text:
    A02A0101.
    KING v. THE STATE.
    (564 SE2d 815)
   Miller, Judge.

A jury found Willie King guilty of aggravated battery for rendering both, of the victim’s legs useless by slamming her on the floor. On appeal King urges the general grounds. We affirm.

On appeal we view the evidence in the light most favorable to support the jury’s verdict and determine whether the evidence is sufficient to authorize a rational trier of fact to find Kang guilty of the crime charged beyond a reasonable doubt. Ahmadi v. State, 251 Ga. App. 189 (554 SE2d 215) (2001); see Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Viewed in this light, the evidence showed King, upset that the victim had earlier called police, picked the victim up over his shoulder and threw her on her neck, causing paralysis in the victim’s legs.

“A person commits the offense of aggravated battery when he or she maliciously causes bodily harm to another by depriving him or her of a member of his or her body, by rendering a member of his or her body useless, or by seriously disfiguring his or her body or a member thereof.” OCGA § 16-5-24 (a). Although King testified the victim’s injury occurred when she tripped over a cord and fell while trying to run from him, “[i]t is the function of the jury to determine the credibility of witnesses and to weigh and resolve any conflicts in the testimony.” Blackman v. State, 178 Ga. App. 88, 89 (1) (342 SE2d 24) (1986). As long as there is some competent evidence, even if contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld. Daniels v. State, 249 Ga. App. 593 (548 SE2d 108) (2001).

The victim’s testimony that King caused her bodily harm by slamming her on the floor and rendering her legs useless was sufficient to sustain King’s conviction. See White v. State, 210 Ga. App. 563, 564 (436 SE2d 584) (1993); Blackman, supra, 178 Ga. App. at 89 (1).

Judgment affirmed.

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

Decided April 30, 2002.

David E. Morgan III, for appellant.

Denise D. Fachini, District Attorney, Cheri L. Nichols, Assistant District Attorney, for appellee.


source: Caselaw Access Project

author: Blackburn, Chief Judge.

license: Public Domain

text:
    A02A0122.
    In the Interest of W. B., a child.
    (564 SE2d 816)
   Blackburn, Chief Judge.

Following a full hearing in the juvenile court, W. B. appeals his adjudication of delinquency for simple battery, arguing that the evidence was insufficient to support the adjudication. We affirm.

In considering a challenge to the sufficiency of the evidence supporting an adjudication of delinquency, we construe the evidence and every inference from the evidence in favor of the juvenile court’s adjudication to determine if a reasonable finder of fact could have found, beyond a reasonable doubt, that the juveniles committed the acts charged.

In the Interest of S. P. See also Jackson v. Virginia. An appellate court does not determine the weight of the evidence or determine the credibility of witnesses, but only determines whether the evidence is sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt. In the Interest of G. J.

A person commits simple battery when he or she either intentionally makes physical contact of an insulting or provoking nature with another person or intentionally causes physical harm to another. OCGA § 16-5-23 (a). The evidence, in this case, viewed with every inference in favor of the adjudication of delinquency, clearly establishes that the elements of simple battery were satisfied.

Viewed in this light, the record shows that the Waterford Home Owners’ Association asked its security guard, Mike Bailey, to speak with a large group of males refusing to get out of the roadway at the entrance to the subdivision. Bailey drove the security cart up to a group of males in the roadway. Jamal Driver, a juvenile and one of the males, was cursing Bailey and refused to speak with him when Bailey told him that he wanted to take him home to speak with his parents. Driver walked, but Bailey followed. Bailey placed Driver in the cart. W. B., whom Bailey knew because his mother had lived in the subdivision, then came up the street in a “very aggressive manner” and refused the commands of Bailey to stay away. Bailey grabbed W. B. for his safety and to hold or place him on the ground. Driver jumped on Bailey’s back, and W. B. began striking him. Bailey suffered a deep abrasion to his knee. Bailey and Driver as well as several other witnesses for the defense testified at the trial.

Decided April 30, 2002.

Sullivan & Sturdivant, Harold A. Sturdivant, Michele W. Ogle-tree, for appellant.

William T. McBroom III, District Attorney, James E. Sherrill, Assistant District Attorney, for appellee.

In this case, the evidence was sufficient for the juvenile court, as finder of fact, to find the essential elements of the crime beyond a reasonable doubt.

Judgment affirmed.

Johnson, P. J., and Miller, J., concur.

        In the Interest of S. R, 240 Ga. App. 827 (525 SE2d 403) (1999).

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

        In the Interest of G. J., 251 Ga. App. 299, 301 (554 SE2d 269) (2001).


author: Miller, Judge.

text:
    A02A0152.
    WECH v. THE STATE.
    Decided April 30, 2002.
    (564 SE2d 814)
   Miller, Judge.

Acting pro se, Russell Wech, also known as Larry Rainey, appeals from the trial court’s denial of his “Petition for Writ of Error Coram Nobis,” in which he claimed that his guilty plea was invalid.

Wech, however, pled guilty in 1994, and it is well settled that “after the expiration of the term of court in which a guilty plea is entered and of the time for filing an appeal from the conviction, the only remedy available to a defendant for withdrawing his guilty plea is through habeas corpus proceedings.” (Citation omitted.) Farist v. State, 249 Ga. App. 320, 321 (1) (547 SE2d 619) (2001). Thus, the trial court correctly concluded that it had no authority to grant any motion requesting that Wech be allowed to withdraw his guilty plea, since the motion was filed some seven years after the expiration of the term of court in which the judgment of conviction on the plea was entered. See Rooks v. State, 245 Ga. App. 655, 656 (1) (538 SE2d 555) (2000); State v. Johnson, 222 Ga. App. 156 (473 SE2d 593) (1996).

Judgment affirmed.

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

Russell Wech, pro se.

Keith C. Martin, Solicitor-General, Evelyn Proctor, Assistant Solicitor-General, for appellee.


author: Smith, Presiding Judge.

text:
    A02A0229.
    PIERCE v. THE STATE.
    (564 SE2d 790)
   Smith, Presiding Judge.

Michael James Pierce was indicted for the aggravated battery of Nick Wilkerson and the murder of Eletha Diane Sherrod. A jury convicted Pierce of aggravated battery and involuntary manslaughter. Following the denial of his motion for new trial, Pierce filed this appeal in which he contends that the trial court erred in two eviden-tiary rulings and in restricting the scope of its recharge to the jury. Because we find no merit in these contentions, we affirm.

On appeal, the evidence must be viewed in a light most favorable to the verdict, and Pierce no longer enjoys the presumption of innocence. Pollard v. State, 230 Ga. App. 159 (495 SE2d 629) (1998). The evidence, when viewed in that manner, established that just hours before the crimes, Pierce had threatened to kill Melody Smith, his former girlfriend, and anyone she dated. In separate conversations, Pierce warned Smith and her mother and also told an acquaintance that if he caught Smith with another man he would kill them both. At the time of the threats, Smith was living at home with her child, her mother, three sisters, a niece, and her brother.

On the night of the shootings, Pierce discovered Smith in the company of Wilkerson standing next to Wilkerson’s car. From a wooded area outside Smith’s home, Pierce fired several shots from a semi-automatic pistol at them. He then opened fire with a shotgun, seriously wounding Wilkerson who was pinned inside his car by gunfire. As Wilkerson tried desperately to shift his car into reverse, Pierce continued to shoot at him. Running low to the ground, Smith crouched down next to the car using it for cover.

One of Smith’s sisters, Sherrod, heard the gunshots from inside the house and ran out onto the screened porch. Pierce fired his shotgun at the porch, killing Sherrod. Sherrod died at the scene from gunshot wounds to her head. Although no one was able to see the shooter, who fled into the darkness and the woods, Pierce immediately was the prime suspect. Shortly before the shootings, Sherrod had told her mother that she saw Pierce’s car pass by their house and Roberta Smith confirmed that information. Just after the shootings, a neighbor spotted Pierce’s distinctive purple Mustang traveling fast in the opposite direction about a half-mile from the area.

While a manhunt was under way, Pierce voluntarily turned himself in the next day to Sheriff Bobby Womack from nearby Jenkins County. Womack testified that while he was sitting in his office Pierce entered the room upset and crying, saying he “did not mean to kill her.” Womack recalled that Pierce walked across the room and then “fell on the desk with tears and all in his eyes, and [said], T did not mean to shoot her, I did not mean to kill her.’ ” Pierce collapsed between the sheriff’s desk and a wall, and the sheriff helped lift Pierce back up. As Pierce continued talking, Womack interrupted him saying, “No, I’d rather not hear it.” Womack did not question Pierce and summoned his deputy to inform Pierce of his Miranda rights. Pierce said nothing further.

Pierce was transported back to Emanuel County, where he agreed to give a statement. Although the custodial interview was audiotaped, a several-minute segment in that audiotape is garbled and indecipherable, apparently due to a malfunctioning tape recorder. In his statement, Pierce said he had parked his car near his former girlfriend’s house and then remained in the woods, armed, waiting, and watching. When Pierce saw her talking to another man, he came out of the woods and started shooting his .380 pistol. After emptying his pistol, Pierce grabbed his shotgun and fired it at the vehicle. Pierce recalled that he then fired his shotgun twice into the porch. After conducting a Jackson-Denno hearing and after listening to Pierce’s taped statement, the trial court determined that Pierce’s incriminating comments were uttered spontaneously to the sheriff and that Pierce’s custodial statement was also admissible.

1. Pierce contends that the trial court erred in allowing in evidence an audiotape that was partially inaudible.

When a recording is inaudible, its admissibility is subject to question; but when material portions are inaudible, then the recording should be rejected when it is the only evidence offered as to the statement. See Kelley v. State, 168 Ga. App. 911, 913 (311 SE2d 180) (1983). Here, Chief Investigator Ashley Riner, who conducted the custodial interview, testified at considerable length about the contents of the statement and was extensively cross-examined about it. Moreover, the victim’s testimony as well as the physical evidence accumulated at the crime scene, including shell casings, the two weapons, and tire tracks, provided independent corroboration of the key details provided by Pierce in his statement. Plainly, the audiotape did not constitute the only evidence of Pierce’s statement. Nor does Pierce claim that the garbled or inaudible portion contained anything favorable to him. Green v. State, 250 Ga. 610, 611 (1) (c) (299 SE2d 544) (1983). The State offered a proper foundation for the tape’s admission, and Pierce has not shown that the trial court abused its discretion in admitting the tape in evidence. Guess v. State, 264 Ga. 335, 336 (2) (443 SE2d 477) (1994).

