text:
    A98A2440.
    THE STATE v. DEAN.
    (510 SE2d 605)
   Beasley, Judge.

Lawrence Dean allegedly struck and bloodied his wife in May 1997. Dean moved to dismiss an indictment alleging felony family violence batteries under OCGA § 16-5-23.1 (f) (2), on the ground that an element of the crime was a previous conviction of a family violence battery. In 1994, before the 1996 enactment of OCGA § 16-5-23.1 (f) defining the offense of “family violence battery,” Dean had been convicted of battery against his wife. The court ruled that the prior conviction was not a conviction for family violence battery under the statute and granted Dean’s motion. The State appealed.

OCGA § 16-5-23.1 (f) provides: “If the offense of battery is committed between past or present spouses, persons who are parents of the same child, parents and children, stepparents and stepchildren, foster parents and foster children, or other persons living or formerly living in the same household, then such offense shall constitute the offense of family violence battery and shall be punished as follows:

“(1) Upon a first conviction of family violence battery, the defendant shall be guilty of and punished for a misdemeanor; and

“(2) Upon a second or subsequent conviction of family violence battery against the same or another victim, the defendant shall be guilty of a felony and shall be punished by imprisonment for not less than one nor more than five years.”

1. “The cardinal rule in the construction of legislative enactments is to ascertain the true intention of the General Assembly in the passage of the law. . . . Courts may construe the language employed in the act in connection with the context, and ascertain the legislative intent as derived from the old law, the evil, and the remedy. . . .”

The passage of OCGA § 16-5-23.1 (f) in 1996 did not create a new offense but rather a separate category of an existing offense. The act is as old as the first Biblical family. The statute simply enhanced the penalty for the already prohibited act of battery when such involved family members. It used the term “family violence battery” descriptively, for the relational category of victim involved and as a label for such instances, to distinguish them from others for the purpose of punishment. The statute did not declare criminal an act which heretofore had been non-criminal. If the facts of the prior conviction meet the definition, it counts. The first offense, pre-passage of the act, was and remains a misdemeanor; the second such offense, post-passage, bears more onerous consequences.

Enacted as a subpart of the penalty portion of the battery Code section, OCGA § 16-5-23.1 (f) increased to a felony the punishment of repeat convictions for battery against defined family members, just as OCGA § 16-5-23.1 (d) and (e) had earlier increased the punishment for second and third convictions for battery against the same victim. The legislature recognized in both instances that repetition itself increased the severity and reprehensibility of the act. For one thing, it demonstrates all too vividly and convincingly the lack of remorse of the perpetrator and the failure of first punishment to deter

Cofer v. Crowell similarly interpreted OCGA § 40-5-63 (a) (3), which at that time revoked one’s license for the third DUI conviction within ten years. In 1975 the legislature had amended the statute to redefine conviction to also include nolo contendere pleas. The defendant had pled nolo contendere to DUI charges in 1970 and 1974. When in 1977 he pled nolo to yet a third DUI charge, his license was administratively revoked, which decision a superior court reversed. Cofer reinstated the revocation, holding that the legislature could legitimately enhance punishment by redefining the effect or meaning of past pleas or convictions so long as the increased penalty was imposed for a crime committed after the enactment of the legislation.

Likewise, the legislature redefined Dean’s past battery conviction to be a family violence battery conviction, which could serve as a basis for enhancing the penalty under OCGA § 16-5-23.1 (f). He was forewarned that now what he had done in the past would bring a more severe penalty if he did it again. A charge of the latter is what he now faces.

Decided December 28, 1998.

Cheryl F. Custer, District Attorney, Andrea M. Dyer, Assistant District Attorney, for appellant.

John P. Howell, for appellee.

2. Dean contends that the application of OCGA § 16-5-23.1 (f) to increase his punishment based on convictions predating the enactment of the statute violates the state and federal constitutional prohibitions against ex post facto laws. Landers v. State rejected this argument. Even though a statute, passed after a conviction, uses the conviction as an element of a future offense, this is not an ex post facto law, because the defendant’s punishment for his earlier conviction is not increased. Rather, the statute punishes only for a future offense, which punishment is rationally enhanced by the prior conviction.

In Fowler v. State the defendant complained that the statute under which he was being charged as a habitual offender was enacted after his earlier traffic offenses. Holding that the habitual violator law was not an ex post facto law, Fowler explained that the law imposed punishment on future offenses only, although a heavier penalty was set for the new offense. “The increased penalty is for the latest crime, which is considered to be an aggravated offense because a repetitive one.” OCGA § 16-5-23.1 (f) is not an ex post facto law; it punishes only for post-enactment offenses.

Judgment reversed.

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

       See Ga. L. 1996, p. 449, § 1.

       See OCGA § 5-7-1 (a) (1).

       (Citation and punctuation omitted.) Bd. of Trustees &c. v. Christy, 246 Ga. 553, 554 (1) (272 SE2d 288) (1980). See Tippins Bank &c. Co. v. Southern Gen. Ins. Co., 266 Ga. 97 (464 SE2d 381) (1995) (“[tjhe cardinal rule in construing a statute is to glean the intent of the legislature”) (citations omitted).

       It tracked much of the language of OCGA § 19-13-1 (enacted in 1992), a civil statute defining “family violence” as a battery involving the same family members. See Ga. L. 1992, pp. 1266,1269, § 3.

       146 Ga. App. 639 (247 SE2d 152) (1978).

       Ga. L. 1975, pp. 1008, 1039, § 68B-312 (a) (3); compare Ga. L. 1972, pp. 1086, 1087-1088, § 3.

       See Baines, “Crimes Against the Person: Increase Penalty for Family Violence Convictions and Reduce the Number of ‘Free Strikes’ for Batterers,” 13 Ga. St. Univ. L. Rev. 101, 102 (1996) (“[t]he Act... allows a felony charge for the second and all subsequent offenses of battery on a family member as defined by Code section 19-13-1”); see also Haley v. Hardison, 247 Ga. 750 (279 SE2d 712) (1981) (before committing subsequent offense, accused was on notice that bond forfeiture was considered a conviction).

       U. S. Const., Art. I, Sec. IX; Ga. Const. of 1983, Art. I, Sec. I, Par. X.

       250 Ga. 501, 503-504 (4) (299 SE2d 707) (1983).

       See Johnson v. State, 229 Ga. App. 400 (493 SE2d 926) (1997) (“even if the previous offense occurred before the effective date of the statute, application of the statute is not ex post facto if the offense for which the defendant is being sentenced occurred after the effective date”) (citations omitted); Lloyd v. State, 226 Ga. App. 401, 403 (5) (487 SE2d 44) (1997) (same).

       235 Ga. 535 (221 SE2d 9) (1975).

       (Citations omitted.) 235 Ga. at 536; see Tribble v. State, 168 Ga. 699 (1) (a) (148 SE 593) (1929) (“[t]he propriety of inflicting severer punishment upon old offenders has long been recognized in this country and in England; and they are not punished a second time for the earlier offense, but the repetition of criminal conduct aggravates their guilt and justifies heavier penalties when they are again convicted”) (citations omitted).


source: Caselaw Access Project

author: POPE, Presiding Judge.

license: Public Domain

text:
    A98A1985.
    MOORE v. THE STATE.
    (510 SE2d 607)
   POPE, Presiding Judge.

Howard Moore was charged with driving on the wrong side of the road and driving under the influence of alcohol to the extent that it was less safe for him to drive. He was tried by a jury and convicted of DUI, but acquitted of driving on the wrong side of the road. He appeals, raising three enumerations. For the following reasons, we affirm.

Viewing the evidence in the light most favorable to the verdict, it showed that Baldwin County Sheriffs Deputy William Cloud was patrolling in the early morning hours when he saw a car, driven by Moore, make a wide right turn into his lane of travel. The vehicle remained on the wrong side of the road for about 150-300 feet, forcing Cloud to pull off the road to avoid a collision.

Officer Cloud stopped Moore’s vehicle and detected a strong odor of alcohol coming from Moore. Cloud asked Moore to step to the rear of the vehicle and noticed that Moore had “very red, very glassy eyes.” Officer Cloud asked Moore to submit to a roadside alcosensor test, and Moore refused. Cloud testified that Moore was “very adamant” about refusing the test and was “very uncooperative.” Cloud testified that based on Moore’s demeanor, he did not think Moore would comply with any requests to submit to field sobriety tests.

Moore was placed under arrest for driving under the influence of alcohol to the extent that it was less safe for him to drive and read his implied consent rights. Moore refused to submit to any state-administered chemical tests.

At trial, Cloud testified that there was no doubt in his mind that Moore was under the influence of alcohol to the extent that he was a less safe driver. Cloud stated that his opinion was based on Moore’s erratic driving; on his very red and glassy eyes; and on the smell of alcohol emanating from Moore. Cloud testified that Moore’s uncooperative attitude was also indicative of intoxication.

Moore testified and denied that he was intoxicated at the time of his arrest. He admitted that he had consumed two beers earlier in the evening at a pool hall.

1. During deliberations, the jury sent a note to the court asking: “[b]y not submitting to a sobriety test is the defendant automatically charged with DUI?” After consultation with counsel, the court recharged the jury with its original charge on driving under the influence which contained the pattern charge on driving under the influence to the extent that it was less safe for the person to drive, and contained the language of OCGA § 40-6-392 (d). See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, p. 138 (2nd ed. 1991).

Decided December 29, 1998.

Tom C. Moore, for appellant.

Maxine Blackwell, Solicitor, for appellee.

In his first enumeration of error, Moore claims that the trial court erred in recharging the jury on DUI and not recharging on issues beneficial to him. Moore also contends that the recharge was erroneous because a simple “no” would have answered the jury’s question.

