicle immediately before the accident. Canal argues that Georgia law does not require proof of the fair market value of the vehicle immediately prior to the collision when a plaintiff seeks recovery for the cost of repairs only and does not also seek recovery for loss of use and diminution in value. We disagree.

Recovery for property damage to an automobile is an item of special damages. Special damages are those which actually flow from a tortious act; they must be proved in order to be recovered. OCGA § 51-12-2 (b). When a plaintiff seeks recovery for damages to an automobile, he may claim the reasonable value of repairs made necessary by the collision, together with hire on the vehicle while rendered incapable of use, and the value of any permanent impairment, provided the aggregate amount of these items does not exceed the fair market value of the automobile before the injury. In the alternative, plaintiff may prove the difference in fair market value of the property before the injury and after-wards.

(Citations and punctuation omitted; emphasis in original.) Sykes v. Sin, 229 Ga. App. 155-156 (493 SE2d 571) (1997). See Myers v. Thornton, 224 Ga. App. 326 (480 SE2d 334) (1997); Archer v. Monroe, 165 Ga. App. 724 (302 SE2d 583) (1983).

In this case, the appellant opted to prove the damages to its insured’s dump truck by showing the reasonable and necessary cost of repairs. While Canal presented evidence at trial showing the cost of repairs, it failed to put up any evidence of the fair market value of its insured’s dump truck immediately before the collision. In fact, Canal concedes on appeal that it did not present any evidence of the fair market value of its insured’s dump truck at trial. “[AJbsent proof of the fair market value immediately prior to the collision, any other special damages cannot be calculated as coming within the maximum limit on recovery. [Cit.]” Sykes v. Sin, supra at 158. See Morris v. Bonner, 183 Ga. App. 499, 501 (359 SE2d 244) (1987). This is true even when a plaintiff is only seeking recovery for the reasonable value of repairs made necessary by the collision, and is not also seeking recovery for hire on the vehicle while rendered incapable of use or the value of any permanent impairment. The total amount of property damages recovered by a plaintiff for damages caused to his vehicle as the result of a collision “cannot exceed the fair market value of the [vehicle] prior to the collision and place the plaintiff in a position superior to that which he previously held.” Sykes v. Sin, supra at 158.

Decided April 6,1999

Austin & Sparks, John B. Austin, for appellant.

Jeffrey R. Sliz, for appellee.

“Where there is no conflict in the evidence as to any material issue, and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed. OCGA § 9-11-50.” (Citations and punctuation omitted.) Morris v. Bonner, supra at 501. “In view of the absence of any evidence showing the market value of plaintiff’s vehicle [immediately] before the collision in the case sub judice, plaintiff has failed to carry [its] burden under either of the above formulas.” (Emphasis in original.) Id. Consequently, the trial court did not err in directing a verdict in favor of the appellee.

2. Our holding in Division 1 renders it unnecessary that we address the issue of whether the trial court erred in holding that Canal did not have standing to pursue a subrogation claim to collect its insured’s $1,000 deductible.

Judgment affirmed.

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

       The collision coverage contained in Helton Trucking’s collision policy contained a $1,000 deductible.


author: McMURRAY, Presiding Judge.

text:
    A99A0365.
    RUBY-COLLINS, INC. v. COBB COUNTY.
    (515 SE2d 187)
   McMURRAY, Presiding Judge.

On February 9, 1995, plaintiff Cobb County, Georgia (“the County”) commenced this breach of contract action against defendant Ruby-Collins, Inc. (“RCI”) and RCI’s surety, defendant Reliance Insurance Company (“Reliance”), alleging RCI defectively performed its obligations under a construction contract for the expansion of a water reclamation facility known as Cobb County’s Noonday Creek Treatment Center. The complaint sought additional damages for delayed performance and for the expenses of litigation. As against Reliance, the County sought contractual damages and statutory penalties under OCGA § 10-7-30. Defendants’ joint answer denied the material allegations of any breach and raised multiple counterclaims. Count 2 of the counterclaim invoked 42 USC § 1983, alleging an unconstitutional taking without due process of law. This was based upon a resolution passed by the Cobb County Board of Commissioners that purportedly rendered RCI “ineligible to enter into any contracts and would be removed from the list of contractors prequalified to bid on construction contracts with the Cobb County Water and Sewer Department.” RCI alleged this was done without notice or an opportunity to appear and give evidence, amounting to a “blacklisting” of RCI.

After discovery, cross-motions for partial summary judgment as to Count 2 of RCI’s counterclaim were filed. The following chronology is undisputed:

Between 1979 and 1993, RCI successfully completed 17 projects for the County, valued at more than $78 million. In June 1991, the County awarded defendant RCI an $18 million contract for renovations and additions to the Noonday Creek Treatment Center, including a specially designed $4 million incinerator to be constructed by a subcontractor, Enviroquip, Inc. By July 1993, RCI had substantially completed performance of this $18 million contract and this work was accepted by the County. Nevertheless, on November 24, 1994, the County Attorney sent RCI a formal notice of termination due to the alleged default of RCI. The County contended that the specially designed incinerator, installed by the subcontractor Enviroquip, did not perform to the County’s satisfaction. Despite RCI’s recently approved application to remain on the list of pre-qualified contractors for County water and sewage construction, on January 24, 1995, the County Board of Commissioners voted to remove RCI and Enviroquip

from the Water System’s Prequalified List of Contractors until legal issues relating to said project are resolved and further authorize [d] the Chairman to execute the necessary documents (approval to add [RCI] and/or Enviroquip back to the Prequalified List of Contractors must be obtained from the Board of Commissioners).

The County concedes the effect of this resolution was to remove RCI “from the list of eligible bidders for future projects . . ., pending resolution of disputes on the Noonday Creek project.”