2. Pierce contends that the trial court erred in admitting the statements he made to the sheriff while he was in custody but before he was afforded proper Miranda warnings. At trial, Pierce testified that while he was in custody in a holding cell, the sheriff came and unlocked the cell door. Pierce testified that after the sheriff said, “[w]e have bodies,” and “gut up and be a man about it,” he blurted out that he did not mean to kill anyone.

Miranda warnings are not required unless and until police commence questioning of a suspect in custody. Jenkins v. State, 219 Ga. App. 339, 341 (1) (465 SE2d 296) (1995). Voluntary, spontaneous outbursts that are not made in response to any form of custodial questioning or interrogation are admissible at trial. Smith v. State, 264 Ga. 857, 859 (452 SE2d 494) (1995). Although Pierce seems to argue that the sheriff prompted him or goaded him into incriminating himself, the sheriff testified otherwise. “There is no burden on State officials to prevent [a] defendant from talking about the incident if he wishes to do so. Simply stated they must not interrogate but they need not refuse to listen.” Zubiadul v. State, 193 Ga. App. 235, 238 (387 SE2d 431) (1989). In these circumstances, we cannot say that the trial court erred in finding that the outbursts were voluntary and spontaneous.

3. Pierce asserts that the trial court erred by failing to include an instruction on reckless conduct as part of the court’s recharge. He contends that the trial court’s recharge overemphasized the law favorable to the State and deprived him of his “primary defense” of reckless conduct.

During deliberations, the trial court learned that the jury wanted clarification of the meaning of intent and transferred intent. At that point, the trial court recharged the jury on the principles of transferred intent, intent, criminal intent, the inference to be drawn from the use of a weapon, and the inference that may be drawn from the acts of a person of sound mind and discretion. The trial court cautioned the jury to consider the charge as a whole and not to focus in isolation on the recharge. Defense counsel excepted to the recharge on the basis that the jury’s concern about the issue of reckless conduct could be inferred from its question about “just shooting at a noise.” The trial court noted the exception but refused to give further instructions.

When, as here, a jury has been fully instructed on the applicable law but subsequently seeks clarification on a particular point, the trial court may exercise its discretion in recharging the jury in full or confining its recharge to the jury’s inquiry. Heflin v. State, 204 Ga. App. 161, 163 (418 SE2d 770) (1992). As a general rule, in doing so, the trial court is not obligated to repeat all the law favorable to the defendant. Id. In this case, the jury through its foreperson posed several questions that implicated the legal meaning of intent and transferred intent.

Decided April 30, 2002.

Lovett Bennett, Jr., for appellant.

Steven Askew, District Attorney, Charles D. Howard, Assistant District Attorney, for appellee.

Under the doctrine of transferred intent, when an unintended victim is hurt as the result of an unlawful act actually directed against someone else, the law prevents the perpetrator from taking advantage of his own wrong and so transfers the original intent from the one against whom it was directed to the one who actually suffered from it. Happoldt v. State, 267 Ga. 126, 127 (1) (b) (475 SE2d 627) (1996). The recharge at issue was a correct statement of the applicable legal concepts,- and the trial court reminded the jury not to place undue emphasis on that portion of its instruction.

Although Pierce now argues that he sought further instruction on reckless conduct to enable the jury to consider finding him guilty of involuntary manslaughter, he was, in fact, convicted of that offense instead of murder. Because Pierce cannot show harm, his argument lacks merit. Finally, having examined the charge as a whole, we find that it substantially presented all of the requested issues in a manner not likely to confuse the jury. See Pace v. State, 239 Ga. App. 506, 508 (2) (521 SE2d 444) (1999). No abuse of discretion has been shown. Heflin, supra at 163.

Judgment affirmed.

Eldridge and Ellington, JJ., concur.


text:
    A02A0400.
    BROWN et al. v. EGLESTON CHILDREN’S HOSPITAL et al.
    (564 SE2d 810)
   Blackburn, Chief Judge.

In this medical malpractice action, Neata and Reginald Brown appeal the denial of their motion for new trial, contending that the trial court erred by rejecting their challenge to the jury composition pursuant to Batson v. Kentucky. For the reasons set forth below, we affirm.

The record shows that the Browns, who are African-Americans, brought this action against Egleston Children’s Hospital and two Caucasian physicians for negligent treatment of their son. The jury panel comprised thirteen African-Americans, ten Caucasians, and one prospective juror who was neither African-American nor Caucasian. During jury selection, each side used all of their respective peremptory strikes to remove prospective jurors whose race was different from that of their clients. The final composition of the jury was seven African-Americans and five Caucasians. Following the jury selection, the Browns challenged defense counsel’s peremptory strikes, arguing that they were made solely on the basis of race.

In Edmonson v. Leesville Concrete Co., the U. S. Supreme Court extended the decision in Batson to civil cases. Parties are forbidden by these cases from striking prospective jurors solely on the basis of race. In a Batson challenge, “[t]he trial court’s factual findings must be given great deference and may be disregarded only if clearly erroneous.” (Punctuation omitted.) Holt v. Scott.

Batson challenges are analyzed by a three-prong test: (1) the opponent to the peremptory challenge must establish a prima facie case of purposeful discrimination by demonstrating that the totality of the relevant facts gives rise to an inference of discriminatory purpose; (2) the proponent of the challenge is then required to articulate a concrete, tangible, race-neutral rationale for the strike; and (3) the opponent must carry the burden of showing that the rationale is merely a coverup to purposeful racial discrimination. Purkett v. Elem; McKenzie v. State.

1. During the Batson motion, the trial court did not specifically rule that the Browns had made out a prima facie case, but by its actions it acknowledged a prima facie case had been made. The trial court recognized the Browns’ assertion that all of defense counsel’s peremptory strikes were used to challenge African-Americans and asked the defendant to respond to the Browns’ claims of discrimination as to Jurors 1, 2, 5, 7, and 19.

Defense counsel provided the following rationales for these challenges. Juror 1: She was totally unresponsive. She has no children or experience with children. This prospective juror showed a lack of life experiences in response to all questioning. Also she was a postal worker. Juror 2: She had a terrible experience at a hospital emergency room relating to her child “under very and apparently grueling circumstances, some eight hours of what she considered to be either improper or at least politically incorrect questioning from a physician.” Juror 5:

I took Number Five basically because of her absence of responses. And, number two, my personal predilection that . . . anybody that works for the federal government or the United States Postal Service is not the kind of person I want on the jury. And it’s a government-like position. They expect lots of perks and benefits. I just simply don’t like, in considering damage awards if they reach that far, to have such a worker on this jury.

Juror 7: She was a plaintiff in a lawsuit, and even though she won, she had a bad experience. Juror 19: She had a bad experience with a doctor. She had claims of whether that doctor was competent.

The court provided the Browns’ counsel an opportunity to respond to defense counsel’s reasons for the strikes. Counsel provided these specific responses for Jurors 1 and 19. Juror 1: The prospective juror was not specifically asked if she had children or where she worked. Employment alone is not a sufficient race-neutral ground. There were other nonAfrican-Americans who had no children that were not stricken. The prospective juror’s only individual verbal response was she took a child to the emergency room. Juror 19: Defense counsel was mistaken. She did not verbally respond to a question concerning a bad experience. The prospective juror did respond by raising her hand to a general question of the panel from defense counsel about whether the juror or someone close to them had a bad experience with a doctor or hospital.

Defense counsel made no further response to the Browns’ assertions, choosing to rely on his earlier stated reasons. After hearing the argument, the court made an explicit finding on the record that “the reasons stated for the strikes, some more obvious than others, some more compelling than others, each appears to have a race neutral underpinning.”

After review, we do not agree that the Browns’ arguments were sufficiently persuasive to find that the trial court was clearly erroneous in its determination that the strikes were not pretextual. “The trial court’s decision rests largely upon assessment of the attorney’s state of mind and credibility; it therefore lies peculiarly within a trial judge’s province. The trial court’s factual findings must be given great deference and may be disregarded only if clearly erroneous.” (Punctuation omitted.) Norfolk Southern R. Co. v. Perkins.

As to the Browns’ assertions related to Jurors 1 and 5: First, the Browns claim that defense counsel could not gauge responsiveness since he asked either few or no questions of these jurors. However, the record shows that these two jurors were asked a number of questions either generally or individually upon which defense counsel could base his observation. In Trice v. State Thompson v. State, and Evans v. State, a lack of responsiveness was upheld as a race-neutral challenge. Additionally, unresponsiveness was only one of defense counsel’s multiple reasons given for his strike. Perkins, supra at 554 (1) (b).

The second claim by the Browns was that employment is not a racially neutral reason for the strike. Government and postal office employment has previously been determined to be a racially neutral rationale. Gilbert v. State (postal worker); Johnson v. State (same); Hinson v. State (government employee).

Lastly, the fact that prospective Juror 1 had no children is racially neutral. Herrin v. State. Although the Browns point out that Juror 1 was not asked a specific question about children, the record shows that both parties prior to trial had received copies of the juror questionnaires that included basic information including marital status, number of children, and employer of each juror. Questionnaires are generally used to provide a more efficient and speedy voir dire process. We find no reason why the defense counsel cannot rely on information from the questionnaire. In Lingo v. State, the prosecutor used a prospective juror’s response to a questionnaire which indicated a “bad check problem” among several reasons for the challenge.

Jurors 2 and 19: We see no error in the trial court’s decision that “bad treatment by a hospital or doctor” is a racially neutral reason for striking Jurors 2 and 19 under the facts of this case in which the cause of action concerns negligence in treatment of a child by a hospital and doctors.

The Browns contend that the trial court erred in accepting defense counsel’s stated reasons for a challenge to Juror 19 since the information was erroneous. Defense counsel’s reasons for striking Juror 19 were that she responded affirmatively that she or a close family member had a bad experience with a hospital or doctor. Furthermore, defense counsel stated that she had “claims of whether her doctor was in fact competent.” The voir dire record does not show that there was such an answer. Despite this mistake or embellishment by defense counsel, a peremptory strike, even if it is based upon mistake or ignorance, may still rebut a prima facie showing as long as it is neutral, case-related, and reasonably specific. McKibbons v. State.

Juror 7: The Browns’ challenge to striking this juror fails since the court could determine that being a plaintiff in a lawsuit was a racially neutral rationale. See Stephens v. Ivey, in which being a plaintiff was one of the reasons a juror was struck.

2. The Browns argue that the trial court implied that no harm would have resulted even if the jury challenges were allowed in error because the final jury panel had seven African-Americans. Although the trial court did note for the record that each side struck only members of the opposite race and that the ultimate panel was balanced as to race and gender, it is clear that the trial court did not rely on these panel statistics in its decision. The trial court merely made the statement a part of the record as a convenience to this Court.