Although the court would not have erred by answering the inquiry from the jury with a simple “no,” we find no reversible error in the recharge. “Where the jury requests further instructions upon a particular phase of the case, the court in his discretion may recharge them in full, or only upon the point or points requested.” (Citation and punctuation omitted.) Bowley v. State, 261 Ga. 278, 280 (3) (404 SE2d 97) (1991). Moreover, “[t]he original charge adequately covered the issues of reasonable doubt and burden of proof. Thus, the charge, taken as a whole, was proper.” (Citation and punctuation omitted.) Brown v. State, 226 Ga. App. 447, 448 (2) (486 SE2d 678) (1997).

2. Next, Moore contends that the trial court erred in denying his motion for directed verdict since the evidence was insufficient to convict. We reject Moore’s arguments and conclude that a rational trier of fact could find from the evidence adduced at trial proof of his guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); see also Garrett v. State, 230 Ga. App. 97 (2) (495 SE2d 579) (1998); Heath v. State, 229 Ga. App. 69 (493 SE2d 225) (1997). Accordingly, the denial of Moore’s motion for directed verdict was proper. See generally Harvey v. State, 212 Ga. App. 632, 634 (2) (442 SE2d 478) (1994).

3. Finally, Moore contends that the court erred in ruling that Deputy Cloud’s absence at the Administrative Hearing was inadmissible. The court ruled that evidence regarding the administrative hearing procedure was inadmissible. This ruling was not erroneous. See generally Keith v. State, 204 Ga. App. 404 (1) (419 SE2d 491) (1992). Moreover, despite the court’s ruling that the evidence was inadmissible, Moore testified that the deputy had not been present at the hearing. Thus, any alleged error would have been harmless.

Judgment affirmed.

Beasley and Ruffin, JJ, concur.


author: Pope, Presiding Judge.

text:
    A98A2097.
    COLLINS v. THE STATE.
    (510 SE2d 609)
   Pope, Presiding Judge.

Larry Collins appeals from his armed robbery and burglary convictions.

1. Collins’ challenge to the sufficiency of the evidence is without merit. Thomas Harmon testified that he was washing his car outside his condominium when three men approached him with guns and forced him inside the condominium. One of Harmon’s neighbors witnessed the incident and called the police. Inside the condominium, Harmon testified, the men tied him up with a lamp cord, hit him on the head, ripped the telephone from the kitchen wall, ransacked the place, and then left after finding approximately $150. When the police arrived Harmon was outside the condominium bleeding from his head. While investigating the crime scene, the police lifted a fingerprint from the telephone in Harmon’s kitchen. A Georgia Bureau of Investigation fingerprint expert examined the print and concluded that it matched Collins’ fingerprint. Harmon identified Collins in court as one of the men who robbed him.

Collins denied that he participated in the crimes. He claimed that his fingerprint was on the telephone because he had used it the day before the robbery when he was in the condominium to buy marijuana from Harmon.

Contrary to Collins’ argument, the evidence, when viewed in the light most favorable to the verdict, was sufficient to enable the jury to find him guilty beyond a reasonable doubt of armed robbery and burglary. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Jones v. State, 195 Ga. App. 894 (395 SE2d 83) (1990); Boyd v. State, 168 Ga. App. 246-248 (1) (308 SE2d 626) (1983).

2. Collins contends the court erred in not allowing him to ask Harmon on cross-examination where he lived prior to the incident at his condominium. The prosecutor objected to the question as irrelevant and the court sustained the objection. “The admission or exclusion of evidence which is objected to on the ground of relevancy lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion.” (Citations and punctuation omitted.) Rary v. State, 228 Ga. App. 414, 415 (2) (491 SE2d 861) (1997). Here, the trial court did not clearly abuse its discretion in determining that the victim’s prior residence had no relevance to the armed robbery and burglary occurring at a different residence. See Hayes v. State, 193 Ga. App. 33, 34 (2) (387 SE2d 139) (1989). Collins has shown no reversible error.

3. Collins enumerates that the court erroneously sustained the state’s objection to his question about statements he made to a detective. The enumeration of error, however, is not supported in Collins’ brief by citation of authority or argument, and is therefore deemed abandoned. Court of Appeals Rule 27 (c) (2); Brundage v. State, 231 Ga. App. 478, 480 (3) (499 SE2d 408) (1998).

Decided December 29, 1998.

Gerald P. Privin, for appellant.

Robert E. Keller, District Attorney, Nancy T. Bircher, Assistant District Attorney, for appellee.

Judgment affirmed.

Beasley and Ruffin, JJ, concur.


author: Andrews, Chief Judge.

text:
    A98A1889.
    In the Interest of A. K. M., a child.
    (510 SE2d 611)
   Andrews, Chief Judge.

The father of A. K. M. appeals from the juvenile court’s order terminating his parental rights to his four-year-old son. Because the juvenile court’s ruling was supported by clear and convincing evidence, we affirm.

A. K. M. was born in August 1994 and was taken into the custody of the Department of Family & Children Services (DFACS) in December 1995. A. K. M.’s mother, who was unmarried, surrendered her parental rights in January 1997 and identified appellant as the biological father of A. K. M. The mother also stated that appellant had never legitimated the child and never contributed anything toward his support.

On February 7, 1997, DFACS sent the father a letter informing him that the mother had surrendered her rights and he had 30 days in which to file a petition to legitimate A. K. M. The father never filed a petition to legitimate the child.

DFACS then filed a petition to terminate the father’s rights on June 23, 1997, and the court scheduled a hearing on the petition for October 13, 1997. The father attended the hearing and requested á continuance pending the results of a paternity test he took on September 23, 1997. The court granted the continuance and set another hearing for November 17, 1997. At the same time, the father was again served with a summons re-setting the hearing until November 17 and stating that he had 30 days in which to file a petition to legitimate the child or his parental rights would be terminated.

The father received the results of the paternity test on November 6, 1997. He went to the hearing on November 17 on the petition to terminate his rights and never told the court he had received the paternity test results or wished more time to legitimate the child. Therefore, the court granted the petition to terminate the father’s parental rights. This appeal followed.

The standard of review on appeal from a termination of parental rights is whether, after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s right to custody should be terminated. In the Interest of L. F., 203 Ga. App. 522 (417 SE2d 344) (1992). On appeal, “[t]his Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the trial court’s factfinding and affirm unless the appellate standard is not met.” In the Interest of R. N., 224 Ga. App. 202 (480 SE2d 243) (1997).

1. In his first enumeration of error, the father claims the termination petition is a nullity because “the document was never effectively verified.” Specifically, the father objects because the verification was signed and notarized on June 3, 1997, by the DFACS caseworker and the petition itself was not signed by counsel for DFACS until the next day, June 4,1997. Appellant cites no authority for his contention that this renders the termination petition a “nullity,” and we find none. Indeed, OCGA § 15-11-25 requires only that the petition be verified and contain certain information. Counsel for DFACS stated in his place to the court that he prepared the petition, that it was reviewed and verified, and then signed by him the next day. Accordingly, the petition complies with the requirements of OCGA § 15-11-25. This enumeration of error is without merit.

2. Next, appellant argues that “the court created a legally contradictory situation in which appellant relied to his detriment.” Here, the father appears to be claiming that he thought he had 30 days from the date he received the test results to start legitimation proceedings. He says he went to a meeting of the Foster Care Review Panel on November 5, 1997, and the panel scheduled another meeting for December 3, 1997, pending the results of the paternity test. Therefore, the father claims he was “misled” into believing that the issue regarding his parental rights was “deferred” until December 3.

The father does not explain, however, why, after receiving the results of the paternity test on November 6, 1997, he then went to the hearing on November 17 on the petition to terminate his rights and never informed the court he received the test results or wanted to legitimate the child. At the hearing, the trial court, after hearing testimony from the mother in which she stated she wanted to surrender her parental rights to DFACS, asked the father: “Mr. Hill, do you have anything you want to present today in terms of evidence or a statement or anything?” The father replied: “Well, all I can say is that from — from the beginning when I was in court, I said that if I was the father, I would take full responsibility as I — as I always said.” The father said nothing further. He never admitted that it was confirmed that he was the father of the child, never expressed any wish to legitimate the child and never asked the court for more time in which to do so.

Decided December 30, 1998.

Giddens, Davidson & Mitchell, Kenneth Mitchell, for appellant.

Thurbert E. Baker, Attorney General, William C. Joy, Dennis R. Dunn, Senior Assistant Attorneys General, Shalen A. Sgrosso, Assistant Attorney General, John A. Kupris, for appellee.

Pursuant to OCGA § 15-11-83, a biological father who is not the legal father of the child shall be notified of the petition to terminate parental rights and shall be advised that he loses all rights to the child and may not object to the termination of those rights if he does not file a legitimation petition within 30 days of the notice of the petition to terminate parental rights. OCGA § 15-11-83 (h). Here, the father was first notified on February 7, 1997, that he had 30 days in which to file a petition to legitimate A. K. M. Nine months later, as of the date of the November 17 hearing, he still had not done so, despite being informed eleven days earlier that the paternity test results showed the child was his. Nor did he inform the court that he received the paternity test results and wished more time in which to file a petition to legitimate. Therefore, there was no error in the court’s determination that his rights should be terminated under OCGA § 15-11-83. In the Interest of D. B. G., 226 Ga. App. 29, 30 (485 SE2d 575) (1997).

The father later filed a motion for reconsideration of the court’s order terminating his parental rights. A review of the transcript of the hearing on that motion shows the father did not explain why he said nothing at the termination hearing about the results of the paternity test and wanting more time to legitimate the child. As discussed above, he merely claimed that he was somehow misled into believing he had more time in which to file the petition. The trial court found this argument insufficient to justify the failure to file a legitimation petition despite being clearly directed to do so, first in the notice mailed to him on February 7, 1997, and again in the notice served on him after the October 13, 1997 hearing. As the trial court pointed out, the baby was born on August 22, 1994, and the father made no effort to legitimate the child or develop a meaningful reía-, tionship with the child until December 1, 1997, when he filed the motion for reconsideration. The juvenile court did not err in denying the motion for reconsideration.