The County’s motion for partial summary judgment was granted and, pursuant to OCGA § 9-11-56 (h), RCI brings this direct appeal. In six related enumerations of error, RCI contends the trial court erred in failing to recognize a property or liberty interest protected by due process in not being removed from the list of contractors prequalified to bid on County public works. Held:

1.

The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty and property. When protected interests are implicated, the right to some kind of prior hearing is paramount. But the range of interests protected by procedural due process is not infinite.

Bd. of Regents of State Colleges v. Roth, 408 U. S. 564, 569-570 (I) (92 SC 2701, 33 LE2d 548).

Property interests . . . are not created by the [federal] Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law. . . .

Bd. of Regents of State Colleges v. Roth, 408 U. S. 564, 577 (III), supra.

To have a property interest in a [claimed government] benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.

Bd. of Regents of State Colleges v. Roth, 408 U. S. 564, 577 (III), supra.

OCGA § 36-10-2 provides:

Whenever it becomes necessary to build or repair any courthouse, jail, bridge, causeway, or other public works in any county, the county governing authority shall cause the same to be built or repaired by letting out the contract therefor to the lowest responsible bidder, . . . provided that such county authorities shall have authority to reject any and all bids. . . .

(Emphasis supplied.) Contrary to RCI’s contentions, cases such as Ga. Branch, Associated Gen. Contractors &c. v. City of Atlanta, 253 Ga. 397 (321 SE2d 325) and Hilton Constr. Co. v. Rockdale County Bd. of Ed., 245 Ga. 533 (266 SE2d 157), interpreting “lowest-responsible-bidder” language of similar laws, do not confer upon a potential bidder any legitimate claim of entitlement to be prequalified to submit bids. Rather, those cases address the protected interest of one who was demonstrably the lowest bidder who nevertheless was not awarded a contract. Moreover, those cases do not address language contained in the express statutory proviso applicable here: that the “county authorities shall have authority to reject any and all bids at the public letting.” OCGA § 36-10-2. According to Black’s Law Dictionary (4th ed. 1951), p. 120, the term “Any” means “Some; one out of many; an indefinite number. [Cit.]” The existence of such a discretion to reject bids is incompatible with an objectively reasonable expectation of legitimate claim of entitlement by any prospective bidder. Since, under Georgia law, the county authority may reject some bids or any indefinite number of bids or all bids for a public works, it follows that no particular prospective bidder has any legitimate claim of entitlement to be able to bid on any future contract the government may let. Consequently, we hold that RCI has no protected property interest in remaining on a list of potential bidders pre-qualified to bid on future public works contracts.

Decided March 25,1999

Reconsideration denied April 7,1999

Schreeder, Wheeler & Flint, David H. Flint, Lynn C. Stewart, Alston & Bird, William H. Hughes, Jr., for appellant.

Freeman, Mathis & Gary, T. Bart Gary, Dorothy H. Bishop, for appellee.

2. “ ‘[W]here a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.’ Wisconsin v. Constantineau, 400 U. S. 433, 437 [(91 SC 507, 27 LE2d 515)].” Bd. of Regents of State Colleges v. Roth, 408 U. S. 564, 573 (II), supra. But a government contract potential bidder’s protected liberty interest in its commercial reputation is not implicated except where the potential bidder is suspended or debarred based on allegations of fraud or dishonesty. Transco Security &c. v. Freeman, 639 F2d 318, 321 [1, 2] (6th Cir. 1981). In the case sub judice, there is no allegation of fraud or dishonesty on the part of defendant RCI, and so there is no corresponding due process requirement of notice and some kind of hearing in order to protect RCI’s reputation for honesty and integrity.

3. Remaining contentions have been considered and are found to be without merit. The trial court correctly granted summary judgment as to RCI’s second counterclaim alleging an unconstitutional governmental deprivation of a protected interest without due process of law.

Judgment affirmed.

Andrews and Ruffin, JJ., concur.


author: Smith, Judge.

text:
    A99A0031.
    MANNING v. THE STATE.
    (515 SE2d 663)
   Smith, Judge.

Jeree Manning was indicted on one count of violating the Georgia Controlled Substances Act for possessing marijuana with intent to distribute. She was found guilty by a jury, her motion for new trial, as amended, was denied, and she appeals. In her sole enumeration of error, she contends the trial court erred in denying her motion for mistrial when the State elicited a response from the arresting officer showing that he had arrested Manning on a different occasion shortly before the arrest for the charged crime. We find no reversible error, and we affirm.

Before trial, Manning moved the court to prohibit the State from mentioning any prior arrests, particularly because the officer who arrested her for the charged crime had also arrested her for an unrelated offense about three weeks before that. But contrary to Manning’s suggestion in her enumeration of error that the State was ordered not to mention the previous arrest, the trial court did not rule on the motion. Rather, the trial court asked if the State wished to respond to the motion, and the prosecutor responded by stating that he did not “intend to make any reference. We will instruct the witness accordingly.”

It is true that the State elicited a response from the arresting officer that clearly was designed to allude to the prior arrest. But this was done in rebuttal.

Officer E. E. Earls of the Atlanta Police Department Red Dog Task Force testified that he was conducting surveillance near Manning’s home on November 15, 1994, because of drug activity. Using binoculars, from his place of concealment he observed some people smoking marijuana in front of Manning’s house, and then he saw Manning and a man walk over to a car parked in the driveway. Manning entered the car and removed a plastic bag containing several smaller bags of what appeared to be marijuana, and handed it to the man. The man then took the individual bags and spread them out along a wall near the car. Manning walked to the edge of the driveway and began looking up and down the street, and other people began coming up to the man and buying the baggies of marijuana. Earls observed four or five of these transactions before calling for backup and making arrests. In Earls’s opinion, based on his experience, Manning was acting as a lookout. Manning and the man making the sales were both arrested. No mention of the prior arrest was made during the State’s case-in-chief.