3. The Browns contend that there were white prospective jurors similarly situated as the jurors struck (Jurors 1 and 19), who were not challenged, and, therefore, the defense counsel’s reasons were merely pretextual. In Lingo, supra at 668 (1) (c), our Supreme Court held that where a reason given for striking a black juror is not also used against a white juror, that reason is particularly suspect. The Browns pointed out that besides Juror 1, there were other prospective jurors that indicated they had no children on the questionnaire, and there were other jurors either employed by some type of government agency or with someone in their families so employed. All of the Browns’ claims of similarly situated jurors were, in fact, addressed by defense counsel. Defense counsel stated that as to Juror 1, who was struck because she was unresponsive, had no children, and was a postal worker, there were multiple reasons to keep the similar white juror since that juror fit in with the defense’s strategy to include persons with children and loyalty to Egleston. The white juror had three children, had lived in DeKalb County many years, and had taken a child to Egleston Hospital. There is no Batson violation where multiple racially neutral reasons are given for the defense counsel’s peremptory strike and one or more are not used by the defense to strike prospective jurors of another race. Holt, supra at 816 (3). Under these circumstances, we cannot say that the trial court clearly erred in finding the defendants’ explanations satisfactorily race-neutral.

Decided April 30, 2002.

Divida Gude, for appellants.

Love, Willingham, Peters, Gilleland & Monyak, Daryll Love, Vicki M. Miller, for appellees.

The Browns asserted that like Juror 19, there were two other white persons seated on the jury who indicated they or someone close to them had a bad experience with a doctor or hospital. Defense counsel answered that one of the persons relied upon by the Browns in their analysis was, in fact, a black male, not a white, and provided rationales for why each of the white prospective jurors was chosen instead of the challenged jurors.

For these reasons, we find that the trial court did not err in holding that the Browns failed to meet their burden of proof to show that there was purposeful discrimination as required under the third step of the procedure set forth in Batson and, further, failed to show that on appeal the trial court’s determination was clearly erroneous. McKenzie, supra at 778 (1).

Judgment affirmed.

Johnson, P. J., and Miller, J., concur.

        Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986).

        Edmonson v. Leesville Concrete Co., 500 U. S. 614 (111 SC 2077, 114 LE2d 660) (1991).

        Holt v. Scott, 226 Ga. App. 812, 816 (3) (487 SE2d 657) (1997).

        Purkett v. Elem, 514 U. S. 765, 767 (115 SC 1769, 131 LE2d 834) (1995).

        McKenzie v. State, 227 Ga. App. 778 (1) (490 SE2d 522) (1997).

         Norfolk Southern R. Co. v. Perkins, 224 Ga. App. 552 (1) (481 SE2d 545) (1997).

        Trice v. State, 266 Ga. 102, 103 (2) (464 SE2d 205) (1995).

        Thompson v. State, 194 Ga. App. 163 (2) (390 SE2d 253) (1990).

        Evans v. State, 183 Ga. App. 436, 439 (3) (359 SE2d 174) (1987).

        Gilbert v. State, 226 Ga. App. 230, 231 (486 SE2d 48) (1997).

        Johnson v. State, 266 Ga. 775, 776 (4) (470 SE2d 637) (1996).

        Hinson v. State, 237 Ga. App. 366, 371 (3) (d) (515 SE2d 203) (1999).

        Herrin v. State, 221 Ga. App. 356, 358 (471 SE2d 297) (1996).

        Lingo v. State, 263 Ga. 664, 667 (1) (b) (10) (437 SE2d 463) (1993).

        McKibbons v. State, 216 Ga. App. 389, 390 (1) (455 SE2d 293) (1995).

        Stephens v. Ivey, 212 Ga. App. 407, 409 (3) (442 SE2d 248) (1994).


author: Ruffin, Judge.

text:
    A02A0454.
    HOPKINS v. THE STATE.
    (564 SE2d 805)
   Ruffin, Judge.

A jury found Henry Hopkins guilty of one count each of aggravated battery and open container and two counts each of second degree cruelty to children and driving under the influence of alcohol. Hopkins appeals, challenging the sufficiency of the evidence of aggravated battery, the court’s charge to the jury, its denial of his general demurrer to the indictment, and his sentence. For reasons that follow, we affirm in part and reverse in part.

1. Viewed in a light most favorable to the jury’s verdict, the evidence at trial showed that the victim was 69-year-old Louise Franklin. Franklin was a friend of Hopkins’ wife, Jackie. On the day of the incident, Jackie brought her two children to Franklin’s home to play with Franklin’s five-year-old grandchild and five-year-old great-grandchild. While the children played, Jackie and Franklin sat and talked.

Later that afternoon, Hopkins joined Jackie at Franklin’s house. At some point, Hopkins and Jackie got into an argument, and Franklin told Hopkins to leave. After cursing at Franklin, Hopkins left, and Jackie and her two grandchildren departed shortly thereafter.

Hopkins, however, returned to Franklin’s house. As Franklin and her grandchildren were standing behind a locked screen door, Hopkins approached them, yelling and cursing. Franklin told Hopkins to leave, but he ignored her, and when he reached the screen door, he ripped it open and grabbed Franklin by her wrists. As the grandchildren looked on pleading for him to “leave [their] granny alone,” Hopkins pulled Franklin outside and knocked her to the ground. Hopkins left, and Franklin’s grandchildren called 911. Police arrested Hopkins later that evening after stopping him in his van, finding an open alcoholic beverage in the van, and concluding that he was under the influence of alcohol.

There is little detailed evidence of the injuries Franklin sustained as a result of Hopkins’ attack. Franklin testified as follows:

My arm was broken. . . . [Hopkins] had pulled on this one so hard, it jerked it out of place, and they had to set it back, and these two here, as you can see, they [are] still messed up. . . . They were broken. . . . [At the hospital, the doctor] set my arm back. . . . They put what you call a pin right here [inside the arm]. . . . [My arms] will never be the same.

Franklin further stated that the pin remained in her arm at the time of trial and that, due to the injuries, she “couldn’t work[,] . . . couldn’t do anything.”

Under Georgia law, a person commits aggravated battery by maliciously harming the victim in one of three ways: (1) “by depriving him or her of a member of his or her body, [(2)] by rendering a member of his or her body useless, or [(3)] by seriously disfiguring his or her body or a member thereof.” In this case, the indictment charged that Hopkins committed aggravated battery on Franklin in the third way: “by seriously disfiguring her body, by breaking her left arm, [and] pushing her from a porch and onto a vehicle.” On appeal, Hopkins argues that there was insufficient evidence establishing that the battery seriously disfigured Franklin’s body. We disagree.

The term “disfigurement” has been defined as “that which impairs or injures the appearance of a person.” The term “serious” has been defined as “grave, or great.” A serious disfigurement under the aggravated battery statute “require [s] an injury more severe than the visible wounds used to illustrate the ‘visible bodily harm’ required to support a battery conviction.” However, “[t]he disfigurement need not be permanent, but may be only temporary.” Furthermore, “[b]ecause the circumstances of each aggravated battery vary, whether disfigurement is serious is best resolved by the factfinder on a case-hy-case basis.”

In this case, we are presented on appeal with a cold, sterile record that reveals little of the injuries Franklin showed to the jurors from the witness stand as she testified about her arms. But the testimony accompanying Franklin’s display, viewed favorably to the verdict, permitted an inference that, at least temporarily, there was something gravely wrong with the appearance of one of her arms. Franklin spoke of an arm that was not only broken, but also jerked out of place. Based on this testimony and what they saw, the jurors could have found that the arm was seriously disfigured before it was set back in place and the pin was inserted. Accordingly, we conclude that the evidence, when viewed in the light most favorable to the verdict, was sufficient to authorize a rational trier of fact to conclude beyond a reasonable doubt that Hopkins was guilty of aggravated battery.

2. We agree with Hopkins, however, that he is entitled to a new trial because the court erred in charging the jury on aggravated battery. The record shows that at the beginning of its instructions, the court read the indictment, which specified that Hopkins was charged under Count 1 with aggravated battery by seriously disfiguring Franklin’s body. After reading the indictment, the court instructed the jurors that they would have the indictment to review during deliberations and that they must decide “whether the defendant is guilty or innocent of the charges contained in the indictment.” However, later in the instructions, while the court was explaining the law concerning the specific charges against Hopkins, it stated:

Now, in regard to count one of aggravated battery, I charge you as follows: [a] person commits the offense of aggravated battery when he or she maliciously causes bodily harm to another by depriving him or her of a member of his or her body[,] by rendering a member of his or her body useless or by seriously disfiguring his or her body or a member thereof. .. . [Hopkins] is charged with the offense of aggravated battery, as I have just previously defined for you, and in that regard I charge you that the State is not required to prove that a member of the victim’s body was rendered either completely useless or permanently useless. It is sufficient if there is at least a temporary diminished use of a member of the victim’s body.

These instructions constitute reversible error. Due process requires that,

[i]n criminal cases, jury instructions must be tailored to fit the allegations in the indictment and the evidence admitted at trial. If a jury charge recites the entire definition of a crime and the indictment does not, there is a reasonable probability that the deviation violated the accused’s due process rights by resulting in a conviction of a crime committed in a manner not charged in the indictment. Thus, this court has reversed convictions where the indictment specified that the offense was committed one way and the court charged the jury that it could be committed in two ways without giving a limiting instruction.

In this case, the jury instructions were clearly not tailored to fit the allegations in the indictment. Although Hopkins was charged only with aggravated battery by seriously disfiguring Franklin’s arm, the trial court instructed the jury that aggravated battery may also be committed by depriving a person of a member of her body or rendering a member of her body useless. Were this the extent of the court’s error, we would conclude that it was cured by the earlier instructions limiting the charges to those alleged in the indictment. This is because, on appeal, we consider the entire jury instructions, and any confusion caused by the additional definition would likely have been dispelled by the court’s limiting instruction.

But the instruction given was not so benign. In addition to charging the jury on the other methods of committing aggravated battery, the court specifically told the jury that the State could meet its burden of proving that Hopkins committed the offense with evidence of “a temporary diminished use of a member of the victim’s body.” Considering this instruction, and the evidence presented that Franklin lost the use of her arm, we do not believe that the court’s limiting instruction was sufficient to cure the error. The jurors were never told that, contrary to the court’s instruction, the State could not prove Hopkins committed the offense with proof that Franklin lost the use of her arm. Under the circumstances, “a reasonable probability exists that the jury convicted [Hopkins] of committing [aggravated battery] in a manner not charged in the indictment.” Because Hopkins’ right to due process was violated, his conviction for aggravated battery must be reversed.