Judgment affirmed.

Beasley and Ruffin, JJ, concur.


text:
    A98A2000.
    In the Interest of J. O. L., a child.
    (510 SE2d 613)
   Andrews, Chief Judge.

The parents of J. O. L. appeal from the trial court’s order terminating their parental rights in conjunction with a petition for adoption brought by the child’s grandparents. Because the court’s ruling was supported by clear and convincing evidence, we affirm.

The child, a boy born on October 8, 1996, was placed with his grandparents immediately after he was born. The child’s mother is unmarried, and the biological father never filed a petition for legitimation. When the child was 17 months old, the grandparents filed a petition to adopt the boy. The parents objected to the petition, and after a hearing, the court terminated their parental rights and allowed the adoption petition to proceed. This appeal followed.

The standard of review on appeal from a termination of parental rights is whether, after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s right to custody should be terminated. In the Interest of L. F., 203 Ga. App. 522 (417 SE2d 344) (1992). On appeal, “[t]his Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the trial court’s factfinding and affirm unless the appellate standard is not met.” In the Interest of R. N., 224 Ga. App. 202 (480 SE2d 243) (1997).

At the termination hearing, a caseworker with the McIntosh County Department of Family & Children Services (DFACS) testified that the child was born prematurely, weighing only two pounds at birth. The mother, who was 18 at the time the baby was born, tested positive for drug use at the time of the baby’s birth and had been hospitalized before the baby was born for severe depression and attempted suicide. The caseworker also testified that the mother’s medical records showed not only suicidal, but also homicidal tendencies.

The baby was hospitalized for approximately one month after his birth, and DFACS took custody of the baby while he was still in the hospital. The caseworker said DFACS tried to work with the parents to make their home a safe place for the baby, but, neither parent had stable employment and they lived in a trailer with no electricity and holes that went through to the ground. The caseworkers were concerned because the baby would need adequate heating and would be on a heart monitor which would require electricity.

Caseworkers set up a case plan with the parents requiring the father to legitimate the child and requiring both parents to become drug- and alcohol-free and to participate in drug screening. Neither parent went for the drug tests. The father admitted he had not filed a petition to legitimate the child.

The mother testified and claimed that she did take one drug test, but admitted that was all. In response to a question from the court, the mother said she did not take the drug tests because she was still using drugs until two and a half months before the hearing. The mother admitted she had not gone to counseling and had attended only one parenting class.

The mother also said the furnace was still not working in the trailer, but they did have a space heater. Although the judge at the initial custody hearing had asked her to look for a different job, the mother said she was still working as a nude dancer.

The mother stated that she was not ready to take care of the child at that time. She said that she would possibly be ready in “the next three to five, six months, yes.”

“Pursuant to OCGA § 15-11-81 (a), a . . . court deciding whether to terminate a parent’s rights employs a two-prong test, first determining whether there is clear and convincing evidence of parental misconduct or inability.” In the Interest of R. N., supra. A finding of parental misconduct or inability must rest on clear and convincing evidence showing: (1) the child is a deprived child as defined by OCGA § 15-11-2; (2) the lack of proper parental care or control by the parent in question is the cause of the child’s status as deprived; (3) such cause of deprivation is likely to continue or will not likely be remedied; and (4) the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child. ÓCGA § 15-11-81 (b) (4) (A) (i), (ii), (iii), and (iv); In the Interest of R. N., supra. The Code defines a “deprived child” as “a child who: (A) Is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health or morals. . . .” OCGA § 15-11-2 (8) (A). If the first prong of the test is met, the trial court then considers whether termination of the parental rights is in the child’s best interest. In the Interest of R. N., supra.

Here, there is no contention the child is not deprived or that lack of parental care is not the cause of the deprivation. The mother admits she cannot care for the child at this time. The mother also admits it will be some time in the future before she can care for the child. The mother does contend that the court erroneously found that the deprivation was likely to continue or would not likely be remedied. She claims she is willing to cooperate in a re-unification plan with the child.

Decided December 30, 1998.

Robert H. Baer, for appellant.

Steven L. Morgan, for appellee.

In determining whether conditions of deprivation are likely to continue, the court may consider the past conduct of the parent. In the Interest of J. M. C., 201 Ga. App. 173, 174 (410 SE2d 368) (1991). In this case, there was not only evidence of past unfitness, there was present unfitness and the mother appeared unsure of how long it would be before she could care for the child. Both the mother and father admitted they did not comply with the case plan DFACS set up for them. In light of this and in light of the mother’s own admission that she would be unable to care for the child for at least several months, there was sufficient clear and convincing evidence from which the trial court could conclude the deprivation was likely to continue.

In looking at the second prong of the test, whether termination is in the best interest of the child, the court may consider the child’s need for a stable home environment and the detrimental effects of prolonged foster care. In the Interest of J. M. C., supra at 175. Children need permanence of home and emotional stability or they are likely to suffer serious emotional problems. In the Interest of T. R. G., 162 Ga. App. 177, 179 (290 SE2d 523) (1982). The court may also look at the same factors which show parental inability to care for the child to support a finding that termination of parental rights would be in the child’s best interest. In the Interest of G. K. J., 187 Ga. App. 443, 444 (370 SE2d 490) (1988). These considerations, together with the mother’s uncertainty as to when she would be able to care for the child, were sufficient clear and convincing evidence that termination was also in the best interest of the child. In the Interest of J. M. C., supra; In the Interest of T. R. G., supra.

Judgment affirmed.

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


author: Ruffin, Judge.

text:
    A98A2226.
    ANDREWS v. THE STATE.
    (510 SE2d 841)
   Ruffin, Judge.

Gene Andrews appeals his conviction of aggravated child molestation, contending that the trial court erred in denying his motion for mistrial after character evidence was improperly admitted. Because the trial court did not abuse its discretion in denying the motion, we affirm.

Prior to trial, Andrews agreed to submit to a polygraph test and stipulated to the admissibility of the test results. Andrews was initially tried on October 9, 1997, but that case ended in a mistrial, and he was retried on April 6, 1998. At the second trial, the State questioned GBI agent David Rush, who administered the polygraph test, about the circumstances surrounding the test. Rush testified that, before administering a polygraph test, he asks the individual being tested several questions to determine whether he is under the influence of any substance that might affect the test. Rush then testified as follows: “Q. And did you question [Andrews] as to whether he had consumed any alcohol or taken some narcotics prior to this test? A. Yes, sir, I did. Q. What did he tell you? A. Mr. Andrews told me that he had used some crack-cocaine at approximately 9:00 p.m. the evening before.” Andrews’ attorney then moved for a mistrial, contending that this evidence constituted inadmissible character evidence.

In response, the prosecutor stated that Rush’s testimony was necessary to show that the test had been properly administered. He stated that he asked Rush about Andrews’ statement because, in the first trial, Andrews’ attorney had argued that the test was invalid because Andrews was under the influence, and he anticipated a similar challenge in this case. The trial court denied the motion for mistrial, but instructed the jury that Rush’s testimony regarding Andrews’ statement was not to be considered for any purpose except determining the validity of the polygraph test. The trial court asked if any of the jurors could not obey his instruction, and there was no response from the jury. Rush subsequently testified that, notwithstanding any drug use the night before, Andrews did not appear to be under the influence of any drug at the time of the test.

As an initial matter, it does not appear that the prosecutor’s question was improper. “Where evidence that is probative for some other purpose incidentally places the defendant’s character in evidence, such evidence does not violate the statutory prohibition and is admissible.” Fulton v. State, 232 Ga. App. 898, 901 (4) (503 SE2d 54) (1998). “What is forbidden is the introduction lay the state in the first instance of evidence whose sole relevance to the crime charged is that it tends to show that the defendant has bad character.” Frazier v. State, 257 Ga. 690, 698 (16) (362 SE2d 351) (1987).

Clearly, whether or not the polygraph test was properly administered is a relevant matter, and the State was entitled to present evidence of the circumstances surrounding the test to prove to the jury that the test results were accurate and reliable. See Cook v. State, 232 Ga. App. 796, 797 (1) (503 SE2d 40) (1998) (“ ‘every act or circumstance serving to elucidate or to throw light upon a material issue or issues is relevant’ ”). The State was not required to wait for Andrews to challenge the accuracy of the test results based on his drug use before raising the issue itself. As a matter of prudent trial strategy, it is often preferable to raise a potentially damaging matter on direct examination, rather than waiting for the opposing party to raise it on cross-examination and thus risk it appearing to the jury that the witness was trying to hide an unpleasant fact.

In this case, the State had reason to believe that Andrews’ drug use would be a significant issue. In the first trial, Andrews’ attorney argued that the drug usage had caused Andrews to fail the polygraph test. During opening arguments in the second trial, Andrews’ attorney cryptically advised the jury to “listen to all the events surrounding this alleged polygraph test.” Before asking Rush about Andrews’ statement, the prosecutor asked numerous questions (taking up more than two pages in the trial transcript) relating to how drug or alcohol use could affect a polygraph result, whether Rush typically asked individuals if they had used alcohol or drugs before the test, and whether Rush asked Andrews such a question. At no point did Andrews’ attorney object to this line of questioning or stipulate to the accuracy of the test results; rather, she waited until Rush testified about Andrews’ statement before claiming that she never intended to raise the drug issue as a challenge to the test. Under all of these circumstances, we do not believe that the State was precluded from offering evidence of Andrews’ statement as a relevant circumstance surrounding the administration of the polygraph test.

Moreover, even if the prosecutor’s question was improper, the trial court did not abuse its discretion by refusing to grant a mistrial. “Whether to grant a mistrial based on improper character evidence is within the discretion of the trial judge. In reviewing the trial court’s decision, an appellate court may consider the nature of the statement, the other evidence in the case, and the court’s and counsel’s action in dealing with the impropriety.” (Footnotes omitted.) Sims v. State, 268 Ga. 381, 382 (2) (489 SE2d 809) (1997). Whether curative instructions will suffice instead of a grant of mistrial is a matter within the discretion of the trial court. Usher v. State, 259 Ga. 835, 836-837 (2) (388 SE2d 686) (1990); Wesley v. State, 228 Ga. App. 342, 344 (3) (491 SE2d 824) (1997).