During Manning’s presentation of evidence, she called her next-door neighbor. This witness testified to Manning’s good character by answering the statutory questions concerning reputation. He also was a fact witness, and he disagreed with Earls’s version of the facts. He testified that Manning was inside her house until police officers handcuffed several people in her front yard, including the neighbor himself (whose wife had called the police), and that Manning was arrested as soon as she stepped outside the house.

The State, apparently believing that the neighbor was confusing the events of November 15, 1994, with events that transpired on October 4, 1994 (the date of Manning’s previous arrest), sought to show that the neighbor was testifying to events that took place on the date of the prior arrest, because on that date Manning apparently was arrested immediately upon stepping out of her house. The State asked the neighbor on cross-examination: “Are you sure this didn’t happen on October 4th?” The witness responded that he was “positive.” The State then asked: “Okay. What happened on October 4th,” whereupon Manning objected. A colloquy ensued, during which the State first argued that it was entitled to show bad character by referencing the prior arrest because Manning had placed her character in issue. The trial court correctly rejected this argument, noting that “[a]n arrest really doesn’t tell you anything.” The court observed that the State had the right to cross-examine the witness to show that he was confusing two dates, but it had to be done very carefully because “other considerations,” such as prejudice, must be taken into account, and no mention was to be made of the October 4 arrest. The cross-examination of the neighbor then proceeded without further incident.

Manning testified in her own behalf. She agreed with her neighbor’s version of the facts, testifying that she was inside when the others were detained and that she was arrested as soon as she stepped out of the house. The State asked Manning on cross-examination if, at the time of this incident, she told the police officers that her father was a sergeant with the Atlanta Police Department, and she admitted she “sure did.”

The State then recalled Earls in rebuttal, and he testified that Manning made no statements to him at the time of this incident. Continuing, the State then tried to ask Earls if Manning had “ever made the statement that she was —,” when Manning interposed an objection. The trial court cautioned the State against leading the witness, and the State asked Earls if Manning had made a statement to him on October 4. Again Manning objected, and the court allowed this question to be answered, so long as the witness answered narrowly and specifically. The same question was asked and answered once more, and Manning moved for a mistrial. The court denied the motion.

The court allowed the State another question, over objection, and the prosecutor asked: “What was the statement made to you by the defendant on October 4, 1994?” Before Manning’s next objection, Earls managed to respond: “She told me that I could not arrest her because —.” Manning objected, again moved for a mistrial, and requested a curative instruction. Although the court sustained Manning’s objection, the judge did not rule on the renewed motion for mistrial and refhsed the request for a curative instruction.

Decided April 7,1999.

John R. Mayer, for appellant.

On appeal, Manning contends the trial court erred in denying the motion for mistrial. The transcript shows that the only denial of a motion for mistrial came after Earls testified only that Manning had made a statement to him on October 4. No ground for declaring a mistrial had been shown at that point. The prior arrest had not yet been mentioned, and Manning was not unduly prejudiced by testimony that on October 4 she had said something to Earls. No ruling was made on the second motion for mistrial, so it cannot form the basis for the enumeration of error.

The State was incorrect in arguing that because Manning had introduced evidence of good character, the State could introduce the arrest as impeachment evidence showing bad character. When a defendant chooses to place his character in issue by offering the testimony of a witness as to his general good reputation in the community, the State may prove the defendant’s general bad reputation and may also show specific instances of bad character by presenting competent evidence that the defendant has been convicted of prior offenses. Jones v. State, 257 Ga. 753, 758 (363 SE2d 529) (1988). But testimony showing a witness has been arrested is not a proper method of impeachment. Hollis v. State, 225 Ga. App. 370, 371 (2) (484 SE2d 54) (1997).

The State correctly argues that it was entitled to impeach both the neighbor and Manning by disproving the facts testified to by them. OCGA § 24-9-82. But in this case, as pointed out by the trial court, it was not necessary to refer to Manning’s arrest to accomplish this end. We must agree with Manning that the mention of the prior arrest may have prejudiced her; the evidence was indeed in conflict and it was not overwhelming. We note that this possible prejudice to Maiming could have been cured by a proper and immediate instruction to the jury. But this does not provide a basis for reversal, because Manning has not enumerated as error the trial court’s refusal to give such an instruction and may not enlarge her enumeration of error to encompass such a contention. Young v. State, 217 Ga. App. 575, 576 (1) (458 SE2d 391) (1995).

Judgment affirmed

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

Paul L. Howard, Jr., District Attorney, Peggy R. Katz, Assistant District Attorney, for appellee.

       Manning testified she was actually inside another neighbor’s home when the others were handcuffed.


author: Judge Harold R. Banke.

text:
    A99A0062.
    CIT GROUP/EQUIPMENT FINANCING, INC. v. NORTHBROOK PROPERTY & CASUALTY INSURANCE COMPANY et al.
    (515 SE2d 845)
   Judge Harold R. Banke.

CIT Group/Equipment Financing, Inc. (“CIT”) appeals the summary judgment awarded to Northbrook Property & Casualty Insurance Company (“Northbrook”) on CIT’s breach of contract claim.

The underlying case arose after Kevin Powell entered into a Security Agreement — Conditional Sale Contract with Pioneer Machinery, Inc. (“Pioneer”) on October 27, 1994, to purchase a piece of machinery known as a Timberjack feller buncher. After making a cash down payment of $45,400, Powell became obligated to pay $232,011.36 over 48 months. After the sale, Pioneer assigned the sales contract and financing agreement with all rights and remedies to CIT.