3. Hopkins also asserts that the trial court erred in denying his general demurrer to the two counts of the indictment charging him with cruelty to children. The first of these two counts charged Hopkins with second degree cruelty to children in that he “did unlawfully commit a battery against Louise Franklin, having knowledge that [N. S., her grandchild], a child under the age of 18 was present and saw the act.” The second count charged the same offense, but named Franklin’s great-grandchild, C. R., as the victim. Hopkins argues that, because both counts are based on the same act of battery against Franklin, he could be charged with only one count of cruelty to children. We disagree.

Under Georgia law, a “person commits the offense of cruelty to children in the second degree when . . . [s]uch person, who is the primary aggressor, having knowledge that a child under the age of 18 is present and sees or hears the act, commits a forcible felony, battery, or family violence battery.” Contrary to Hopkins’ characterization of the two grandchildren as “mere[ ] witnesses” to the battery, we consider children who witness a battery to be victims under the child cruelty statute. And, if a defendant knows that more than one child is present and that each child witnesses the same battery, there is more than one victim, and the defendant may be charged with more than one count of second degree cruelty to children.

Decided April 30, 2002.

Leo E. Benton, Jr., for appellant.

Lydia J. Sartain, District Attorney, for appellee.

4. Hopkins similarly argues that because the two counts charging cruelty to children arose out of the same battery, the court should have merged them for sentencing purposes. Again, we disagree. As stated above, the evidence showed that Hopkins knew both children saw him batter Franklin, and he thus committed two separate crimes on two separate victims. Thus, notwithstanding the fact that each of these crimes was predicated on the children witnessing the same battery, they did not merge as a matter of fact or law. “Because there were [two] separate victims, the trial court did not err in treating the counts as discrete offenses for sentencing.”

Judgment affirmed in part and reversed in part.

Pope, P. J., and Barnes, J., concur.

       See Williams v. State, 248 Ga. App. 316 (546 SE2d 74) (2001).

       OCGA § 16-5-24 (a).

       (Punctuation omitted.) Williams, supra at 318 (1), citing Baker v. State, 246 Ga. 317, 318 (2) (271 SE2d 360) (1980); see also Keef v. State, 220 Ga. App. 134,137 (1) (a) (469 SE2d 318) (1996).

       (Punctuation omitted.) Williams, supra.

       Id. at 318-319 (1); see also OCGA § 16-5-23.1 (b) (defining “visible bodily harm” under the battery statute as “bodily harm capable of being perceived by a person other than the victim and may include, but is not limited to, substantially blackened eyes, substantially swollen lips or other facial or body parts, or substantial bruises to body parts”).

        Ganas v. State, 245 Ga. App. 645, 646 (1) (a) (537 SE2d 758) (2000).

        Williams, supra at 318 (1).

       See Ganas, supra.

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

       (Citations omitted.) McClain v. State, 220 Ga. App. 474, 475 (2) (469 SE2d 756) (1996).

       See id.; see also Green v. State, 240 Ga. App. 377, 379-380 (4) (523 SE2d 581) (1999); Gilliam v. State, 237 Ga. App. 476, 477-478 (1) (517 SE2d 348) (1999).

       See Lumpkin v. State, 249 Ga. 834, 836-837 (2) (295 SE2d 86) (1982); McClain, supra.

        Levin v. State, 222 Ga. App. 123, 127 (6) (473 SE2d 582) (1996); see also Dukes v. State, 265 Ga. 422, 423 (457 SE2d 556) (1995).

       See id. at 424.

       OCGA § 16-5-70 (c) (2).

        See Alexander v. State, 274 Ga. 787, 790 (561 SE2d 64) (2002).

       See Bartlett v. State, 244 Ga. App. 49, 51 (537 SE2d 362) (2000) (“proof that [the defendant], knowing the two boys were present, committed a forcible felony by pointing a riñe at their father’s head while threatening to kill their father is sufficient to authorize [the defendant’s] two separate convictions for cruelty to children in the second degree”); see also Hall v. State, 261 Ga. 778, 782 (7) (b) (415 SE2d 158) (1991) (evidence that two children witnessed father murder their brother was sufficient to support convictions on two counts of first degree cruelty to children); Sims v. State, 234 Ga. App. 678, 679-681 (1) (a) (507 SE2d 845) (1998) (evidence that two daughters saw their father stab their mother was sufficient to support convictions on two counts of first degree cruelty to children); Phillips v. State, 162 Ga. App. 199, 200 (2) (290 SE2d 142) (1982) (“one who, by a single act, injures more than one person may be charged with multiple offenses”).

       See Denny v. State, 222 Ga. App. 674, 675-676 (1) (475 SE2d 698) (1996).

       Id. at 676 (1); see also Gilchrist v. State, 270 Ga. 287, 288 (2) (508 SE2d 409) (1998) (“[b]ecause the two charges of possession of a knife during the commission of a crime underlay attacks on two separate victims, we find no error in the trial court’s refusal to merge the convictions entered on those two charges”); Sims, supra at 678 (defendant given two separate sentences for convictions on two counts of cruelty to children that were based on the children observing the same assault); Webb v. State, 68 Ga. App. 466, 467-470 (2) (23 SE2d 578) (1942) (physical precedent only) (defendant sentenced separately on multiple convictions for manslaughter and assault based on same car accident).


text:
    A02A0680.
    NAT KATZ & ASSOCIATES, LTD. v. BARBER et al.
    (564 SE2d 802)
   Ruffin, Judge.

Nat Katz & Associates, Ltd. (“Katz”) sued Ronald Barber for payment of goods and services that Katz provided to ICR, Inc. (“ICR”). Katz sought to hold Barber personally liable for ICR’s debt, alleging that Barber, the president of ICR, is the company’s alter ego. Following a bench trial, the trial court found insufficient evidence to pierce ICR’s corporate veil and entered judgment for Barber. Katz appeals, and for reasons that follow, we affirm.

1. In two enumerations of error, Katz argues, in essence, that the trial court erred in refusing to pierce the corporate veil. On appeal, we must construe the evidence favorably to the judgment, and we will uphold the trial court’s factual findings if any evidence supports them.

Viewed in this manner, the evidence showed that Barber was president of ICR, a construction company that performed work for various clients, including Wilbar Developers, LLC (“Wilbar”). Barber was the managing member of Wilbar, as well as its registered agent.

Wilbar retained ICR to perform construction work at a restaurant, and ICR hired Katz to install the restaurant’s carpet. As a result, Katz sent ICR an invoice in November 1999 for $8,142.90, which ICR did not pay. At trial, Barber admitted that ICR owed Katz the invoiced amount.

In December 1999, ICR incurred a second debt to Katz while renovating Barber’s home. Barber testified that his condominium homeowner’s association required him to employ a fully insured contractor during the renovations, and he used ICR as that contractor. Ninety percent of the remodeling work was billed through ICR, which paid certain invoices relating to the renovations. According to Barber, ICR accounted for such payments as an advance to him, as an officer, and he would reimburse ICR for those advances. Although ICR never paid Katz for its work on the condominium, Barber personally satisfied this debt.

At some point before the bench trial, ICR filed for bankruptcy, listing Katz as a creditor. Barber testified that ICR also owed him $68,000. The evidence further showed that creditors eventually foreclosed on Wilbar’s restaurant, and Wilbar was forced into involuntary bankruptcy. Barber and his wife operated the restaurant for approximately one year after the foreclosure.

Based on the evidence presented, the trial court refused to pierce ICR’s corporate veil. We find no error. “The concept of piercing the corporate veil is applied in Georgia to remedy injustices which arise where a party has overextended his privilege in the use of a corporate entity in order to defeat justice, perpetrate fraud or to evade contractual or tort responsibility.” To support its alter ego claim, Katz had to show that Barber abused ICR’s corporate form and “disregarded the separateness of legal entities by commingling on an interchangeable or joint basis or confusing the otherwise separate properties, records or control.” Resolution of this issue generally is left to the factfinder — in this case, the trial judge.

Katz argues that, by operating Wilbar’s restaurant after the foreclosure and using ICR to pay for his condominium renovations, Barber disregarded ICR’s corporate form and commingled the corporation’s funds and affairs with his own. Given the evidence presented, however, the trial court was authorized to reject Katz’s alter ego allegations. Barber testified that he, ICR, and Wilbar all maintained separate bank accounts. Indisputably, ICR acted as the contractor for Barber’s home renovations and paid expenses relating to that renovation out of its corporate accounts. Barber explained at trial, however, that he reimbursed ICR for those expenses, which were recorded on ICR’s books as officer advances, and Katz presented no contrary evidence. Barber further testified, without contradiction, that ICR owed him a significant amount of money. And, like the trial court, we cannot discern how Barber’s involvement with Wil-bar’s restaurant shows, as a matter of law, that Barber ignored ICR’s corporate separateness.

In its brief, Katz claims that the trial court erroneously required it to prove a routine of commingling in order to pierce ICR’s corporate veil. At trial, however, the judge explained that Katz needed to show that Barber “disregarded the separate entities by commingling on an interchangeable or joint basis or confusing the otherwise separate properties, records or control.” This is a correct statement of law, which the trial court properly applied to the facts.

Tasked with resolving the factual issues, the trial court found in Barber’s favor. Because evidence supported the trial court’s factual conclusions, we will not overturn its judgment on appeal.

2. Citing cases involving summary judgment requirements and affirmative defenses, Katz also argues that the trial court erroneously forced it to shoulder the burden of proof throughout the trial. According to Katz, once it presented a prima facie case supporting its alter ego theory, Barber “had the burden of disproving [Katz’s] case and proving its own defenses.” Specifically, Katz complains that the trial court did not require Barber to prove that he repaid ICR for funds spent on his home renovation or that ICR owed him money.

Decided April 30, 2002.

Isenberg & Hewitt, Harriet C. Isenberg, for appellant.

Weizenecker, Rose, Mottern & Fisher, Stephen G. Weizenecker, Melissa B. Silverman, for appellees.

As an initial matter, Barber presented uncontradicted evidence — in the form of his own testimony — that he repaid the funds ICR advanced to him during the renovations and that ICR owed him a significant debt. Katz’s claim that Barber offered no evidence on these issues is completely without merit. Furthermore, Katz’s reliance on summary judgment procedures is misplaced. The trial court entered judgment for Barber following a bench trial. Thus, the requirement that a defendant pierce a plaintiff’s pleadings on summary judgment is irrelevant here. Finally, the record shows that, at trial, Barber did not raise an affirmative defense on which he bore the burden of proof. Instead, he simply denied Katz’s alter ego allegations. Under Georgia law, Katz carried the burden of proving those allegations; Barber was not required to disprove them.