As discussed above, the issue of Andrews’ drug use was relevant to the accuracy of the polygraph test, and was not a purely extraneous fact having no relevance to the issues being tried. Immediately before Rush testified as to Andrews’ statement, the jury heard testimony about how alcohol and drug usé could affect a polygraph test. The trial court’s limiting instruction clearly advised the jury that it could only consider the testimony of drug use for the purpose of determining the validity of the polygraph test, and the jurors indicated that they could follow the judge’s instruction. Under these circumstances, the trial court was within its discretion in concluding that the jury could understand and follow the limiting instruction, and thus did not err in denying the motion for mistrial. See Sims, supra.

Decided December 31, 1998.

Dallas Law Firm, Lucy J. Bell, for appellant.

Dennis C. Sanders, District Attorney, William P. Doupe, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Blackburn, Judge.

text:
    A98A1972.
    BRANTLEY et al. v. DEPARTMENT OF HUMAN RESOURCES.
    (509 SE2d 645)
   Blackburn, Judge.

Donna Kay Brantley and Chris Wynn appeal the trial court’s dismissal of their wrongful death claim against the Department of Human Resources contending that the negligent supervision of their daughter by a foster parent was not a discretionary function of a state employee protected by the doctrine of sovereign immunity. See the Georgia Tort Claims Act (OCGA § 50-21-20 et seq.). For sovereign immunity purposes, the supervision of a child by a foster parent is a discretionary function as defined by the Georgia Tort Claims Act (the Act). We affirm.

“[A] motion to dismiss for failure to state a claim . . . should be granted only where a complaint shows with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proven in support of the claim.” (Punctuation omitted.) Dept. of Transp. v. Jackson, 229 Ga. App. 321, 322 (494 SE2d 20) (1997).

The relevant facts here are undisputed. Lisa Marie Wynn, the daughter of Donna Kay Brantley and Chris Wynn, was in the custody of the Department of Human Resources and had been placed in foster care. On July 18, 1996, one of her foster parents placed her in an inflatable tube in a pool in their backyard. The child slipped out of the tube and drowned. Brantley and Wynn instituted legal action under the Act against the Department of Human Resources, alleging that the Department of Human Resources is liable under the doctrine of respondeat superior for the negligence of the foster parent in the supervision and control of the child.

“As a general rule, damages are not recoverable against the State absent a waiver of sovereign immunity.” Jackson v. Dept. of Human Resources, 230 Ga. App. 595, 596 (497 SE2d 58) (1998). “The state [has waived] its sovereign immunity for the torts of state officers and employees while acting within the scope of their official duties or employment and [is] liable for such torts in the same manner as a private individual or entity would be liable under like circumstances . . . subject to all exceptions and limitations set forth in [the Act].” OCGA § 50-21-23.

Under one such exception, the state has not waived sovereign immunity for the “exercise or performance of or the failure to exercise or perform a discretionary function or duty on the part of a state officer or employee, whether or not the discretion involved is abused.” OCGA § 50-21-24 (2). Thus, the Act provides “immunity for the negligent performance of discretionary acts.” Northwest Ga. Regional Hosp. v. Wilkins, 220 Ga. App. 534, 537 (469 SE2d 786) (1996). The Act defines “discretionary function or duty” as “a function or duty requiring a state officer or employee to exercise his or her policy judgment in choosing among alternate courses of action based upon a consideration of social, political, or economic factors.” OCGA § 50-21-22. The sole issue on appeal is whether supervision of a foster child by a foster parent falls within the definition of “discretionary function” as defined in the Act such that the Department of Human Resources is protected from suit.

“We have . . . consistently held that the task of school officials to monitor, supervise, and control students is a discretionary action protected by the doctrine of official immunity.” (Punctuation omitted.) Payne v. Twiggs County School Dist., 232 Ga. App. 175, 177 (501 SE2d 550) (1998). See Dept. of Corrections v. Lamaine, 233 Ga. App. 271, 273 (502 SE2d 766) (1998) (‘We have consistently held that one who supervises or monitors another exercises discretion in so doing.”). Similarly, we now hold that the supervision of a foster child is a discretionary function of the foster parents employed by the Department of Human Resources. The role of a foster parent necessarily requires the exercise of discretion in the care of the children, including deciding how much supervision is adequate and where the foster parents’ attention should be directed at any particular moment. Pursuant to the discretionary function exception to the Act, sovereign immunity has not been waived.

Brantley and Wynn argue that supervision of the child was not a discretionary function as defined by the Act. They rely on Dept. of Transp. v. Brown, 267 Ga. 6 (471 SE2d 849) (1996), for the proposition that the discretionary function exception is limited to basic governmental policy decisions. In Brown, our Supreme Court held that the discretionary function exception to the Act did not apply to claims alleging negligence in the plan or design of roads. The Court found that the planning and design decisions by the DOT were not policy decisions which would entitle the DOT to immunity under the discretionary function exception to the Act.

Decided November 13, 1998

Reconsideration denied January 4, 1999

Westmoreland, Patterson & Moseley, Thomas H. Hinson II, for appellants.

Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, Senior Assistant Attorney General, Marla-Deen Brooks, Brenda A. Raspberry, Assistant Attorneys General, for appellee.

However, “[generally, the determination of whether an action is discretionary . . . depends on the character of the specific actions complained of, not the general nature of the job, and is to be made on a case-by-case basis. Wright v. Ashe, 220 Ga. App. 91, 93 (469 SE2d 268) [(1996)].” (Punctuation omitted.) Crisp County School System v. Brown, 226 Ga. App. 800, 803 (487 SE2d 512) (1997). Discretionary functions have been described as acts which require “the exercise of personal deliberation and judgment, entailing examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.” (Punctuation omitted.) Jackson v. Dept. of Human Resources, supra at 596. Accordingly, it has been held that a caseworker’s decision to place a child in a particular foster care setting involved the exercise of discretion and personal judgment such that the state was immune from liability arising out of that placement. Id. Similarly, the decision to discharge a patient from a mental health facility has been held to be a discretionary function. Wilkins, supra.

The specific act complained of here is not analogous to the act complained of in Dept. of Transp. v. Brown. Brantley and Wynn assert that “[t]he Department of Human Resources is liable for the child’s death because [the foster parent] was negligent in his supervision and control of the said child.” The facts of this case are more analogous to cases addressing the supervision of children by school officials than to the design and operation of roads addressed in Dept. of Transp. v. Brown, supra. See Payne, supra; Lamaine, supra. Therefore, the trial court did not err in determining that the supervision of the child was a discretionary function protected by the doctrine of sovereign immunity.

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.


author: Eldridge, Judge.

text:
    A99A0088.
    ROTH et al. v. CONNOR et al.
    (510 SE2d 550)
   Eldridge, Judge.

On May 30, 1995, Connor Construction & Manufacturing Company, Inc., defendant-appellee, conveyed by warranty deed, executed by John Connor as president, to James B. and Andrea M. Roth, plaintiffs-appellants, Lot 2 of the Rainbow Mountain Subdivision, which had a new octagonal 1,600-square-foot living space cabin on it. Attached to the warranty deed were certain easements and restrictive covenants. Nowhere in either the warranty deed or the easements and restrictive covenants was it stated that the restrictive covenants were filed of record in the deed records of the Clerk of the Superior Court for Gilmer County or in the Gilmer County Planning Office. In fact, there was no such filing. Further, the sales contracts made no reference to any restrictive covenants.

However, plaintiffs contended that, in the sales promotion, John Connor had represented to them that restrictive covenants required a minimum 1,600 square feet of living space applied to all houses in the Rainbow Mountain Subdivision and did not disclose that such restrictive covenants applied only to Phase I and not to Phase II of the subdivision. Subsequently, plaintiffs discovered houses near their lot which appeared to be less than 1,600 square feet of living space.

On July 8, 1996, plaintiffs sued the defendants in four counts. The defendants timely answered separately. On November 21, 1997, defendants moved for summary judgment. On November 21, 1997, the defendants filed in support of such motion the affidavit of John Connor; a portion of what appeared to be a deposition; and copies of the contracts, warranty deed, and covenants. Plaintiffs in opposition to the motion filed a number of affidavits. The Gilmer County Land Development Ordinance as amended was tendered, but it was neither a certified copy nor accompanied by an appropriate affidavit authenticating it as an ordinance duly enacted by the Commissioners of Gilmer County in order to satisfy OCGA § 9-11-56 (e).

On March 16, 1998, the trial court entered summary judgment for the defendants against the plaintiffs. Plaintiffs timely filed their notice of appeal.

1. Plaintiffs’ first enumeration of error is that the “trial court committed harmful reversible error in deciding whether the restrictive covenants applied to all of Rainbow Mountain Subdivision or just to Phase I of Rainbow Mountain.” We do not agree.

(a) This case differs from most restrictive covenant cases in that the grantor created restrictive covenants by deed only as to the square footage of living area in construction of residential dwellings in some lots sold, but not as to a reserved separate tract in the Rainbow Mountain Subdivision that he later conveyed as lots with a different restrictive covenant as to the square footage of living space construction. Here, the plaintiff-grantees in Phase I of the subdivision sued to enforce and impose the same building restriction applicable to their lot to lots sold by the grantor of retained land under Phase II, which had a different construction limitation. In this case, there was no recorded subdivision plat for the entire tracts of Phases I and II of Rainbow Mountain with the restrictive covenant requiring 1,600 square feet of living space, nor were the restrictive covenants separately recorded as to the entire subdivision or incorporated by reference into a recorded deed to the entire subdivision. In fact, no subdivision plat containing restrictive covenants applicable to the entire Phase I was made part of the record. See Southeast Toyota Distrib. v. Fellton, 212 Ga. App. 23, 25-26 (1), (2) (440 SE2d 708) (1994). The restrictive covenants were attached to individual warranty deeds so that only those lots were subject to the restrictive covenants.