The security agreement required Powell to procure and maintain insurance against all risks of loss or physical damage to the equipment. Under the express terms of the security agreement, CIT became Powell’s “attorney in fact” and obtained the rights to make, settle, and adjust any claims made under an insurance policy and the power to endorse Powell’s name on any payment of an insurance claim. Powell purchased an insurance policy with a limit of $227,000 from Northbrook on which CIT was designated as the loss payee.

About five months later, on April 15, 1995, a fire substantially damaged or destroyed the machinery, and Powell promptly notified Northbrook, submitting a proof of loss for $211,000. Following an investigation, Northbrook refused to pay Powell’s claim, asserting that Powell either had intentionally set the fire or had directed the fire to be intentionally set. Northbrook also denied the claim on the basis that Powell had misrepresented and concealed material facts concerning the loss.

After Northbrook refused to cover the loss, CIT and Pioneer sued Powell and Northbrook. CIT claimed that as of March 14, 1997, Powell owed $213,636.71, and an additional $57,000 in late fees plus attorney fees. Powell cross-claimed as Kevin Powell d/b/a Kevin Powell Logging (“Powell”) against Northbrook seeking $227,000 plus consequential damages. Northbrook moved for summary judgment against Pioneer and CIT and against Powell on the cross-claim. Determining that CIT as the loss payee was not entitled to bring an action in its own name because its rights were merely derivative of Powell’s rights, the trial court granted summary judgment to North-brook. The court denied summary judgment in part to Northbrook on Powell’s cross-claim. CIT appeals. Held:

In its sole enumeration of error, CIT contends that the trial court erred in granting summary judgment to Northbrook based on the court’s finding that Powell had some interest in the policy proceeds. CIT asserts that the undisputed evidence shows that it was entitled to any and all policy proceeds.

CIT obtained rights to the insurance proceeds as the loss payee under the insurance contract between Powell and Northbrook and also as the assignee under the terms of the sales contract and security agreement. See Palmer v. Mitchell County Fed. Sav. &c. Assn., 189 Ga. App. 646 (377 SE2d 4) (1988) (both the insurance contract and the security deed entitled the lender to the insurance proceeds). As the designated loss payee under Powell’s insurance policy, CIT was entitled to all of the insurance proceeds up to the total amount of the debt secured by the fire-damaged collateral. Beasley v. Agricredit Acceptance Corp., 224 Ga. App. 372, 374 (2) (480 SE2d 257) (1997). Powell’s interest in the insurance proceeds existed, if at all, only to the extent that the insurance proceeds exceeded the debt he owed to CIT. See Rice v. State Farm Fire &c. Co., 208 Ga. App. 166, 170 (2) (430 SE2d 75) (1993).

The right of an insured, like Powell, to insurance proceeds, claimed pursuant to an insurance contract containing a loss payee endorsement, is determined at the time of loss and to the extent of the insured’s established actual loss. See Ga. Farm &c. Ins. Co. v. Brewer, 202 Ga. App. 127, 128-129 (413 SE2d 770) (1991). Where the evidence demonstrates that the amount of debt is in excess of the insurance proceeds, a debtor has no interest in the policy proceeds. Canal Ins. Co. v. Savannah Bank &c. Co., 181 Ga. App. 520, 523 (4) (352 SE2d 835) (1987).

But, here, the evidence was disputed or incomplete as to the actual amount of the insurance proceeds at issue or the amount of the established actual loss. The policy required Northbrook to pay only the least of the following calculations: (1) the actual cash value of the machine at the time of the fire; or (2) the cost to repair or replace the damaged machine with that of like kind; or (3) the policy limit. Northbrook offered no evidence to establish the machine’s actual cash value at the time of the fire or the cost to repair or replace it. According to Powell, he had the machine examined after the fire, and he testified, “[t]he machine is not totaled. It can be repaired pretty easy [sic].” Northbrook offered no evidence that notwithstanding the alleged misconduct of Powell, it intended to pay $227,000, the policy limit. Instead, Northbrook merely contended that Powell’s interest was the amount sought by Powell nearly two years after the fire, $227,000 plus consequential damages, the total of Powell’s cross-claim. See Brewer, 202 Ga. App. at 128 (right of mortgagee to insurance proceeds determined at time of the loss). In these circumstances, even assuming arguendo that this was a covered event, it is not possible to determine the amount of the insurance proceeds at issue. Nor did the record establish the amount of Powell’s indebtedness under the sales contract and security agreement as of the date of loss. In the absence of this information, it cannot be said as a matter of law that CIT lacked standing to sue in its own right. See Canal Ins. Co., 181 Ga. App. at 523 (4). In light of these disputed material facts and because it cannot be said that CIT would not be entitled to recover under any discernible circumstances, we must reverse. Williams v. Dept. of Corrections, 224 Ga. App. 571, 572 (481 SE2d 272) (1997); Rice v. Huff, 221 Ga. App. 592 (472 SE2d 140) (1996).

Decided April 7,1999.

Chambless, Higdon & Carson, Emmitte H. Griggs, David N. Nelson, for appellant.

Swift, Currie, McGhee & Hiers, Stephen M. Schatz, for appellees.

Judgment reversed.

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

       Buyer [Powell] hereby assigns to Seller [CIT after Pioneer assigned its rights to CIT] any monies which may become payable under any such policy of insurance and irrevocably constitutes and appoints Seller as Buyer’s attorney in fact (a) to hold each original insurance policy, (b) to make, settle and adjust claims under each policy of insurance, (c) to make claims for any monies which may become payable under such and other insurance on the Collateral . . . and (d) to endorse Buyer’s name on any check, draft or other instrument received in payment of claims or returned or unearned premiums under each policy and to apply the funds to the payment of the indebtedness owing to Seller.


author: Barnes, Judge.

text:
    A99A0232, A99A0233.
    BOXER X v. THE STATE (two cases).
    (515 SE2d 668)
   Barnes, Judge.