3. Barber’s request that we impose a frivolous appeal penalty against Katz under Court of Appeals Rule 15 (b) is denied.

Judgment affirmed.

Pope, P. J, and Barnes, J., concur.

       Katz also sued Wilbar Developers, LLC, which is not a party to this appeal.

       See Peace v. Dominy Holdings, 251 Ga. App. 654, 656 (1) (554 SE2d 314) (2001); Plaza Properties v. Prime Business Investments, 240 Ga. App. 639, 640 (2) (524 SE2d 306) (1999), aff’d, 273 Ga. 97 (538 SE2d 51) (2000).

        Soerries v. Dancause, 248 Ga. App. 374, 375 (546 SE2d 356) (2001).

       Id.

       See id.

       See Fuda v. Kroen, 204 Ga. App. 836, 838 (1) (420 SE2d 767) (1992) (former employee failed to show commingling between corporation and officers because, although eitíployee testified that corporation paid various expenses for officers, “he adduced no evidence showing that these were not legitimate business expenses or authorized by the corporation as part of [the officers’] compensation packages”).

       See Soerries, supra; Dews v. Ratterree, 246 Ga. App. 324, 327, n. 3 (540 SE2d 250) (2000).

       See Peace, supra.

       Citing Dews, supra, Katz asserts that such testimony is worthless without corroborative documentary proof. In Dews, we found that inconsistencies in the defendant’s testimony relating to asset commingling raised questions of fact regarding the plaintiff’s alter ego claim, precluding summary judgment. 246 Ga. App. at 326-327. That decision does not require us to ignore Barber’s trial testimony in this case.

       See Carver v. Jones, 166 Ga. App. 197, 198 (1) (303 SE2d 529) (1983) (“Where a defendant admits the essential facts of a plaintiff’s petition but sets up other facts in justification or avoidance, an affirmative defense is presented and the defendant ordinarily has the burden of proving it”).

       See id. (“The burden of proof is determined by the pleadings, and a defendant’s denial of the plaintiff’s allegations is notice to the plaintiff that he has the burden to prove them.”); OCGA § 24-4-1; see also Fuda, supra (evidence failed to support alter ego theory because claimant presented no proof that corporate payments to officers for allegedly personal expenses were not legitimate business expenses or part of the officers’ compensation plan).


text:
    A02A0718.
    MACK v. THE STATE.
    (564 SE2d 799)
   Ruffin, Judge.

A jury found Harvey George Mack guilty of two counts of second degree criminal damage to property. Mack appeals, challenging the sufficiency of the evidence. For reasons that follow, we affirm Mack’s conviction on one count, but reverse on the other count.

In reviewing Mack’s assertion that insufficient evidence supported the jury’s verdict, we view that evidence

in the light most favorable to the verdict, and [Mack] no longer enjoys the presumption of innocence; moreover, [we do] not weigh the evidence or determine witness credibility but only determine [ ] whether the evidence is sufficient under the standard of Jackson v. Virginia. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

Viewed in favor of the jury’s verdict, the evidence showed that the victim of the property damage was Mack’s estranged wife, Vonice Mack. After approximately two and one-half years of marriage, the couple started fighting, and Vonice, with her children, moved out of their Newnan home and in with her mother in Decatur. Vonice testified that, while she and the children were living with her mother, Mack told her that he had previously cut another woman’s car tires and threatened to “do [Vonice’s] cars the same way.” Because of the threat, Vonice parked the car she drove “right by the window [where she could] look and watch the car at night.”

Vonice lived with her mother for two months and then moved into an apartment back in Newnan. Although Vonice did not tell Mack that she had moved, he telephoned her at the apartment about ten days later. According to Vonice, when she asked Mack how he got her telephone number, he responded that “[h]e can always know where [she is] and find where [she is].”

In the early morning hours two days after Mack’s telephone call, Vonice was awakened by the sound of shattering glass. Vonice ran to the window where she saw “glass spattered all over [her] two cars,” an Oldsmobile and a 1998 Ford Explorer. Vonice called the police and then went outside to survey the damage. She testified that “[t]he tires were slashed on both of the vehicles, and the windows were broken out on the back of [her 1998] Explorer . . . and the driver’s side. On the Oldsmobile, the tires were slashed [,] [t]he front . . . [windshield] was [broken,] and the passenger side [window was broken].”

As Vonice was looking at the damage, a neighbor shouted from her apartment that she had seen the man who did it. The neighbor testified at trial that she was awakened by a loud noise, and when she looked out her window, she saw a man walk away from Vonice’s 1998 Ford Explorer to a black Ford Explorer that was parked under a streetlight. According to the neighbor, the man got into the passenger side of the black Ford Explorer, scooted over to the driver’s side, started the car, and drove away. When the police arrived, the neighbor described the man’s race and stated that he was short and skinny.

Vonice’s Explorer and Oldsmobile were the only two cars vandalized in the parking lot that night, and Vonice testified that the Explorer had an alarm that did not sound. Although the alarm could be disarmed with a key, the only people who had keys were Vonice and Mack. Vonice also testified that Mack drove a black 2000 Ford Explorer with a broken driver’s side door that would not open.

Mack was eventually arrested and charged in separate counts with damaging the two cars. At trial, he presented alibi testimony from a woman he was dating at the time, Veronica Gibbs. Gibbs testified that, on the night of the incident, she and Mack were on a date and that he picked her up around 8:00 or 9:00 p.m. in a red Mustang. According to Gibbs, they went to a bar and had drinks until about 10:00 or 10:30 p.m., and after driving around Jonesboro for four or five hours, she and Mack checked into a motel room located “in some part of Jonesboro,” where they remained until they went to breakfast at approximately 7:00 in the morning. Although Gibbs lived in Jones-boro and had only two drinks that evening, she could not recall the name of the motel or where it was located in Jonesboro.

“A person commits the offense of criminal damage to property in the second degree when he . . . [intentionally damages any property of another person without his consent and the damage thereto exceeds $500.00.” In this case, Mack argues that the evidence was insufficient because the State failed to (1) identify him as the individual who damaged the vehicles, (2) prove that the 1998 Ford Explorer was the property of another, and (3) prove that the damage to the Oldsmobile exceeded $500.

1. We find no merit in Mack’s arguments that insufficient direct evidence linked him to the crimes and that the jury was required to believe his alibi witness.

Proof by direct evidence ... is not required. A conviction may be based upon circumstantial evidence if the proved facts are not only consistent with the hypothesis of guilt, but exclude every other reasonable hypothesis but the guilt of the accused. When the evidence meets this test, circumstantial evidence is as probative as direct evidence, and whether this burden has been met is a question for the jury.

Here, there was sufficient circumstantial evidence that Mack damaged the vehicles. Mack recently threatened to damage Vonice’s vehicles, and he went so far as to track Vonice down, despite her attempts to hide. In addition, Mack had the only other key to disarm the Ford Explorer’s alarm, and the perpetrator was observed driving away in a car that was not only the same year, model, and color as Mack’s, but seemed to have the same peculiar damage to the driver’s side door as Mack’s car. Furthermore, the jury was not required to believe Mack’s alibi witness to the exclusion of the State’s proof that he damaged the vehicles. Instead, “[t]his determination [was] simply a resolution of conflicting evidence, a traditional role of the jury. . . . [T]he jury heard [Mack’s] defense of alibi and rejected it in favor of the State’s evidence.” Under the circumstances, “we conclude that the jury rationally could have found from the circumstantial evidence that every reasonable hypothesis was excluded except that [Mack was] guilty of [damaging the vehicles] .”

2. We also disagree with Mack’s argument that the State failed to present sufficient evidence that the 1998 Ford Explorer belonged to Vonice. In determining whether the car was the property of another, legal title is not conclusive. Instead, the State must only show that a person other than the defendant had a legal right to possess or occupy the property. Here, evidence showed that although both Vonice and Mack held title to the 1998 Ford Explorer, the car was registered in Vonice’s name, and after moving from the marital home, she drove that car while Mack drove the 2000 Ford Explorer and a red Mustang. In describing the 1998 Ford Explorer and the Oldsmobile, Vonice referred to the vehicles as “my two cars.” “A jury could reasonably conclude from this evidence that the [1998 Ford Explorer] was not [Mack’s] property alone, and that his damaging of the property would make him guilty of [criminal damage to property] .”

Decided April 30, 2002.

Sanders, Haugen, Sears & Meeker, Walter S. Haugen, for appellant.

Peter J. Skandalakis, District Attorney, Emily C. Gross, Raymond C. Mayer, Charles P. Boring, Assistant District Attorneys, for appellee.

3. We agree with Mack, however, that the State failed to prove that the damage to the Oldsmobile exceeded $500. To establish the amount of the damages, the State presented testimony from two police officers who described the damage, photographs of the damage, and the following testimony from Vonice:

Q. And [the damage to] the Oldsmobile?
A. I think the tires [cost] [$]300, and my son went to the junk yard and got parts for that one because I didn’t have insurance on that.
Q. Okay. And so what would have been approximately the total damage on that car?
A. Probably about five or — about $500.

This evidence does not show that the damage “exceeds $500.00,” as required by OCGA § 16-7-23 (a) (1). Without belaboring the point, we find that the jury was uninformed as to whether “about $500” meant a sum less than $500 or a sum that exceeded $500. Accordingly, “ ‘there was no competent evidence from which the jury could determine that the value of the damage for which defendant was responsible was in excess of $500, an essential element of the indicted crime,’ ” and Mack’s conviction for damaging the Oldsmobile must, therefore, be reversed.

Judgment affirmed in part and reversed in part.

Pope, P. J., and Barnes, J., concur.

       The State also charged Mack with aggravated stalking, but the trial court directed a verdict for Mack on this count.

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

       (Citation and punctuation omitted.) Leigh v. State, 223 Ga. App. 726, 728 (2) (478 SE2d 905) (1996).

       OCGA § 16-7-23 (a) (1).

       (Citations and punctuation omitted.) Hayes v. State, 249 Ga. App. 857, 860 (1) (549 SE2d 813) (2001).

       See Bacon v. State, 249 Ga. App. 347, 349 (1) (b) (548 SE2d 78) (2001).

       Id.

        Hayes, supra; see also Bacon, supra.

       See Rash v. State, 182 Ga. App. 655 (356 SE2d 719) (1987).