Limitations and restrictions on the use of one’s own land will not be enlarged or extended by judicial construction of the covenant and will be construed in favor of the owner of the land sought to be restricted. The grounds for such interference by the superior court must be based upon evidence which is clear and beyond reasonable doubt of the existence, application, and intent of express restrictive covenants. England v. Atkinson, 196 Ga. 181, 184-185 (1) (26 SE2d 431) (1943); King v. Baker, 214 Ga. App. 229, 235 (5) (447 SE2d 129) (1994). Restriction on the use of land must be clearly established, not only as to the restrictions, but also as to the land restricted, and restrictions will be strictly construed. Williams v. Waldrop, 216 Ga. 623, 624 (1) (118 SE2d 465) (1961); Spencer v. Poole, 207 Ga. 155 (60 SE2d 371) (1950).

“This manifest intent being the cardinal rule of construction will control over the above mentioned rule of strict construction against restrictions. If the intent is plainly manifest no ambiguity exists, and it is only in cases of ambiguity that the rule of strict construction applies.” Voyles v. Knight, 220 Ga. 305, 306 (2) (138 SE2d 565) (1964). ‘Where a restrictive covenant in a deed is involved, the legal presumption is in favor of the free use of the property by its owner, and any doubt will be construed in favor of the [owner]. [Cit.]” Burch v. Ragan, 92 Ga. App. 605, 609 (2) (89 SE2d 541) (1955); see also England v. Atkinson, supra. Where the land, use, and scope of the restrictions are unclear, such ambiguity requires strict construction.

“An owner of a tract of land may agree with purchasers of portions of the tract to restrict the entire tract to residential [construction of 1,600 square feet of living space] in order to increase the marketability of the land. Parties most often assure enforcement of such an agreement by reducing the specific restrictions on the land to writing, specifying the property restricted, and then recording the restrictions and the property description with the proper authorities.” Knotts Landing Corp. v. Lathem, 256 Ga. 321, 322-323 (2) (348 SE2d 651) (1986). However, this was not done in this case. Each grantee in Phase I received a warranty deed that attached and incorporated easements and restrictive covenants that bound only such lot for the benefit of the grantor and others who took from the common grantor. In short, defendants, as grantors, could impose restrictive covenants that apply to Phase I, but by reservation, would not apply to Phase II, and the grantor may still enforce the covenants as to Phase I only.

“While the general rule is that the owner of land in fee has a right to use it for any lawful purposes, and any claim that there are restrictions upon such use must be clearly established, the owner of the fee has the right to sell his land subject to such reservations or restrictions as he may see fit to impose, provided they are not contrary to public policy, and such reservations or restrictions create an easement, or servitude in the nature of an easement, upon the land conveyed for the benefit of the adjoining property of which the grantor remains the owner, and a grantee and a remote grantee from the former owner who imposes the restriction are entitled to the same remedy for its enforcement as was their grantor. The fact that other or different restrictions were incorporated in the plaintiffs’ deeds, or that their lot[ ] might not be subject to the same restrictions as the defendants’ [Phase II] lot, would not deprive [defendants] of the right to enforce the restriction placed upon the [plaintiffs’] lot by the [defendants as] common grantor of both the plaintiffs and the defendants’ grantees of Phase II].” (Citations omitted.) Grove Lakes Subdivision v. Hollingsworth, 218 Ga. 443, 444-445 (128 SE2d 499) (1962). See also Cawthon v. Anderson, 211 Ga. 77, 78 (1) (84 SE2d 66) (1954); Spencer v. Poole, supra at 156 (1). Thus, no express restrictive covenant for Phase I as to construction existed that imposed a square footage limitation of 1,600 square feet of liveable area as to Phase II of Rainbow Mountain Subdivision.

(b) While no express restrictive covenant as to Rainbow Mountain Subdivision was created by recording either a plat with restrictive covenants or unrecorded restrictive covenants as to the entire subdivision, each lot in Phase I had restrictive covenants attached to the warranty deeds, so that Phase I was subject to the same restrictive covenants. Such subdivision developmental scheme may have created an implied restrictive covenant for Phase II as well. Limitations or restrictions by implication on use of land are not favored and must be strictly construed against restrictions. See Sissel v. Smith, 242 Ga. 595, 596 (2) (250 SE2d 463) (1978); see also Randall v. Atlanta Advertising Svc., 159 Ga. 217 (125 SE 462) (1924).

“Where the owner of land adopts a general scheme of dividing his land into lots for the purpose of selling them under express restrictions without reservations or limitations as to the use of the lots, and the restrictive covenants are for the benefit of the land retained, such a covenant as well as the lots sold mutually applies to all parties inter sese. However, where the owner subdivides his land into lots, and the restrictions imposed by him on the use of the lots are limited only to those lots where the deeds to purchasers specifically incorporate the restrictions, and are not expressly made applicable to all lands in the subdivision, to be sold or retained, such restrictions would apply to the unsold lots of the owner only by implication. In such a situation the restrictive clause must be construed in the light of the other facts of the record and intention of the parties. Limitations or restrictions as to the use of property by the owner are not favored and must be strictly construed. [Cits.]” Williams v. Waldrop, supra at 624 (1).

“When a grantee accepts a deed he will be bound by the covenants contained therein, although the deed has not been signed by him. In such a case, the general scheme binds all the purchasers inter sese, not only as to the restrictions embodied in their respective deeds, but also as to such inhibitions as were embraced within the general scheme of the subdivision, of which they had or were chargeable with notice.” (Citations and punctuation omitted.) Antill v. Sigman, 240 Ga. 511, 512 (1) (241 SE2d 254) (1978).

“Parties may also take actions from which courts will imply an agreement to restrict the uses allowed upon a tract of land. The party wishing to enforce a non-express agreement must, of course, establish the area covered by the agreement and the specific content of the restrictions alleged. This is usually accomplished by showing a common grantor’s general scheme or plan for developing the property in question. See Westhampton, Inc. v. Kehoe, 227 Ga. 642 (182 SE2d 430) (1971).” Knotts Landing Corp. v. Lathem, supra at 323.

“A general building scheme and development plan in a subdivision for the purpose of selling lots under the restrictions is binding and enforceable, though not embraced in the deeds. Restrictions under a general plan adopted by an owner to sell lots may, in equity, be imposed on lands beyond the express restrictions contained in deeds on the theory of implied covenants. Where a general scheme of development exists, the grantees of lots subject thereto may enforce the restrictions against each other, although such restrictions are not embraced in the defendant’s conveyance, where the owner sought to be subjected to the restrictions purchased with notice thereof. [Cits.]” Westhampton, Inc. v. Kehoe, supra at 645-646; see also Knotts Landing Corp. v. Lathem, supra; McLean v. Turtle Cove Property Assn., 222 Ga. App. 709 (475 SE2d 718) (1996).

However, in such cases, there existed recorded subdivision plats and restrictive covenants that indicated therein that future phases would also come within the restrictions, so that reasonable notice was afforded as a matter of public record to any prospective purchaser that they also would be bound by the same restrictions. Such implied covenants did not apply to the original grantor regarding land reserved from the covenants and not intended by him to be subject to the restrictions.

Limitations on use of land by implication are not favored and must be strictly construed against the person seeking the restriction. Taylor v. Smith, 221 Ga. 55 (142 SE2d 918) (1965); David v. Bowen, 191 Ga. 467 (12 SE2d 873) (1941); Thompson v. Glenwood Community Club, 191 Ga. 196 (12 SE2d 623) (1940). The standard of proof of a restrictive covenant by implication is only “evidence that is clear and beyond a reasonable doubt.” McKee v. Hubert, 211 Ga. 329 (85 SE2d 757) (1955); see also Wiggins v. Young, 206 Ga. 440 (57 SE2d 486) (1950). Such implied covenants arise from proof of an actual preexisting plat and recorded subdivision restrictions, because the act of making and formulating a set of restrictions is deemed to be intended by the developer to apply to all lots alike. Kilby v. Sawtell, 203 Ga. 256 (46 SE2d 117) (1948). Therefore, anything that is evidence of a contrary intent of the subdivider not to have the subdivision restrictions apply to other phases of the subdivision will defeat the enforcement of restrictions by implication, because the implication cannot be proved clearly and beyond a reasonable doubt. Reid v. Standard Oil Co. of Ky., 107 Ga. App. 497 (130 SE2d 777) (1963).

Therefore, the intentional failure to file the subdivision plat and restrictive covenants of record as to Phase I or to apply them to the entire Rainbow Mountain Subdivision, the use of restrictive covenants only in each individual deed, and the development in two phases with different restrictions by the defendant-grantor prevent plaintiffs from legally being able to prove that the restrictive covenants of Phase I apply to Phase II by clear evidence and by a standard of proof beyond a reasonable doubt.

“The owner thereby reserved the right to sell lots and make deeds not specifically incorporating the covenant thereto. Since it clearly appears that it was the intent of the defendant that the restrictions would apply only where there was a sale of a lot and the restrictions were specifically incorporated in the deed to the purchaser, he impliedly retained the right to use the unsold lots for purposes other than [under the construction restriction].” Williams v. Waldrop, supra at 625. Thus, the trial court did not err in granting summary judgment.

2. Plaintiffs’ enumerations of error 2 through 5 and 8 are controlled adversely to the plaintiffs by Division 1, finding that summary judgment was properly granted as to the restrictive covenant as to the minimum size of residential construction.

3. Plaintiffs’ sixth enumeration of error is that the “trial court committed harmful reversible error in granting summary judgment against the appellants on their allegations of fraud and deceit and ignoring the fact that fraud produces damages.” We do not agree.