In February 1997, a jury convicted Boxer X of thirteen counts, including five counts of aggravated assault, one count of kidnapping, and one count of interference with government property in Case No. A99A0233. The trial court denied his motion for new trial in April 1998, and he appealed. Then in July 1997, another jury convicted Boxer X of escape, two kidnapping counts, and criminal attempt to commit robbery in Case No. A99A0232. The trial court denied his motion for new trial in July 1998, and he again appealed. We consolidated the appeals and affirm the convictions.

Case No. A99A0233

In Case No. A99A0233, Boxer X contends that insufficient evidence supports his convictions of the five aggravated assault counts and the kidnapping and interference with government property counts. He further asserts that the trial court erred in its jury charge on justification, in refusing to give certain requests to charge, and in sentencing him to life imprisonment without parole.

[0]n appeal the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility. Conflicts in the testimony of the witnesses [are] a matter of credibility for the jury to resolve.

(Citations and punctuation omitted; emphasis supplied.) Taylor v. State, 226 Ga. App. 254, 255 (485 SE2d 830) (1997). Viewed in the light most favorable to the verdict, the facts surrounding the first set of convictions are as follows: Nadine Jones and Boxer X had a long-term relationship and two children together. They did not live together. As Jones removed laundry from a clothesline, Boxer X came into the yard. The two started arguing, and Boxer X tried to make Jones leave with him. She refused. Boxer X grabbed her around the waist, held a knife to her throat, and dragged her across the yard with Jones’s two daughters trying to pull him off their mother. At that point Will Crutchfield, who rented the house where Jones and her children stayed, fired two pistol shots into the air, trying to startle Boxer X into letting Jones go. Boxer X punched his pregnant daughter, Nellie Farley, in the stomach, swung his knife at her and Jones’s other daughter, Shannon Griffin, and dragged Jones into his van. He drove off holding the knife to her throat, then rammed a police car containing two officers that had pulled in front of the van to stop it. When the van became hung up on the police car in front of it, Boxer X ran off on foot. He later turned himself in to the police.

1. Boxer X argues that the verdicts convicting him of five counts of aggravated assault and one count each of kidnapping and interference with government property were contrary to the law and the weight of the evidence. The aggravated assault counts were as follows: assaulting Nadine Jones with a knife; assaulting Nellie Farley with a knife; assaulting Shannon Griffin with a knife; and assaulting two police officers by ramming their car with his van. The kidnapping charge involved abducting Nadine Jones and holding her against her will. Finally, the interference with government property charge stemmed from ramming the police car with the van.

We find the evidence sufficient for a rational trier of fact to find Boxer X guilty of the charges beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Boxer X further asserts that the trial court erred in denying his motion for mistrial. He argues that the error arose from the cumulative effect of the prosecutor improperly introducing his character into evidence, and then repeatedly instructing the State’s witnesses in court but out of the jury’s hearing.

At trial, the prosecutor asked Nadine Jones if she had had intimate relations with Boxer X within the previous year. She responded, Wes, when he got out of prison.” Defense counsel moved for a mistrial. The trial court denied the motion but instructed the jury to disregard any reference to Boxer X having gotten out of prison. Defense counsel renewed his motion before the trial court delivered the curative instruction, which the court again denied.

Defense counsel concedes that mere reference to a defendant’s prior incarceration in prison without more evidence is not sufficient to warrant a mistrial. However, he argues that the prosecutor’s repeated instructions to additional witnesses, out of earshot but within eyesight of the jury, prejudiced Boxer X to the extent that a mistrial was warranted. However, the record shows that defense counsel failed to request a mistrial when the prosecutor instructed the State’s witnesses in front of the jury. Since he failed to make a timely objection at trial, Boxer X waived his right to raise this issue on appeal. Strawder v. State, 207 Ga. App. 365 (1) (427 SE2d 792) (1993).

3. Boxer X then contends that the trial court’s charge on his defense of justification was so confusing and unclear that the jury was incapable of understanding the defense. While the trial judge gave the justification charge that Boxer X requested, he also charged a garbled version of OCGA § 16-3-21 (b) (1), (2), which addresses the circumstances under which a person is not justified in using force. The trial judge charged the jury that

A person who is not justified in using force and if that person initially provokes the use of force against himself with the intent to use such force as an excuse to inflict bodily harm upon the assailant or is attempting to commit, committing or fleeing after the commission or attempted commission of a felony,

adding the words “who” and “and” to the statutory language of the charge as indicated.

An erroneous charge does not warrant a reversal unless it was harmful, and in determining harm, we look to the jury instructions as a whole. Foote v. State, 265 Ga. 58, 59 (2) (455 SE2d 579) (1995). Just before giving this garbled charge, the trial court gave Boxer X’s requested charge on justification correctly and in full as follows:

[I]f you find that the Defendant’s conduct was justified, that is a defense to prosecution for any crime based on that conduct. A person is justified in threatening or using force against another person when and to the extent that he reasonably believes that such threat or force is necessary to defend himself or a third person against the other’s imminent use of unlawful force. A person is justified in using force which is intended to cause great bodily harm only if that person reasonable [sic] believes that such force is necessary to prevent great bodily injury to himself or a third person or to prevent the commission of a forcible felony.