       See id. (in affirming conviction for second degree criminal damage to property Court ruled that “ ‘[1]awful occupancy by one in charge constitutes ownership as contemplated by the statute, and the question of legal title is not involved’ ”); see also Ginn v. State, 251 Ga. App. 159, 161 (2) (553 SE2d 839) (2001) (evidence showed defendant damaged property of another where husband damaged a computer keyboard that “was a gift to the family from [the wife’s] mother”); Frost v. State, 200 Ga. App. 267, 270 (3) (b) (407 SE2d 765) (1991) (same decided under arson statute, wife set fire to marital home lawfully occupied by husband).

        Ginn, supra.

       (Emphasis supplied.)

        Waldrop v. State, 231 Ga. App. 164, 166 (498 SE2d 337) (1998).


author: Eldridge, Judge.

text:
    A02A0146.
    In the Interest of A. L., a child.
    (564 SE2d 823)
   Eldridge, Judge.

A. L. was accused by a Department of Juvenile Justice petition, as amended, with burglary and theft by receiving stolen property. On June 11, 2001, after an adjudicatory hearing, A. L. was adjudicated delinquent on the charge of burglary. On the same date, the trial judge dismissed the count of theft by receiving stolen property. A. L. appeals. Finding no error in the enumerations raised, we affirm.

1. A. L. contests the sufficiency of the evidence to support his adjudication of delinquency on the charge of burglary.

In considering a challenge to the sufficiency of the evidence supporting an adjudication of delinquency, we construe the evidence and every inference from the evidence in favor of the juvenile court’s adjudication to determine if a reasonable finder of fact could have found, beyond a reasonable doubt, that the juvenile committed the acts charged.

(Citations and punctuation omitted.) In the Interest of J. M., 237 Ga. App. 298 (1) (513 SE2d 742) (1999); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

When viewed in such light, the evidence shows that on November 13, 2000, the victim returned home from work to find that his home had been burglarized and that his car, a blue 1988 Lincoln Towncar, which was parked in front of his home, had been stolen. The victim testified that the lock on the front door of his home was damaged and various items from his home, including the key to the car, were stolen. Y. T. R., who lived in the victim’s neighborhood, testified that shortly after the burglary, he saw A. L. driving the victim’s car on two separate occasions. On the first occasion, Y. T. R. testified that A. L. stopped and offered him a ride to school. At that time, he noticed that the key was in the car’s ignition because the keys were on a distinctive key ring which drew his attention to the key. Y. T. R. testified that he was familiar with the victim’s car and that he knew the car A. L. was driving was the victim’s because its make, color, and the Emory University tag on the front bumper made it distinctive. A. L. testified at trial. In his testimony he did not attempt to explain his actions, but simply denied being in the victim’s house and taking and driving the car.

Although the evidence of recent, unexplained or unsatisfactorily explained possession of stolen goods may be sufficient to give rise to an inference that the defendant committed the burglary, the sufficiency of the evidence to support the conviction must still be adjudged by the totality of the evidence under the reasonable doubt standard applied in Jackson v. Virginia, [supra].

Decided May 1, 2002.

Michael J. Walker, for appellant.

Paul L. Howard, Jr., District Attorney, Christopher M. Quinn, Assistant District Attorney, for appellee.

(Citations and punctuation omitted.) Romines v. State, 233 Ga. App. 790, 791 (1) (505 SE2d 530) (1998).

Once it is shown that goods were stolen in a burglary, absence of or unsatisfactory explanation of the possession of the goods will support a conviction for burglary based upon recent possession of the stolen goods. Whether a defendant’s explanation of possession is satisfactory is a question for the jury; so is lack of explanation.

(Citation omitted.) Brown v. State, 239 Ga. App. 520, 521 (521 SE2d 454) (1999). Further, “[w]hat constitutes recent possession is in all cases a jury question, to be determined very largely from the character and nature of the stolen property.” (Footnote omitted.) Kier v. State, 247 Ga. App. 431, 433-434 (1) (543 SE2d 801) (2000).

Viewed in favor of the verdict, there is sufficient evidence from which a rational trier of fact could have found A. L. guilty beyond a reasonable doubt of burglary. Jackson v. Virginia, supra. “The [juvenile court judge, as factfinder,] evidently disbelieved [A. L.’s] protestation of innocence, which is the [factfinder’s] prerogative.” (Footnote omitted.) Sinclair v. State, 248 Ga. App. 132, 134 (1) (546 SE2d 7) (2001); Hampton v. State, 272 Ga. 284, 285 (527 SE2d 872) (2000) (resolving evidentiary conflicts and inconsistencies and assessing witness credibility are the province of the factfinder, not this Court). Accordingly, the juvenile court judge’s verdict must be upheld.

2. A. L.’s second enumeration lacks citations of authority or reasoned argument as required by Court of Appeals Rule 27 (c) (2). Therefore, such enumeration of error is deemed abandoned.

Judgment affirmed.

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


text:
    A02A0378.
    FRIESON v. SOUTH FULTON MEDICAL CENTER et al.
    (564 SE2d 821)
   Smith, Presiding Judge.

In this medical malpractice action, Betty Ann Frieson appeals from the trial court’s ’dismissal of her complaint against all defendants on the ground that she failed to file an expert affidavit. We find that although the complaint was properly dismissed as to defendant Dr. Ignatius Akpele, dismissal was not warranted as to South Fulton Medical Center. We therefore affirm in part and reverse in part.

The record shows that Frieson brought suit pro se against South Fulton Medical Center, its “agents,” and Dr. Akpele, alleging that she was injured by their negligent medical care. Dr. Akpele moved to dismiss Frieson’s complaint against him on the ground that Frieson had not attached an expert affidavit to her complaint, as required by OCGA § 9-11-9.1. Frieson filed no response to the motion, nor did she attempt to file an expert affidavit, and the trial court granted Dr. Akpele’s motion. In that order, the trial court noted that South Fulton appeared to be in the same position as Dr. Akpele and stated that it would enter an order dismissing the complaint in its entirety unless objection was made within 15 days. Frieson made no objection, nor did she attempt to file an expert affidavit or seek an extension of time in which to file one, and the trial court dismissed Frieson’s complaint in its entirety.

Immediately thereafter, Frieson filed a pleading captioned “Request for a Denial of the Judge Order, Objection to the Defendant Akpele Motion to Dismiss Plaintiff Complaint and Request for Time to File an Affidavit.” The trial court treated this pleading as a motion for reconsideration and denied the motion because Frieson still had not attempted to file an affidavit, nor had she shown good cause for an extension. Frieson later filed a “Motion to Request a New Trial,” in which she contended that she need not file an expert affidavit. The court denied this motion as well. Still acting pro se, Frieson appeals.

1. South Fulton has moved this court to supplement the record with two exhibits: copies of its voluntary petition for bankruptcy, and a letter from Frieson to South Fulton’s registered agent. “It is elementary that documents upon which a party rests his case must be offered into evidence.” (Citation and punctuation omitted.) Hadden v. Owens, 154 Ga. App. 467, 468 (2) (268 SE2d 760) (1980). Neither of these documents was presented in the trial court. This is a court for correction of errors of law, and our decision must be made upon the record sent up by the trial court. When nothing in the record supports the contention of error, nothing is presented to this court for review. Williams v. Lemon, 194 Ga. App. 249, 252 (3) (390 SE2d 89) (1990). The motion is therefore denied.

2. Because South Fulton’s supplemental brief relies upon the documents with which it sought to supplement the record, its motion to file a supplemental brief is denied as well.

3. No question exists that OCGA § 9-11-9.1 applies to Frieson’s complaint against South Fulton. The determinative factor is “whether the professional’s alleged negligence required the exercise of professional judgment and skill. Claims of allegedly negligent administrative acts which do not require professional knowledge or skill assert ordinary negligence.” (Citations and punctuation omitted.) Peterson v. Columbus Med. Center Foundation, 243 Ga. App. 749, 754 (2) (533 SE2d 749) (2000). Here, Frieson has alleged in her complaint that because of her treatment by the hospital an incision became infected and that the hospital’s agent punctured her spinal column. The complaint states a claim for malpractice, rather than ordinary negligence, against the hospital.

Frieson contends, however, that the trial court erred in dismissing her complaint in its entirety because South Fulton never filed an answer and did not challenge the lack of an expert affidavit. She argues that the trial court should not have applied Dr. Akpele’s motion to South Fulton. We agree and reverse the dismissal of Frieson’s claim against South Fulton.

OCGA § 9-11-9.1 (b) provides, in pertinent part:

If an affidavit is not filed within the period specified in this subsection or as extended by the trial court and the defendant against whom an affidavit should have been filed alleges, by motion to dismiss filed contemporaneously with its initial responsive pleadingí,] that the plaintiff has failed to file the requisite affidavit, the complaint is subject to dismissal for failure to state a claim.

(Emphasis supplied.) With these words, the General Assembly has made a plaintiff’s failure to attach an expert affidavit to a medical malpractice complaint an affirmative defense. Such a defense must be properly asserted to be effective. Because South Fulton did not assert it, Frieson’s failure to file an expert affidavit does not warrant the dismissal of her complaint against South Fulton. Seely v. Loyd H. Johnson Constr. Co., 220 Ga. App. 719, 724 (470 SE2d 283) (1996); Colston v. Fred’s Pest Control, 210 Ga. App. 362, 364 (436 SE2d 23) (1993) (physical precedent only). The trial court erred in dismissing Frieson’s complaint against South Fulton.

4. Because Dr. Akpele filed a motion to dismiss at the time he filed his answer, we agree with the trial court that dismissal of Frieson’s claim against him was warranted. Indeed, Frieson appears to concede as much in her brief. The dismissal against Dr. Akpele is therefore affirmed.

Decided May 1, 2002.

Betty A. Frieson, pro se.

Carlock, Copeland, Semler & Stair, Jo Ann Jagor, Douglas W. Smith, Alston & Bird, Matthew W. Levin, Hall, Booth, Smith & Slover, Rush S. Smith, Jr., George A. Panos, for appellees.

Judgment affirmed in part and reversed in part.

Eldridge and Ellington, JJ, concur.


text:
    A02A0475.
    DAVIS v. THE STATE.
    (564 SE2d 825)
   Ruffin, Judge.

On March 1, 2001, James Phillip Davis, through counsel, filed a notice of appeal challenging his conviction for driving under the influence of alcohol. The following month, defense counsel moved to withdraw, and Davis executed a “Release of Counsel of Record,” indicating that he would pursue his appeal pro se or hire different counsel. The trial court granted defense counsel’s motion to withdraw on May 2, 2001.