Restrictive covenants and subdivision plats may be independently recorded and filed of record, either with the clerk of the superior court as part of the deed records, or the county planning office; such recorded restrictions provide constructive knowledge thereof. See Hendley v. Overstreet, 253 Ga. 136, 137 (318 SE2d 54) (1984); see also Kole v. Linkenhoker, 259 Ga. 82, 84 (377 SE2d 671) (1989). The presence of the recordation of such restrictive covenants would provide constructive notice of the existence of such covenants. See King v. Baker, supra at 232 (3); Southeast Toyota Distrib. v. Fellton, supra at 26. “It is presumed that a purchaser has examined every deed and instrument affecting the title. He is charged with notice of every fact shown by the records, and is presumed to know every other fact which an examination suggested by the records would have disclosed.” (Citations and punctuation omitted.) Hardage v. Lewis, 199 Ga. App. 632, 633 (405 SE2d 732) (1991); see also Southeast Toyota Distrib. v. Fellton, supra at 26. “A purchaser of land is conclusively charged with notice of restrictive covenants contained in a deed which constitutes one of his muniments of his own title[.] [Cit.]” King v. Baker, supra at 232 (3).

Plaintiffs’ deed makes no reference to either a recorded or unrecorded subdivision plat for Rainbow Mountain or either Phase I or II. The restrictive covenant attached to the deed applied only to the lot conveyed and made no reference to application to other lots. However, the restrictive covenants were captioned “RESTRICTIVE COVENANTS FOR RAINBOW MOUNTAIN,” which could imply broader application. However, an examination of the recorded deeds, plats, and restrictive covenants in the deed records or the subdivision plans filed with the planning office as part of any title search would reveal the absence of such restrictive covenants applying to the entire Rainbow Mountain Subdivision or even of record as to Phase I. Plaintiffs failed to exercise due diligence to determine if the restrictive covenants were of record prior to purchase, so that any action for fraud fails. Longino v. Bank of Ellijay, 228 Ga. App. 37, 39 (1) (491 SE2d 81) (1997); First Union Nat. Bank v. Gurley, 208 Ga. App. 647, 649 (431 SE2d 379) (1993); Zeeman v. Black, 156 Ga. App. 82, 87-88 (273 SE2d 910) (1980).

Decided December 10, 1998

Reconsideration denied January 4, 1999

Ray & McKinney, Robert M. Ray, Jr., Michael K. McKinney, for appellants.

Clifford S. Lancey, for appellees.

4. The plaintiffs’ seventh enumeration of error is that the “trial court committed reversible error by granting summary judgment against the plaintiffs’ Racketeer Influenced and Corrupt Organizations claim.” We do not agree.

In neither the complaint nor the evidence in opposition to the motion for summary judgment did the plaintiffs produce evidence raising the issue that defendants “have committed two or more predicate criminal acts which have resulted in injury to the plaintiffs,” as required by the RICO statute. OCGA §§ 16-14-3 (9) (A); 16-14-4; Dee v. Sweet, 268 Ga. 346, 349 (1) (489 SE2d 823) (1997); see also Maddox v. Southern Engineering Co., 231 Ga. App. 802, 804 (1) (500 SE2d 591) (1998); Security Life Ins. Co. v. Clark, 229 Ga. App. 593, 598-602 (1) (494 SE2d 388) (1997); Longino v. Bank of Ellijay, supra at 40-41 (2). The two predicate acts relied upon must be indictable under state or federal law and come within one of the categories allowing a RICO action. See OCGA § 16-14-3 (9) (A) (i) through (xxxii), (B); Mullen v. Nezhat, 223 Ga. App. 278 (477 SE2d 417) (1996); Sevcech v. Ingles Mkts., 222 Ga. App. 221 (474 SE2d 4) (1996); Raines v. State, 219 Ga. App. 893 (467 SE2d 217) (1996); Avery v. Chrysler Motor Corp., 214 Ga. App. 602 (1) (448 SE2d 737) (1994); Waldschmidt v. Crosa, 177 Ga. App. 707, 710 (340 SE2d 664) (1986). Plaintiffs neither identified two criminal acts nor submitted evidence in opposition to the motion for summary judgment that would raise a material issue of fact regarding whether such acts occurred. Therefore, the grant of summary judgment was proper. See OCGA § 9-11-56 (e); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    A98A2096.
    PACE v. THE STATE.
    (510 SE2d 617)
   McMurray, Presiding Judge.

Defendant Pace appeals his conviction of theft by taking. The sole enumeration of error questions the sufficiency of the evidence to authorize the conviction. Held:

Decided January 5, 1999.

Gayle D. Bacon, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Robert W. Houman, Noah H. Pines, Assistant District Attorneys, for appellee.

On August 7, 1996, defendant aroused the suspicions of two salespersons working in the fine jewelry department of a department store. One of the salespersons contacted security, and defendant was observed and videotaped by a security officer.

Two days later, defendant returned to the department store, where his presence aroused the concern of the same two salespersons who again notified security. Even as one of the salespersons was talking to security on the telephone, the two salespersons observed defendant pick up an entire jewelry display carousel and leave the store with it. A department store sales manager testified that the jewelry carousel contained approximately 100 pieces of jewelry, 14-carat gold necklaces and earrings, with á total value of around $10,000.

While defendant attacks the credibility of the identification witnesses, determination of a witness’ credibility, including the accuracy of identification testimony, is within the exclusive province of the jury. Moore v. State, 268 Ga. 420, 421 (1) (489 SE2d 842); Norris v. State, 258 Ga. 889, 890 (1) (376 SE2d 653); Price v. State, 223 Ga. App. 807, 810 (4) (478 SE2d 915); Hopkins v. State, 222 Ga. App. 157 (473 SE2d 267). Also, there was sufficient evidence of value to support the felony sentencing of defendant. Moncus v. State, 229 Ga. App. 803, 804 (1) (a) (495 SE2d 118). The evidence was sufficient to authorize a rational trier to find defendant guilty beyond a reasonable doubt of the offense of theft by taking and to authorize the felony sentencing. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Moncus v. State, 229 Ga. App. 803, 804-805 (1), supra.

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.


text:
    A98A2288.
    MILLS v. BERLEX LABORATORIES, INC.
    (510 SE2d 621)
   McMurray, Presiding Judge.

William Mills sued his former employer, Berlex Laboratories, Inc. (“Berlex”), alleging it wrongfully refused to provide him with short-term disability benefits after the termination of his employment. Berlex defended the suit by asserting Mills’ claim was barred by a Separation Agreement and General Release. Following a bench trial, the trial court concluded the release prohibited Mills’ lawsuit and found in favor of Berlex. The evidence at trial revealed the following:

On February 15,1995, Berlex informed Mills that his position as a pharmaceutical sales representative was being eliminated and that he would be terminated effective February 28, 1995. In this same meeting, Berlex’s representatives gave Mills a proposed Separation Agreement and General Release and advised him to consult with an attorney before signing it.

While boxing up Berlex supplies located in his home office at the request of Berlex, Mills injured his back. During the week of February 20, 1995, Mills experienced back spasms and requested a short-term disability form from Toni Dolecki in Berlex’s Human Resources Department. On February 22, 1995, Dolecki sent Mills a memo outlining the procedures for making a claim for short-term disability benefits. She also enclosed a short-term disability claim form which needed to be completed by Mills’ physician and instructed Mills to return it immediately. Mills’ physician examined him on February 28, 1995, and completed the disability form. This form was mailed to Dolecki by Mills’ attorney, Samuel Cruse, on March 3, 1995. At trial, a Berlex representative testified that Mills’ benefits file did not include this form or any claim for short-term disability benefits.

After retaining Cruse to review the release and negotiate with Berlex on his behalf, Mills signed a revised Separation Agreement and General Release in Cruse’s office. This release provides: “Employee agrees that other than as specifically set forth in this Separation Agreement, he is not due any compensation . . . and as of the day following the Termination Date [February 28, 1995], he will not be eligible to participate in any of Berlex’s benefits plans, including without limitation, the retirement, employee savings and bonus plans. Notwithstanding the foregoing, employee shall retain such rights as are provided to former employees in the Berlex Retirement Income Plan and Berlex Retirement Savings Plan.”

This release further provides: “As a material inducement to enter into this Separation Agreement, Employee knowingly and voluntarily releases, acquits and forever discharges Berlex and its Related Persons from any and all charges, complaints, claims, liabilities, obligations, promises, agreements, controversies, damages, actions, causes of action, suits, rights, demands, costs, losses, debts, and expenses of any nature whatsoever, known or unknown, suspected or unsuspected, foreseen or unforeseen, matured or unmatured, which from the beginning of the world up to and including the Termination Date, exist, have existed, or may arise from any matter whatsoever occurring, including, but not limited to, any claims arising out of or in any way related to Employee’s employment with Berlex and the conclusion thereof, which Employee . . . ever had, now has or at any time hereafter may have, own or hold against Berlex or its Related Persons. By executing this Separation Agreement, employee is waiving all claims against Berlex and its Related Persons arising under common law, any federal, state or local laws of any state. . . .” (Emphasis supplied.)

In exchange for these promises by Mills, Berlex agreed to pay and did pay Mills the equivalent of one year’s salary as severance pay, paid in semi-monthly installments, a $5,388 bonus and five days vacation pay. Berlex also paid Mills’ COBRA payments and provided him with unlimited outplacement services for a one-year period.