The charge of which Boxer X complains describes when the justification defense will not apply. Thus we fail to see how the trial court’s misstatement could have harmed him. A verbal inaccuracy in a charge that clearly could not have misled or confused the jury is not reversible error. Harper v. State, 155 Ga. App. 764, 765-766 (4) (272 SE2d 736) (1980). We are satisfied that the charge as a whole adequately and fairly conveyed the defense to the jury.

4. Boxer X asserts that the trial court erred in failing to give his requested charge on false imprisonment as a lesser included offense of kidnapping. This charge was not warranted by the evidence since any detention of Nadine Jones was accompanied by the element of asportation. Under the evidence presented at trial, Boxer X was either guilty of the offense of kidnapping or not guilty of any offense. There was no evidence raising the lesser offense. Brown v. State, 232 Ga. App. 787 (504 SE2d 452) (1998); Pope v. State, 221 Ga. App. 578, 579 (2) (472 SE2d 111) (1996).

5. Boxer X argues that his sentence of life in prison without parole pursuant to OCGA § 17-10-7 is cruel and unusual punishment based on the circumstances of the crimes and his lack of intent to harm anyone. This challenge to the constitutionality of the statute is raised for the first time on appeal and therefore cannot be considered. Westmoreland v. State, 215 Ga. App. 21 (449 SE2d 640) (1994).

Case No. A99A0232

In Case No. A99A0232, a jury convicted Boxer X of escape, two kidnapping counts, and criminal attempt to commit robbery. He appeals the convictions, alleging that the trial court erred in refusing to allow him to represent himself at trial; allowing into evidence the sentence listing all his previous convictions; refusing certain requests to charge; and denying his motion for mistrial. He also alleges that the State failed to prove venue and that insufficient evidence supported the kidnapping and attempted robbery counts.

As in Division 1 above, Boxer X no longer enjoys a presumption of innocence on appeal, and we view the evidence in a light most favorable to the verdict. We determine only sufficiency and do not weigh the evidence or determine witness credibility. The jury must resolve conflicts in witness testimony. Taylor v. State, 226 Ga. App. at 255. Viewed in the light most favorable to the verdict, the facts surrounding the second set of convictions are as follows: Boxer X was attending educational classes at the Putnam County Jail, where he was incarcerated following the convictions described above. At the end of class, he helped his instructor carry some supplies to an adjoining conference room used for storage and located outside the secured part of the jail. To get to the storage room, a guard had to hit a button that electronically unlocked the door. That guard testified that he recognized the instructor who indicated that he wanted to go through the door, but never saw Boxer X behind the instructor.

Once the two men deposited the supplies in the conference room, Boxer X asked if he could duck back into the room and get a few packs of sugar. The instructor said yes, and after 20 seconds or so opened the door to look for Boxer X, who had gone through another unlocked door, into the lobby, and out the front door. He made his way about a mile down the road to Corprinicus Farley’s house, knocked on the door and said he was looking for a ride to the hospital because he had wrecked his car and hurt his leg. Boxer X asked Farley for the keys to a car parked outside, then reached in the door and sprayed an irritant into Farley’s eyes. The defendant chased Farley through the house and out into the yard, but gave up the chase once Farley began running up the road.

Boxer X proceeded to the Jacksons’ residence, knocked on the door and told 13-year-old Jonathan Jackson he had wrecked his car and needed a ride to the hospital. The defendant pushed his way inside the house and repeated his request to Jonathan’s mother, Angela Jackson. She agreed to drive him to the hospital, but while they were in the driveway Boxer X said he needed to go by his car first to get some valuables. She then agreed to take him to his car, but after driving some distance he told the Jacksons he had just killed someone. He refused to leave the car when Jackson asked him and insisted on taking the driver’s seat. He took $60 from Jackson’s purse and proceeded to a DeKalb County rest stop. At the rest stop he made Jonathan Jackson give him his pants and coat to wear, then the three continued driving toward Atlanta. On the way, Boxer X stopped to make a phone call. When he got back in the car, he examined Jackson’s driver’s license. He then told her that he knew where she lived, and if she told anyone about him he would come and get her. When they got to Moreland Avenue, Boxer X got out of the car and gave Jackson $2 for gas money to get home. He walked away, and Jackson and her son returned to Madison.

6. Boxer X argues that the convictions for kidnapping and criminal attempt to commit robbery are contrary to the law and the weight of the evidence. As with enumeration one above, we find the evidence sufficient to support the convictions. Jackson v. Virginia, 443 U. S. 307.

7. Boxer X submits that the trial court erred in refusing to allow him to represent himself, a request he first made after a full day of testimony.

The denial of this request to represent himself, a request made after the testimony of the State’s [fifth] witness, cannot serve as the basis for reversal since a defendant “cannot frivolously change his mind in midstream” by asserting his right to self-representation in the middle of his trial. [Cit.]

Thaxton v. State, 260 Ga. 141, 142 (2) (390 SE2d 841) (1990).

8. Boxer X next asserts that the trial court erred in admitting into evidence a certified copy of his sentence on all 13 counts from the earlier case. He argues that the document should have been redacted to show only one felony, and not show the kidnapping conviction since the trial court had earlier denied the prosecution’s motion to present that conviction as evidence of a similar transaction. Introducing the sentence allowed the prosecutor to get in through the back door what he could not get in through the front, defense counsel argues.

OCGA § 16-10-52 (a) defines escape as intentionally escaping from lawful custody after being convicted of a felony. Lawful confinement is a necessary element of the offense, and the State may prove this element by introducing evidence of prior felony convictions. Norris v. State, 227 Ga. App. 616, 617 (1) (489 SE2d 875) (1997); Dixon v. State, 234 Ga. 157, 158 (1) (215 SE2d 5) (1975).