We docketed this appeal on October 22, 2001. Davis failed to timely file his enumeration of errors and brief, and on January 14, 2002, we ordered him to file his appellate pleadings “no later than JANUARY 24, 2002.” In that order, we noted that failure to comply with the Court’s time requirements “may result in dismissal of the appeal.” Davis subsequently requested an additional extension of time, stating that he had not yet hired new counsel and that he intended to seek counsel “or proceed on [his] own.” On February 1, 2002, we extended the time for Davis to file his enumerations of error and brief until February 13, 2002.

Davis has not requested a further extension of time from the Court. And, despite our order to file his enumeration of errors and brief by February 13, 2002, he failed to do so. Furthermore, we have received no notice that Davis is represented by counsel in this appeal, leaving us to conclude that he is proceeding pro se. As we have held, “when an appellant elects to pursue his own appeal, and fails to file enumerations of error or a brief after having been ordered to do so by this court, the appeal will be dismissed.” Accordingly, we hereby dismiss Davis’s appeal.

Decided May 1, 2002.

James P. Davis, pro se.

Gerald N. Blaney, Jr., Solicitor-General, Stephen A. Fern, Assistant Solicitor-General, for appellee.

At this point, it appears that Davis slept on his appellate rights by neglecting to retain appellate counsel and making no effort to file the necessary appellate pleadings himself. If, however, Davis timely hired new counsel and was “deprived of his right to appeal by his attorney’s negligence or ignorance, or if he was not adequately informed of his appeal rights,” he may be entitled to an out-of-time appeal. As we routinely inform represented criminal defendants whose appeals have been dismissed for failure to file an enumeration of errors or briefs:

[I]f you do still want to appeal, you may have the right to an OUT-OF-TIME APPEAL — but YOU MUST TAKE ACTION to exercise that right by moving for an out-of-time appeal in the trial court. If your motion for an out-of-time appeal is granted, the trial court should appoint another attorney for you if you want one and cannot pay for one. If your motion for an out-of-time appeal is denied, you may appeal that denial to this court within thirty (30) days of the trial court’s decision.

Appeal dismissed.

Pope, P. J., and Barnes, J., concur.

        Whittle v. State, 210 Ga. App. 841, 842 (437 SE2d 842) (1993); see also Reese v. State, 216 Ga. App. 773, 774 (456 SE2d 271) (1995) (dismissing appeals of represented defendants because defense counsel failed to file enumeration of errors or a brief, despite being ordered to do so).

       (Punctuation omitted.) Smith v. State, 252 Ga. App. 472 (556 SE2d 527) (2001); see also Rowland v. State, 264 Ga. 872, 875 (2) (452 SE2d 756) (1995) (order dismissing represented criminal defendant’s appeal for procedural deficiencies should point out deficiencies and make defendant and counsel aware of the option of applying for an out-of-time appeal in the court of conviction); Reese, supra at 774-775 (same).

       (Punctuation omitted.) Id. at 775.


text:
    A02A1011.
    MOORE v. TEAGUE.
    (564 SE2d 817)

   Eldridge, Judge.

Plaintiff Angela B. Moore, an invitee to a home products demonstration in the home of defendant Sheri A. Teague, appeals from the grant of summary judgment in her slip and fall case. Plaintiff fell in the defendant’s kitchen but does not know why her legs and feet did a split; she assumed that it was from the wet floor, but she did not actually know if the floor was wet. Everyone at the party, including the plaintiff, was aware that the icemaker malfunctioned twice during the party, spilling ice onto the floor. There being no error, we affirm.

Plaintiff asserts that the trial court erred in granting summary judgment. We do not agree.

In 20 RCL 56, § 52, it makes the statement that “[t]he true ground[s] of liability [are] the proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that . . . recovery is permitted.” (Emphasis in original.) Gibson v. Consolidated Credit Corp., 110 Ga. App. 170, 173 (2) (138 SE2d 77) (1964) (first cited in a rainwater slip and fall case). “The rules governing the land proprietor’s duty to his invitee presuppose that the possessor knows of the condition and ‘has no reason to believe that they (his invitees) will discover the condition or realize the risk involved therein.’ 2 Restatement, Law of Torts, Sec. 343.” (Punctuation omitted.) Hunt v. Thomasville Baseball Co., 80 Ga. App. 572, 573 (56 SE2d 828) (1949) (risk of injury from a ball hit or thrown sitting in the bleachers); accord Jones v. West End Theatre Co., 94 Ga. App. 299, 302 (2) (a) (94 SE2d 135) (1956) (risk of stepping on empty beer can in drive-in movie). If both the owner or occupier and the invitee have equal knowledge of the dangerous defect, condition, or person, then there exists no duty to warn of what is already known to both. Gibson v. Consolidated Credit Corp., supra at 173-174. However, the owner or occupier of the premises is not relieved of the duty to keep the premises safe from such danger equally known, but the defenses of contributory negligence, assumption of risk, or comparative negligence arise to either bar recovery by the plaintiff or mitigate plaintiff’s damages. See OCGA § 51-3-1; Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980); Hunt v. Thomasville Baseball Co., supra at 573. To recover for a slip or trip and fall, the plaintiff must prove: (1) “that the defendant had knowledge of the presence of the foreign substance [or the static condition]”; and (2) “[that] the plaintiff must also show that he was without knowledge of its presence” and that “[t]he customer must exercise ordinary care for his own safety, and must by the same degree of care avoid the effect of the merchant’s negligence after it becomes apparent to him or in the exercise of ordinary care he should have learned of it.” (Punctuation omitted.) Alterman Foods v. Ligon, supra at 623, limited by, Robinson v. Kroger Co., 268 Ga. 735, 747-749 (2) (493 SE2d 403) (1997). Thus, under the first prong, the plaintiff must prove either actual or constructive knowledge of the dangerous condition by the owner to avoid summary judgment. See Kenny v. M & M Supermarket, 183 Ga. App. 225, 226 (358 SE2d 641) (1987) (constructive knowledge not shown and no direct evidence of slick or foreign substance on the floor); DeGracia v. Huntingdon Assoc., 176 Ga. App. 495, 496 (1) (336 SE2d 602) (1985) (direct evidence from inspection that water was not on floor 15 minutes prior to fall and no knowledge how the water got there); Player v. Bassford, 172 Ga. App. 135 (322 SE2d 520) (1984) (plaintiff did not know what caused the fall; therefore, the defendant’s knowledge could not be proven). Thus, it follows that if the defendant does not know of the dangerous condition and in the exercise of reasonable care does not discover it, then no duty arises either to warn of or to eliminate the dangerous condition. Therefore, absent knowledge of the dangerous condition, there can be no causation.

Causation is always an essential element in slip or trip and fall cases. Where the plaintiff does not know of the cause or cannot prove the cause, there can be no recovery, because an essential element of negligence cannot be proven. Alterman Foods v. Ligon, supra at 622-623 (did not know what caused her to fall); Kenny v. M & M Supermarket, supra at 226 (plaintiff did not know how or why she fell); Bradley v. Red Food Stores, 179 Ga. App. 39, 40 (345 SE2d 127) (1986) (same); Player v. Bassford, supra at 135 (did not know what caused her to fall). Where the plaintiff cannot identify the cause of the fall, summary judgment is appropriate, as here, because causation cannot be established, and therefore, the defendant’s knowledge of the dangerous condition, which actually caused the fall, cannot be shown as a precondition for liability. Alterman Foods v. Ligon, supra at 621-622 (plaintiff did not know the cause of her fall); Shadburn v. Whitlow, 243 Ga. App. 555, 556 (533 SE2d 765) (2000) (not certain as to cause of fall).

Where the cause of the fall, as in this case, is mere speculation, guess, or conjecture, there is not even a scintilla of evidence to create a material issue of fact for jury determination, because such conjecture has no probative value to create an issue of fact. Alterman Foods v. Ligon, supra at 624-625 (cannot infer that the store floor was negligently maintained merely from a fall); Shadburn v. Whitlow, supra at 556 (“speculation that [plaintiff! may have tripped on loose carpeting does not sufficiently establish causation”); Febuary v. Averitt Properties, 242 Ga. App. 137, 141 (2) (b) (528 SE2d 880) (2000) (“[plaintiff’s] pure speculation as to the cause of his fall failed to present a jury issue as to whether he had equal knowledge of the condition”); Head v. Sears Roebuck & Co., 233 Ga. App. 344, 345 (503 SE2d 354) (1998) (“The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to grant summary judgment for the defendant.”) (punctuation omitted); Clemmons v. Griffin, 230 Ga. App. 721, 722 (498 SE2d 99) (1998) (“[Plaintiff] only offered his own speculative testimony that the explosion was a most unusual event which would not ordinarily occur absent negligence.”); Kenny v. M & M Supermarket, supra at 226.

Decided May 1, 2002.

Akin & Tate, S. Lester Tate III, for appellant.

Magruder & Sumner, J. Clinton Sumner, Jr., John A. Owens, for appellee.

When causation for the fall cannot be shown by the plaintiff, the first prong (knowledge of the danger by the defendant) has not been shown, because the plaintiff cannot show a dangerous condition of which the defendant had knowledge that caused the injury. Alterman Foods v. Ligón, supra at 622-623. Thus, summary judgment is appropriate in a slip or trip and fall case such as the instant case where the cause remains unknown. Id. at 622.

Judgment affirmed.

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

       20 RCL (Ruling Case Law 1918) started in 1914 and went through 1931; American Jurisprudence (1936-1960) followed it; today AmJur2d series replaced both since 1962.

       Under Georgia law prior to the Restatement of Torts (Second), § 343, superior knowledge of the owner was necessary for the duty to warn and to guard against unreasonable dangers known to the owner, but the invitee had a duty to exercise ordinary care for his own safety. See Gibson v. Consolidated Credit Corp., 110 Ga. App. 170, 173 (2) (138 SE2d 77) (1964) (citing 20 RCL 56, § 52 for this proposition); see also Whatley v. Nat. Svcs. Indus., 228 Ga. App. 602, 604 (1) (492 SE2d 343) (1997); Jet Food Stores v. Kicklighter, 226 Ga. App. 552, 553 (1) (487 SE2d 120) (1997); Brennan v. The Freight Room, 226 Ga. App. 531, 533 (1) (487 SE2d 109) (1997); Newell v. Great A & P Tea Co., 222 Ga. App. 884, 885 (2) (476 SE2d 631) (1996).