On June 6, 1996, Mills filed this action against Berlex and sought short-term disability benefits. Held:

“In a bench trial the judge sits as trier of fact, and his findings are analogous to the verdict of a jury. As we have observed, they should not be disturbed if there is any evidence to support them. We do not, on appeal, blindly accept the evidence of any party to the litigation or determine the merits of the case from a point of advocacy. Rather we follow the rule that where the trial court finds the facts and enters judgment thereon, the sole question for determination is whether there is any evidence to authorize that judgment. All-Phase Elec. &c. Co. v. Transamerican Ins. Co., 162 Ga. App. 104, 105 (290 SE2d 208) (1982); Exxon Corp. v. Butler, 173 Ga. App. 146, 147 (325 SE2d 806) (1984), cert, denied. It is our duty to construe the evidence to uphold the judgment rather than upsetting it. Even though the findings of fact and conclusions of law contended by an appellant may have been, in whole or in part, authorized by the evidence presented at trial, yet, where the facts found by the trial court were authorized by the evidence, such findings will not be set aside. In the absence of legal error, an appellate court is without jurisdiction to interfere with the judgment supported by some evidence. Id.” Alonso v. Hosp. Auth. of Henry County, 175 Ga. App. 198, 203 (7) (332 SE2d 884).

Mills contends the trial court erred when it found his civil action was barred because the parties did not contemplate that Berlex would deny his short-term disability claim at the time they entered into the general release. Under New Jersey law, “[t]he scope of a release is determined by the intention of the parties as expressed in the terms of the particular instrument, considered in the light of all the facts and circumstances. A general release, not restricted by its terms to particular claims or demands, ordinarily covers all claims and demands due at the time of its execution and within the contemplation of the parties. [Cits.]” Bilotti v. Accurate Forming Corp., 188 A2d 24, 35 (N. J. 1963).

Decided January 5, 1999.

Samuel W. Cruse, for appellant.

Constangy, Brooks & Smith, Kelly J. Beard, for appellee.

We find the evidence authorized the trial court’s conclusion that Mills’ claim for short-term disability benefits fell within the scope of the release. By its terms, the release applies to all claims “arising out of or in any way related to [Mills’] employment with Berlex and the conclusion thereof. . . .” It also specifically provided that Mills “will not be eligible to participate in any of Berlex’s benefit plans” as of the day following his termination date (February 28, 1995). This language is sufficient to include Mills’ claim for short-term disability benefits.

Mills’ contention that the parties did not contemplate a release of his claim for short-term disability benefits when they entered into the general release is without merit. Mills retained counsel to review the release, and the record shows that both Mills and his attorney were aware of his short-term disability claim before Mills signed the Separation Agreement and General Release. These “facts and circumstances,” taken together with the plain language of the release, support the conclusion that Mills’ short-term disability claim was “within the contemplation of the parties” at the time they entered into the release. Bilotti v. Accurate Forming Corp., 188 A2d 24, 35, supra.

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.

       The release provides that it “will be governed by and construed under the laws of the State of New Jersey.” In the absence of contrary public policy, our courts normally will enforce a contractual choice of law provision, Carr v. Kupfer, 250 Ga. 106, 107 (1) (296 SE2d 560), as the parties by contract may stipulate that the laws of smother jurisdiction will govern the transaction. Wallace v. Harrison, 166 Ga. App. 461, 462-463 (1) (304 SE2d 487). A choice of law provision in a contract does not, however, govern the procedural law applied in the forum state. See Lloyd v. Prudential Securities, 211 Ga. App. 247, 248 (1) (438 SE2d 703).


text:
    A98A2294.
    WILLIAMS v. THE STATE.
    (510 SE2d 848)
   McMurray, Presiding Judge.

Defendant appeals the trial court’s sentencing him as a recidivist under OCGA § 17-10-7 because there was no admissible evidence in the record to support the trial court’s finding that he had “six (6) prior felony convictions, imposed on three (3) separate occasions.” In its brief, the State agrees that “[t]he sentence as imposed is not supported by the record.” Held:

Decided January 5, 1999.

June E. Fogle, for appellant.

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

The trial court erred in considering the prior convictions which were not supported by admissible evidence when sentencing the defendant as a recidivist. Ramsey v. State, 218 Ga. App. 692, 693 (4) (462 SE2d 806). The judgment as to defendant’s sentence is vacated, and the case is remanded to the trial court for resentencing.

Judgment vacated as to sentence and case remanded.

Blackburn and Eldridge, JJ., concur.


text:
    A98A2471.
    EVANS v. THE STATE.
    (510 SE2d 619)
   McMurray, Presiding Judge.

Defendant, acting pro se, was tried before the trial court and found guilty of disregarding a stop sign in violation of OCGA § 40-6-72 (b). Defendant, acting pro se, filed this appeal after the court’s entry of its judgment of her conviction and sentence. Held:

1. The State moves to dismiss defendant’s appeal for lack of jurisdiction, asserting that defendant “tried to file her appeal on time but did so in the wrong court. . . .”

The record shows that the judgment of defendant’s conviction and sentence was entered in the State Court of Cobb County, Georgia, on June 11, 1998, and that defendant’s notice of appeal from this judgment was filed less than 30 days later in the State Court of Cobb County on June 30, 1998. Although defendant’s notice of appeal designates the wrong appellate court, this error provides no basis for dismissing defendant’s appeal. OCGA § 5-6-37 provides that an appeal shall not be dismissed “because of failure to include the jurisdictional statement or because of a designation of the wrong appellate court.” Accordingly, the State’s motion to dismiss this appeal is hereby denied.

2. Defendant appears to challenge the sufficiency of the evidence in her second and third enumerations of error, arguing that the stop sign she allegedly disregarded was obscured by a tree limb and that the officer who issued her a uniform traffic citation gave inconsistent testimony regarding defendant’s on-the-scene statements.

The weight of evidence and credibility of witnesses are matters for the factfinder’s determination, not an appellate court. This Court is concerned only with the sufficiency of the evidence. OCGA § 24-9-80; Walls v. State, 233 Ga. App. 601, 604 (4) (504 SE2d 471). In the case sub judice, the officer who issued defendant a uniform traffic citation for running a stop sign testified that he observed defendant run a stop sign that was “clearly visible” to oncoming traffic. This testimony is sufficient to authorize the trial court’s finding that defendant is guilty, beyond a reasonable doubt, of disregarding a stop sign in violation of OCGA § 40-6-72 (b). Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Decided January 5, 1999.

Valdora W. Evans, pro se.

Barry E. Morgan, Solicitor, Jessica K. Moss, Leann M. MacDougall, Ferdinand M. Viscuse, Assistant Solicitors, for appellee.

3. Defendant contends the officer who issued her a uniform traffic citation “was inappropriate on his approach to [her] car in leaning on the car window.” Defendant, however, fails to show, and we cannot perceive, how she was harmed by this alleged error. “Harm as well as error must be shown to warrant a reversal. See Greer v. State, 201 Ga. App. 775, 776 (2) (412 SE2d 843) (1991).” Bass v. State, 208 Ga. App. 859, 861 (3) (432 SE2d 602).

4. Defendant contends in her first enumeration of error that she did not raise objections at trial because the trial court did not inform her that “she had a ‘right to object’ at trial. . . .” This assertion provides no basis for reversal because, assuming (without deciding) that the trial court did not adequately inform defendant of the hazards of proceeding pro se, defendant fails to show how she was harmed by this alleged error. Defendant’s failure to object at trial has not foreclosed this Court’s review of any issue defendant raises in the case sub judice. Accordingly, defendant’s first enumeration of error provides no basis for reversal. See Bass v. State, 208 Ga. App. 859, 861 (3), supra.

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.


author: Beasley, Judge.

text:
    A98A2190.
    GUTIERREZ v. THE STATE.
    (510 SE2d 570)
   Beasley, Judge.

A jury found Jose Gutierrez guilty of the following offenses arising out of his driving a car into a police officer at a roadblock and driving away: aggravated assault on a peace officer (OCGA § 16-5-21 (c)); felony obstruction of an officer (OCGA § 16-10-24 (b)); hit and run with serious injury (OCGA § 40-6-270 (b)); misdemeanor obstruction of officer (giving false social security number) (OCGA § 16-10-24 (a)); giving false date of birth (OCGA § 16-10-25); fleeing or attempting to elude (OCGA § 40-6-395 (a)); driving without a license (OCGA § 40-5-20 (a)); driving with no seat belt (OCGA § 40-8-76.1 (b)); and driving with improper equipment (OCGA § 40-8-73 (e)). The court merged the felony obstruction with the aggravated assault.

Four errors are enumerated: (i) denying a mistrial when the prosecutor asked a question indicating the court had initially denied Gutierrez bond because he was a risk to flee; (ii) entering judgment on mutually exclusive verdicts; (iii) denying a directed verdict on aggravated assault; and (iv) failing to charge felony obstruction and misdemeanor obstruction as lesser included offenses of aggravated assault.

1. During direct examination Gutierrez admitted fleeing the jurisdiction while on bond to escape prosecution. On cross-examination, the State asked about an earlier attempt to obtain bond and continued: “Q. And your bond was denied at that time, was it not? A. Yes, it was. Q. And the judge, considering that, issued an order finding that you were a risk to flee the —.” Defendant interrupted with an objection based on relevancy and a motion for mistrial. The court sustained the objection, denied the motion, and instructed the jury that any testimony suggesting that defendant had no bond was improper to consider and must be disregarded in its entirety. The court assured itself that the jury understood and announced “they could disregard that and would.” The court further “strongly emphasize[d]” that anything the attorneys said in questions was not to be considered as evidence and that it came only from witnesses. A renewed motion for mistrial was denied.

Gutierrez insists that a mistrial was required on the ground that the State had intimated the court’s opinion that Gutierrez was a risk to flee because he was guilty. He invokes both OCGA §§ 17-8-57 and 17-8-75.

OCGA § 17-8-57 provides: “It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused. Should any judge violate this Code section, the violation shall be held by the Supreme Court or Court of Appeals to be error and the decision in the case reversed, and a new trial granted in the court below with such directions as the Supreme Court or Court of Appeals may lawfully give.” No incursion of this strict rule transpired. Not only did the court intimate no opinion whatsoever, it assured an elimination from jury consideration of the whole subject of no bond and not merely what might have prompted a judge to deny it.