[T]he general rule which prohibits references to other crimes by the accused is not fully applicable to a trial for escape, which by its nature alludes to a prior act resulting in incarceration or conviction. Moreover, evidence of the escapee’s original crime is often an unavoidable aspect of the state’s proof with regard to the lawfulness of confinement.

Fears v. State, 138 Ga. App. 885, 887 (2) (227 SE2d 785) (1976).

Here, the prosecution did not elicit from witnesses any details regarding Boxer X’s previous convictions, but merely asked the Putnam County sheriff to identify a certified copy of Boxer X’s sentence to show that he was lawfully confined under a felony conviction. We decline to find that the trial court abused its discretion when it allowed the prosecution to prove the offense of escape by introducing Boxer X’s sentence from the previous trial. See Bland v. State, 264 Ga. 610, 611 (449 SE2d 116) (1994).

9. Defendant contends that the prosecution failed to establish venue in Putnam County for the kidnapping offense, arguing that the victim’s testimony — that she thought she was still in Putnam County when she first asked Boxer X to let her and her son leave the car — was not enough. We reject this argument for two reasons. First, two questions after the testimony noted above, the victim testified positively that she was still in Putnam County when the defendant refused to get out of her car. Second, venue for the prosecution of kidnapping lies in the county where the victim was seized. Potts v. State, 261 Ga. 716, 720 (2) (410 SE2d 89) (1991); Cornelius v. State, 213 Ga. App. 766 (445 SE2d 800) (1994). Since an abduction by inducement, persuasion, or fraud can also support a finding of asportation, and the victim testified that her house, where Boxer X induced her to give him a ride, is in Putnam County, the evidence is sufficient for the jury to have found that the State proved beyond a reasonable doubt that the kidnapping occurred in Putnam County. Harshaw v. State, 222 Ga. App. 385, 386 (1) (474 SE2d 226) (1996).

10. Boxer X enumerates as error the trial court’s refusal to charge battery, simple assault, and aggravated assault as lesser included offenses of kidnapping. OCGA § 16-5-40 (a) provides that “[a] person commits the offense of kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such person against his will.” Those elements do not include the elements required to prove aggravated assault, OCGA § 16-5-21, simple assault, OCGA § 16-5-20, or battery, OCGA § 16-5-23. This Court has held, for example, that the element of apprehension of bodily injury required for an aggravated assault conviction is not required to prove kidnapping with bodily injury. Brown v. State, 232 Ga. App. 787, 790-791 (2) (504 SE2d 452) (1998). Simple assault also requires the apprehension of bodily injury and is therefore also not a lesser included offense of kidnapping. And battery requires the element of intentionally making physical contact of an insulting or provoking nature with the person of another or intentionally causing physical harm to another, elements not required to prove kidnapping. Therefore, the trial court properly declined to give Boxer X’s requested charges on these crimes as lesser included offenses of kidnapping.

Decided April 7,1999.

Green B. Moore III, for appellant.

Fredric D. Bright, District Attorney, Richard M. Gailey, Jr., Assistant District Attorney, for appellee.

11. Finally, defense counsel failed to timely object to those portions of the prosecution’s closing argument that he contends improperly placed defendant’s character into evidence. This failure waives Boxer X’s right to raise the issue on appeal. McCord v. State, 268 Ga. 842, 844 (5) (493 SE2d 129) (1997).

Judgments affirmed.

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

       Boxer X preserved this issue for appeal by reserving his objections at the conclusion of the trial court’s charge.

       Asportation — a carrying away. Webster’s New Intl. Dictionary (2nd ed.), Unabridged.

       Boxer X challenged venue in a motion for directed verdict; therefore, the State was required to show more than “slight evidence” of venue and prove that element of the crime beyond a reasonable doubt. Joiner v. State, 231 Ga. App. 61 (497 SE2d 642) (1998).


author: Johnson, Chief Judge.

text:
    A99A0485.
    In the Interest of J. C., a child.
    (515 SE2d 847)
   Johnson, Chief Judge.

The biological father of J. C. appeals from a juvenile court order terminating his parental rights. He complains that the juvenile court’s determination that the deprivation is likely to continue and is not likely to be remedied is not supported by clear and convincing evidence, particularly given the progress he has made. We affirm the decision of the juvenile court.

The decision to terminate parental rights involves a two-part process. First, the juvenile court must determine whether there is clear and convincing evidence of parental misconduct or inability. This determination is based on a finding that the child is deprived, the lack of proper parental care or control by the parent is the cause of the child being deprived, the cause of deprivation is likely to continue or will not likely be remedied, and the continued deprivation will cause or is likely to cause serious harm to the child. In the Interest of K. W., 233 Ga. App. 140, 141 (2) (503 SE2d 394) (1998). Second, if the juvenile court finds clear and convincing evidence of parental misconduct or inability, the court considers whether termination of parental rights is in the best interest of the child. Id. On appeal, we determine whether, viewing the evidence in a light most favorable to the lower court’s judgment, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost. In the Interest of R. N., 224 Ga. App. 202 (480 SE2d 243) (1997).

The record shows that when the child was born in April 1996, she and her mother tested positive for cocaine. Two days later, the Laurens County Department of Family & Children Services (“DFACS”) was granted temporary custody of J. C. The court entered an order finding the child deprived, and the child was placed in foster care.

DFACS developed a reunification plan which required J. C.’s parents to become and remain alcohol- and drug-free, establish and maintain a safe home environment for the child, attend and complete a parenting skills course, maintain contact with the child through biweekly visits, maintain contact with DFACS, and pay child support.

In November 1997, after conducting regular case reviews and upon the recommendation of a review panel, DFACS filed a petition to terminate the parents’ rights to J. C. As grounds for termination, the petition cited the parents’ failure to visit the child since April 1997, their eviction in June 1997, their separation, the failure of either parent to have an established home, their failure to maintain contact with the agency, and their absence from the last panel review meeting in August 1997.