        Whatley v. Nat. Svcs. Indus., supra; Housing Auth. of Atlanta v. Famble, 170 Ga. App. 509, 529-530 (317 SE2d 853) (1984) (storm drain behind housing project clogged up causing ponding where children drowned).


author: Barnes, Judge.

text:
    A02A0834.
    ROBERT STOVALL FAMILY, L.P. et al. v. CARROLL COUNTY WATER AUTHORITY.
    (564 SE2d 763)
   Barnes, Judge.

Robert Stovall Family, L.P., Graham Stovall Family, L.P. and Anne F. Stovall (collectively “Stovalls”) appeal from the trial court’s denial of their new trial motion in this condemnation action. On appeal, the Stovalls contend the jury verdict in their favor in the amount of $339,960 should be overturned because the trial court erroneously admitted evidence concerning the price they paid for the condemned land over 12 years before the Carroll County Water Authority’s taking of their land. We disagree and affirm.

The Stovalls contend the trial court should not have allowed the Carroll County Water Authority to introduce, over objection, evidence of the price the Stovalls paid for 323 acres of land in 1988 to determine the value of a smaller portion, 135.984 acres, that the Carroll County Water Authority condemned in 2000. The Stovalls argue on appeal that this evidence should not have been admitted because (1) it is too remote in time to establish the value of the land at the time of the taking and (2) the 1988 sale was not an arm’s length transaction reflecting the true market value of the land at the time of its purchase.

“The admission of evidence is a matter resting largely within the sound discretion of the trial court, and appellate courts will not interfere absent an abuse of discretion.” Lewis v. Uselton, 224 Ga. App. 428, 431 (8) (480 SE2d 856) (1997).

Unless the potential for prejudice in the admission of evidence substantially outweighs its probative value, the Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value. Evidence of doubtful relevancy or competency should be admitted and its weight left to the jurors. Where evidence is offered and objected to, if it is competent for any purpose, it is not erroneous to admit it.

(Citation omitted.) Cornelius v. Macon-Bibb County Hosp. Auth., 243 Ga. App. 480, 487 (5) (533 SE2d 420) (2000).

In Housing Auth. &c. of Atlanta v. Goolsby, 136 Ga. App. 156 (220 SE2d 466) (1975), we held admissible the purchase price of condemned land 15 years before the condemnation, noting:

The rule for ascertaining value as set out in 29A CJS 557, Eminent Domain, § 136 (6) is that “in arriving at the amount of compensation, or the market value of the property taken, the original cost of [the] property, although not controlling, as well as the cost of reproduction or replacement, less depreciation, although not a sole guide to or element of compensation, are factors which may be considered.”

Id. at 159 (3). See also Waller v. Clayton County, 200 Ga. App. 706, 708 (3) (409 SE2d 561) (1991) (physical precedent only) (holding evidence of a purchase price 17 years before the date of condemnation was admissible). In this case, the Stovalls’ objections to the evidence of purchase price go to its weight, not admissibility. We further find that the probative value of this evidence was not outweighed by any prejudicial impact. The trial court did not abuse its discretion by admitting the evidence or by denying the motion for new trial.

Decided April 16, 2002

Reconsideration denied May 2, 2002.

Albert B. Wallace, Stephen B. Wallace II, for appellants.

Price, Pyles, Dangle, Parmer & Rooks, Thomas E. Parmer, for appellee.

Our opinion in Dept. of Transp. v. Mendel, 237 Ga. App. 900 (517 SE2d 365) (1999), relied upon by the Stovalls, does not alter this result. In Mendel, a third party purchased an assignment of the original condemnee’s right of action for the value of the property. This assignment took place after the taking by the condemnor, and we held that the third party’s recovery was not limited to the amount paid for the assignment because the assignment had no bearing on the value of the property at the time of the taking.

Other cases cited by the Stovalls stand for the general proposition that the ultimate issue in a condemnation case is the value of the property when it is taken, not its value at an earlier time. See, e.g., Josh Cabaret, Inc. v. Dept. of Transp., 256 Ga. 749 (3) (353 SE2d 346) (1987). They do not, however, support the conclusion that evidence of the purchase price can never be considered by the jury in its determination of value at the time of taking.

Judgment affirmed.

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


text:
    A02A0022.
    DOWNING v. THE STATE.
    (564 SE2d 828)
   Miller, Judge.

Daniel Currean Downing was convicted of one count of kidnapping, three counts of aggravated assault, one count of burglary, and possession of a firearm during the commission of a crime. Following the denial of his motion for new trial, Downing filed this appeal. Downing contends that the trial court erred in permitting the State to introduce bad character evidence by allowing testimony about his and his co-defendant’s involvement in gang activity. We discern no error and affirm.

Viewed in the light most favorable to the verdict, the evidence established that early one morning, Mark Lorenzo Squires sought Downing’s help because Squires suspected that his girlfriend was dating someone else. Agitated and angry, Squires asked Downing if he had a pistol. Downing provided him with a .380 caliber Sig Sauer semi-automatic. Riding together in Squires’s car, the two men proceeded to the girlfriend’s house. As they neared her residence, they spotted a car parked in front of the house, so Squires drove to the end of the street where they could monitor the house. Minutes later, the girlfriend, her 12-year-old brother, and another man exited the house and began walking toward the parked car. Downing and Squires confronted them, and, at gunpoint, Squires ordered Charles Fubler out of the car. Fubler complied but managed to run to the front door and lock himself inside. When Squires could not open the front door, he fired into the door and then proceeded to kick open a side door. While Squires chased down Fubler, Downing grabbed the girlfriend and her brother. Downing forced both of them to the side door, where the brother entered first. By that time, Squires had already gunned down Fubler, shooting him in the head and chest. When the younger brother entered the kitchen, Squires shot him in the upper chest. As the girlfriend struggled desperately with Downing, trying to remove his hands from her neck, Downing overpowered her and forced her inside, where Squires shot her. A lone bullet pierced Downing’s arm while he was restraining her, entering the victim’s spine. After the shootings, Downing and Squires fled immediately with Downing driving Squires’s car back to his trailer. To enable Squires to elude capture by going to Atlanta, Downing provided him with $200. Later that same day, Downing obtained medical treatment for the gunshot wound to his left wrist.

Although the three victims survived, Squires’s girlfriend and her male friend sustained permanent disabilities. As a result of the bullet still lodged in her spine, the girlfriend remains paralyzed from the chest down, and her erstwhile companion has complications from a severe head injury. As a result of the shooting, he is now partially blind in both eyes and he forfeited some short-term memory ability, reading comprehension skills, and other mental acuity.

After waiving his rights, Downing provided police with his version of events. In a tape-recorded statement, Downing claimed that he had struggled with the girlfriend and her brother in order to keep them out of harm’s way because “I know my partner’s mad” and due to his concern that Squires would shoot her too. By Downing’s account, he was just trying to calm her down. An investigator who took a Polaroid of Downing prior to interviewing him testified that Downing flashed a gang-related hand sign while being photographed. At the time of the trial, Squires remained at large and was thought to be hiding in California where the Federal Bureau of Investigation was trying to locate him.

During the trial, the State elicited testimony tending to show that Downing and Squires were both connected to youth gangs. Nearly all of the objected-to testimony pertained to Squires and not Downing. Over objection, an investigator was allowed to testify about Squires’s gang affiliation. The officer testified that “[o]ur investigation shows that [Squires] also met with a gang called the Crips which has a chapter in Atlanta, and that he was going to stay with them awhile, and perhaps get help from them to get to California. He had previously been in California and was a member of the Crips gang.” Similarly, the girlfriend’s little brother was permitted to testify over objection that Squires had told him that he was affiliated with the Crips gang on the West Coast and “about how he attempted murder and stuff like that.” He also testified that Squires had said “something about Westside Crip, Gear Street; Gear Gang Crip, something like that.” He recalled seeing tattoos on Squires’s chest and arm. Squires’s girlfriend testified without objection that when she first met Squires, he told her that he had just been released from prison and about “the gang life.” But Downing interposed an objection when she was asked to describe the five or six tattoos that covered Squires’s body. Over defense objection, she testified that “[t]hey were gang signs. They were like Crips and tattoos of like a tower with clocks symbolizing when you did time, and like a bunch of gang signs all over his body.” Another officer was allowed to testify as to whether Downing had mentioned having any relationship to any gang, stating that “[Downing] did say that he was with the Eighth and Grand Boys which is a group down on Eighth Avenue and Grand Boulevard.”

In this appeal, Downing contends that the State impermissibly injected his character into the trial. He claims that the State deliberately and continually elicited testimony about alleged gang activity and gang affiliation. Downing asserts that his character “suffered assault and destruction at the hands of the State.”

The admission of evidence is a matter within the sound discretion of the trial court, and material evidence does not become inadmissible because it incidentally places the defendant’s character in issue. Price v. State, 269 Ga. 373, 374 (2) (497 SE2d 797) (1998). Evidence of membership in a gang is admissible to show a motive for a defendant’s criminal conduct. Mallory v. State, 271 Ga. 150, 153 (6) (517 SE2d 780) (1999). Although the State must make the evidence at issue relate to its case, it is not required to prove that the crimes committed were in furtherance of gang activity. See Wolfe v. State, 273 Ga. 670, 674 (4) (d) (544 SE2d 148) (2001).

Here, it is apparent that much of Downing’s criminal liability for the commission of the indicted offenses was derivative. Squires was the main perpetrator while Downing acted as his accomplice and as a party to the crimes. As such, the State was entitled to show that the two culprits were closely associated in such a way as to be expected to aid and support each other in committing these crimes and to show that Downing’s presence at the crime scene was hot mere happenstance. See Hayes v. State, 265 Ga. 1, 3 (6) (453 SE2d 11) (1995), overruled on other grounds, Clark v. State, 271 Ga. 6, 10 (5) (515 SE2d 155) (1999).

Decided May 2, 2002.

Garrett & Gilliard, Michael C. Garrett, for appellant.

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

Although Downing contends that his conviction was the result of circumstantial evidence and that the probative value of the “gang evidence” was “virtually non-existent,” the transcript belies these assertions. Downing admitted providing Squires with the sole firearm used in the shootings. Downing willingly accompanied Squires to the crime scene and referred to him as “my partner.” Once there, Downing physically restrained the girlfriend and her brother, foreclosing their escape and enabling Squires to shoot them. The girlfriend and her brother both identified Downing and testified about Downing’s actions during their ordeal. Thus, even if admission of testimony about the gang affiliations had been error, the evidence of Downing’s guilt is so overwhelming that any error would have been harmless. See Hartry v. State, 270 Ga. 596, 599 (2) (512 SE2d 251) (1999).

Judgment affirmed.

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