Furthermore, “[r]emarks of a judge assigning a reason for his ruling are neither an expression of opinion nor a comment on the evidence. [Cits.]” Judicial comments regarding what has been proven in the trial, referencing a guilty plea by a co-defendant, referring to defense testimony as hearsay, or stating that the judge did not think an officer was required to break off a chase of the defendant, were all permissible as explanations of the grounds for a ruling.

What is more, the court in its final charge to the jury emphasized that “by no ruling or comment that I have made during the course of the trial have I intended to make any comment whatsoever upon the trial of this case, to express an opinion upon the facts in the case, upon the credibility of the witnesses, upon the evidence or upon the guilt or innocence of Mr. Gutierrez.”

OCGA § 17-8-75 provides: “Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same. On objection made, the court shall also rebuke the counsel and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds; or, in his discretion, he may order a mistrial if the prosecuting attorney is the offender.”

Clearly this statute was obeyed. The irrelevant and prejudicial information inferable from the State’s question was jettisoned, and the jury was immediately instructed that a question does not constitute evidence.

To the extent the State’s question was improper, the court’s instructions sufficed to cure any evil.

2. Mutually exclusive jury verdicts of guilt cannot stand. Mutual exclusion means that a finding of guilt on the essential elements of one count by definition excludes a finding of guilt based on an essential element of another count. For example, a defendant cannot be convicted of robbery of a vehicle and theft by receiving the same vehicle, for an essential element of the crime of theft by receiving is that the goods were stolen by some person other than the accused.

. Gutierrez claims that the aggravated assault and hit-and-run convictions are mutually exclusive because the aggravated assault conviction had to include a finding that he intentionally struck the officer with his vehicle, whereas the hit-and-run conviction had to include a finding that striking the officer was unintended, an “accident.”

Gutierrez misapprehends the elements of the crime of hit-and-run. “The driver of any vehicle involved in an accident resulting in injury to or the death of any person . . . shall immediately stop such vehicle at the scene of the accident” and give certain information and render assistance. “If such accident is the proximate cause of. . .a serious injury, any person knowingly failing to stop . . . shall be guilty of a felony. . . .” The word “accident” as used in this statute does not require that the act causing the injury be mere negligence or mishap. The word is used broadly to include any incident where injury or death follows. The focus is on the person whose well-being is compromised by the action of a vehicle. Stopping is required regardless of the intent of the driver in causing the harm. Otherwise a person could by design maim another person with a car and drive off, without fear of violating this statute.

“The word ‘accident,’ requiring operator of vehicle to stop immediately in case of accident, contemplates any situation occurring on the highway wherein he so operates his automobile as to cause injury to the property or person of another using the same highway.” “Hit and run accident” is defined as a “[c]ollision generally between motor vehicle and pedestrian or with another vehicle in which the operator of vehicle leaves scene without identifying himself.” Whether the collision was intended or not is not an element of the crime.

Accordingly, aggravated assault with a motor vehicle and hit- and-run with that same vehicle are not mutually exclusive crimes. Duality is not an impossibility.

3. Gutierrez contends he was entitled to a directed verdict on the aggravated assault count for two reasons: (i) the State did not prove his assault with the vehicle was likely to and actually did result in serious bodily injury, as alleged, and (ii) the State did not prove the officer’s torso was injured, again as alleged.

The indictment alleges Gutierrez committed an assault upon the officer “with a 1991 Mercury Cougar, a deadly weapon and an object, device and instrument which when used offensively against a person is likely to and actually did result in serious bodily injury, by hitting and striking the said [officer] on and about the torso and legs with said 1991 Mercury Cougar. . . .” Gutierrez concedes the evidence showed that his striking the officer with the car was likely to cause serious bodily injury; he disputes that the officer’s actual injuries rise to that level.

Despite the conjunctive wording of the indictment, the aggravated assault statute requires only that one or the other be shown, so a showing that Gutierrez’s assault with the vehicle was likely to cause such injury sufficed. “When a defendant is charged with the violation of a penal statute containing disjunctively several ways or methods a crime may be committed, proof of any one of which is sufficient to constitute the crime, the indictment, in order to be good as against a special demurrer, must charge such ways or methods conjunctively if it charges more than one of them. Accordingly, on the trial of a defendant under an indictment so charging, it is not incumbent upon the State to prove all of such separate ways or methods alleged in the indictment, but the State makes a prima facie case upon its establishment by proof of any one of them.”

Gutierrez’s second point also fails. The indictment alleged that the vehicle struck the officer “on or about the torso and legs”; it did not allege that his torso and legs were seriously injured. Because the evidence showed the vehicle impacted the officer’s torso and legs, there was no variance between the allegations and the proof. Gutierrez’s argument that the torso was not injured is beside the point.

4. The final alleged error is the court’s failure to give Gutierrez’s jury charges of felony obstruction and misdemeanor obstruction as lesser included offenses of aggravated assault. “A written request to charge a lesser included offense must always be given if there is any evidence that the defendant is guilty of the lesser included offense.”

Decided December 14, 1998

Reconsideration denied January 6, 1999.

H. Bradford Morris, Jr., for appellant. Lydia J. Sartain, District Attorney, Lee Darragh, Assistant District Attorney, for appellee.

Gutierrez contends that if the jury found (as he testified) that he did not intend to hit the officer, then it could have simply convicted him of obstructing an officer at either the level of misdemeanor (no violence) or felony (offering or doing violence). But Gutierrez expressly waived the giving of the felony obstruction charge as a lesser included charge of aggravated assault when the court stated it would merge the aggravated assault count and separate felony obstruction count if a guilty verdict were returned on both. When such verdict was delivered, the court did exactly what it said it would do.

Further, the court was not required to give the misdemeanor obstruction charge as a lesser included offense of aggravated assault. The charge submitted by Gutierrez was nothing more than OCGA § 16-10-24 (a). It applied to the separate count of misdemeanor obstruction for giving a false social security number and was not tailored to serve as a lesser included charge on the aggravated assault count. Where the submitted request on a lesser included offense may be applicable to facts unrelated to the specific, greater offense for which the charge was submitted, the charge will not be given as a lesser offense lest it confound and mislead. “[T]he lesser included charge must be accurately tailored to the greater offense for which it is submitted in order to avoid confusion and the possibility of an erroneous conviction in an unintended manner.”

Moreover, the misdemeanor obstruction charge was given as a lesser included offense under the felony obstruction count, which merged into the aggravated assault count. It was not error to reject the requested charge on misdemeanor obstruction as a separate lesser offense of aggravated assault on a peace officer.

Judgment affirmed.

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

        Johnson v. State, 246 Ga. 126, 128 (V) (269 SE2d 18) (1980); see McClain v. State, 267 Ga. 378, 384 (3) (b) (2) (477 SE2d 814) (1996) (“[a] judge’s remarks assigning a reason for a ruling are neither an improper expression of opinion nor a comment on the evidence”) (citations omitted); Crowe v. State, 265 Ga. 582, 594 (19) (458 SE2d 799) (1995) (same).

       Id.

        McGinnis v. State, 258 Ga. 673, 674 (4) (372 SE2d 804) (1988).

        Crews v. State, 226 Ga. App. 232, 237 (6) (486 SE2d 61) (1997).

        Mooney v. State, 221 Ga. App. 420, 424 (2) (471 SE2d 904) (1996) (physical precedent only).

       See McGinnis, supra, 258 Ga. at 675 (“at the close of the evidence, the trial court gave the usual charge to the effect of not having intended to express any opinion upon any facet of the case”; no mistrial); Kilgore v. State, 251 Ga. 291, 303 (305 SE2d 82) (1983) (“[s]uch instructions are sufficient, without any further showing . . ., to cure any possible prejudice from the . .. remarks”); Crews, 226 Ga. App. at 237 (6) (same).

       See Hicks v. State, 196 Ga. 671, 672 (2) (27 SE2d 307) (1943).

        Dumas v. State, 266 Ga. 797, 800 (2) (471 SE2d 508) (1996).

        Camsler v. State, 211 Ga. App. 826 (440 SE2d 681) (1994).

       See OCGA § 16-5-21 (a) (2).

       OCGA § 40-6-270 (a).

       OCGA § 40-6-270 (b).

       Black’s Law Dictionary, p. 14 (5th ed. 1979).

       Id. at 657.

       Cf. Tubman v. State, 185 Ga. App. 731 (365 SE2d 879) (1988) (affirming convictions of aggravated assault with a motor vehicle and failure to stop at or return to the scene of the accident).

       OCGA § 16-5-21 (a) (2).

       (Citations omitted.) Jones v. State, 75 Ga. App. 610, hn. 4 (44 SE2d 174) (1947); see Turner v. State, 231 Ga. App. 747, 748-749 (1) (500 SE2d 628) (1998) (indictment charged conjunctively and court charged jury disjunctively; conviction affirmed) and cits.; Adams v. State, 229 Ga. App. 381, 384 (4) (494 SE2d 92) (1997) (“where a person is charged in an indictment with a crime in two ways by using the conjunctive ‘and’ but where the statute contains ‘or’ if it is proven that the defendant violated the statute in either way he may be convicted”) (citations omitted); Travitt v. State, 228 Ga. App. 711, 712 (3) (492 SE2d 574) (1997) (same).

       See generally Jackson v. State, 267 Ga. 130, 131 (4) (475 SE2d 637) (1996) (key is that indictment inform defendant of the charges so that he can prepare a defense and that there be no danger of a second prosecution for the same offense); Panek v. State, 226 Ga. App. 14 (485 SE2d 580) (1997).

       See OCGA § 16-1-6.

       (Citation and punctuation omitted.) Edwards v. State, 264 Ga. 131, 132 (442 SE2d 444) (1994).

       See OCGA § 16-10-24 (a), (b).

       (Footnote omitted.) Brown v. State, 232 Ga. App. 787, 790 (1) (c) (504 SE2d 452) (1998).