A hearing was held in March 1998. During the hearing, a caseworker testified that the parents did not maintain regular contact with DFACS and contacted DFACS only once during the year preceding the hearing. Although visitation was scheduled to occur every two weeks, and DFACS provided transportation to and from the visits, the father visited J. C. only six or seven times during the nearly two years the child was in DFACS’ care. The visits lasted an hour each; the parents never asked for longer visits and sometimes ended the visits early. The caseworker present during the visits observed that the child was uncomfortable with and did not seem to know or bond with the parents. Once when the caseworker came to pick up the parents for visitation, she learned that the parents had been evicted. Neither parent had notified DFACS that they had moved. There was no response to several letters sent to the parents.

The father testified that he separated from J. C.’s mother in the summer of 1997 and moved into a boarding house. He stayed there four or five months then moved into his mother’s home, where he was living at the time of the hearing. He said the child could not stay with him at his mother’s house and that he would need to get a place of his own before he could take custody of J. C. He admitted that although he currently was working, he could not afford to make child support payments and pay rent. The father did pay child support through garnishment of his paycheck from August 1997 until the hearing date.

The father admitted that he is an alcoholic and has been hospitalized for alcoholism and for depression. The father remarked that he was cited for “DUI” within the past year. He said that he visited the child only once in the past year. When asked why he visited her so infrequently, he replied that he did not have transportation and could not afford to visit her.

A court-appointed child advocate testified that he interviewed the father before the hearing and the father related to him that he was upset about having to pay child support. When the advocate asked the father if he would take the child back at that time, the father replied that he was living in a boarding house and did not have money to support the child.

The court terminated the father’s rights based on its findings that the child was born with cocaine in her system; the parents do not have the means to support her; the child has never lived with either parent during her two years of life; the parents were never married and are separated; the father does not have a suitable home for the child; the father has not visited the child regularly; the father has a history of alcoholism and depression; the father has not complied with case plan requirements to remain alcohol-free, provide a safe home, visit the child regularly, and maintain contact with DFACS; the father has not legitimated the child; and the child is well adjusted and happy in her foster home.

1. The father does not dispute that J. C. is a deprived child or that the deprivation is a result of the lack of proper parental care. See OCGA § 15-11-81 (b) (4) (A) (i), (ii). Thus, our focus is on whether the deprivation is likely to continue. See OCGA § 15-11-81 (b) (4) (A) (iii).

In determining whether conditions of deprivation are likely to continue, the court may consider the past conduct of the parent. In the Interest of R. D. S. R, 230 Ga. App. 205, 207 (495 SE2d 867) (1998). Here, there was evidence of both past and present unfitness.

The father’s failure to visit the child regularly, to stay in contact with DFACS, and to secure a safe home environment for the child in the two years she spent in the custody of DFACS supports a finding that the deprivation would likely continue. This is particularly true since the father was not, at the time of the hearing, ready or able to provide for J. C.’s basic needs. See In the Interest of R. L. M., 221 Ga. App. 343, 344 (1) (471 SE2d 245) (1996). The evidence provides clear and convincing proof that if J. C. was returned to her father’s custody, the deprivation was likely to continue.

The father claims that he has made some progress and that his progress is evidence “justifying a belief that he can rehabilitate himself.” He points out that he completed parenting classes, attended some of the case reviews, paid child support, and has not been significantly involved in drug and alcohol use. These efforts, while commendable, are insufficient to invalidate the juvenile court’s finding of clear and convincing evidence demonstrating that the deprivation was likely to continue. See generally In the Interest of K. H., 229 Ga. App. 307, 310 (2) (494 SE2d 69) (1997); In the Interest of H. G, 195 Ga. App. 642, 643 (394 SE2d 557) (1990). It is the juvenile court, not the appellate court, which must determine whether a parent’s conduct warrants hope of rehabilitation. In the Interest of A. M. N., 234 Ga. App. 365, 370 (1) (506 SE2d 693) (1998). A plea for more time to improve is without force to overcome the proof of unrelieved detriment already suffered by the child for her entire life. In the Interest of N. C., 228 Ga. App. 875, 877 (492 SE2d 895) (1997). “The decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.” (Citation and punctuation omitted.) In the Interest of S. J. C., 234 Ga. App. 491, 494 (1) (507 SE2d 226) (1998).

2. We note that the record also supports a finding that termination of the father’s parental rights would be in J. C.’s best interest. J. C. has been with the same foster parents since she was two days old, is doing very well, and is happy and “carefree.” When visiting the father, the child seems unhappy, uncomfortable, is squeamish, and whines a lot. She apparently has not bonded with her biological parents. In considering the best interest of the child, the juvenile court may consider her need for stability and the harmful effects of prolonged foster care. See In the Interest of D. A. P., 234 Ga. App. 257, 260 (2) (506 SE2d 438) (1998). The juvenile court was authorized to conclude that deprivation was not likely to be remedied and that it was in the child’s best interest that the father’s rights be terminated. Id.

Decided April 7,1999.

Carlton K. Nelson III, for appellant.

Thurbert E. Baker, Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Thompson, Thompson & Hilbun, Samuel A. Hilbun, William L. Tribble, for appellee.

Judgment affirmed.

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

       DFACS also cited grounds for terminating the mother’s rights which did not directly involve the father’s fitness. Because only the father appeals, we will not discuss in detail the evidence pertaining only to termination of the mother’s rights.

       The juvenile court also made findings specifically concerning the mother’s unfitness. As noted above, these will not be discussed in the father’s appeal.