author: Ruffin, Judge.

text:
    A99A0455.
    WILHELM v. THE STATE.
    (516 SE2d 545)
   Ruffin, Judge.

Randy Wilhelm was convicted of two counts of child molestation and one count of cruelty to children. He appeals, challenging the sufficiency of the evidence. Because the evidence was sufficient to support the convictions, we affirm.

The standard of review applied to an appeal of a criminal conviction is as follows:

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld. The testimony of a single witness is generally sufficient to establish a fact.

(Punctuation omitted.) Newman v. State, 233 Ga. App. 794 (1) (504 SE2d 476) (1998).

Viewed in a light most favorable to uphold the verdict, the evidence showed as follows. On June 21, 1997, Wilhelm went to the races at Winder-Barrow Speedway with Deborah Bowden, her son Michael, and Michael’s friend A. S., a ten-year-old girl. During the races, Wilhelm hugged A. S., kissed her on the ear, and told her he would never hurt her. Chris Mincey, a friend of A. S. who also went to the races that night, testified that Wilhelm asked him to French kiss A. S., but he refused. Mincey’s father, Billy Mincey, testified that he heard Wilhelm make comments about having tattoos and a chain or ring on his genital area.

At about midnight or 1:00 a.m., Wilhelm, Bowden, Michael, and A. S. left the races and went to a Waffle House restaurant. As they were eating, Wilhelm said that his penis was pierced and had a tattoo on it. The group returned to Bowden’s house about 2:30 a.m., and A. S. received permission from her parents to spend the night. As Wilhelm, Bowden, Michael, and A. S. were watching television, Wilhelm told Michael to kiss A. S. on the mouth. Bowden told Wilhelm not to say that. Wilhelm said that he wanted to show the others an earring or a tattoo on his penis. Wilhelm, who was facing A. S. and about a foot or two away from her, then pulled his pants down, exposing his penis to her. A. S. testified that she saw his penis “[a] little bit,” but then turned her head away. After Bowden told Wilhelm to stop, he pulled up his pants. Bowden then went to bed.

After Bowden left, Wilhelm began watching a pornographic movie on television. A. S. was sitting beside him on the couch, and Michael was lying on another couch. Michael fell asleep after a few minutes. Wilhelm offered A. S. some of his beer and asked if she had ever kissed Michael. Wilhelm then grabbed A. S.’s leg and began rubbing her foot on his genital area while looking at the television. A. S. pulled her foot away, at which point Wilhelm asked A. S. to kiss him. A. S. said that she had to use the restroom, and then went into Bow-den’s room and telephoned her mother, asking her to come get her. A. S.’s mother arrived a few minutes later, and A. S. ran outside to meet her. A. S. told her mother what had happened, and the mother called the sheriff’s department later that morning.

Wilhelm was charged with two counts of child molestation, one for exposing his penis to A. S. and the other for placing A. S.’s foot against his genital area. He was also charged with cruelty to children for placing A. S.’s foot against his genital area. He was convicted on each of these charges.

1. Wilhelm contends that there was insufficient evidence to support the charge of child molestation relating to the exposure of his penis. He claims that A. S. told Phyllis Marstellar, a child abuse investigator with the Jackson County Department of Family & Children Services, that she saw a tattoo and a ring on Wilhelm’s penis when he pulled down his pants. However, Wilhelm was physically examined by investigators before trial, and they apparently found no tattoos or piercings on his penis. Wilhelm contends that this conflict rendered the evidence insufficient to support his convictions.

This contention is without merit. According to Marstellar, A. S. told her that Wilhelm’s private parts “just had like tattoos,” but did not specifically describe the tattoos. Marstellar did not testily that A. S. specifically told her she saw a ring in Wilhelm’s penis, although A. S. told her that Wilhelm claimed to have such a ring and pulled down his pants to show it to her. At trial, A. S. testified that she saw Wilhelm’s penis only “a little” before she turned her head away. When questioned about what she told the investigator, she testified as follows:

Q. [Y]ou told the police that you saw tatoos [sic] on his private parts; isn’t that right? A. I saw something. But I don’t remember what it was. Q. Do you remember telling [the investigators] that it was tattoos? A. Yeah. That’s what I thought he said it was, but I didn’t see it. Q. Do you remember telling them that you saw tattoos though? A. Uh-uh. (Negative). Q. You don’t remember telling them that? A. No. I told them I thought I did.

Even if the jury believed Marstellar’s account of her conversation with A. S., it could have concluded that since Wilhelm had been talking about having tattoos on his penis, and since A. S. got only a brief glimpse of his penis when he exposed himself, A. S. might have initially mistaken something for a tattoo. Moreover, A. S.’s identification of Wilhelm as the perpetrator was not based upon the existence of a tattoo. Although A. S.’s statement to investigators that she thought she saw a tattoo may have raised questions as to her credibility in general, the credibility of a witness is a matter for the jury to resolve. Thompson v. State, 233 Ga. App. 364, 366 (3) (504 SE2d 234) (1998). “[T]hat some evidence offered by a witness seems contradictory to [her] own or to some other’s, or incomplete or uncertain, does not automatically discredit the evidence given by that witness [,] for it is the function of the trier [ ] of fact to determine to what evidence it gives credence.” (Punctuation omitted.) Norris v. State, 220 Ga. App. 87, 88 (1) (469 SE2d 214) (1996). Viewed in the light most favorable to the verdict, the evidence was sufficient for the jury to conclude beyond a reasonable doubt that Wilhelm was guilty of the crime charged.

2. Wilhelm also contends that the evidence was insufficient to support the charge of child molestation relating to his placing A. S.’s foot against his genital area. Wilhelm notes that, at trial, A. S. testified that his private “[f]elt like jello,” although she had previously told an investigator that “it felt big.” Although A. S. may have used different words to describe what she felt with her feet, the evidence was clearly sufficient for the jury to conclude that Wilhelm was guilty on this charge.

3. Finally, Wilhelm contends the evidence was insufficient to support his conviction of cruelty to children. OCGA § 16-5-70 (b) provides that “[a]ny person commits the offense of cruelty to children in the first degree when such person maliciously causes a child under the age of 18 cruel or excessive physical or mental pain.” Wilhelm argues that there was no evidence A. S. experienced cruel or excessive mental pain as a result of the incident, as alleged in the indictment.

A. S. testified that when she fled Wilhelm’s house and got into her mother’s car, she was “so scared” that she could not tell her mother what had happened. She testified that “[i]t hurt my — whenever he did that, it hurt my feelings.” Her mother testified that when A. S. called her to come pick her up, she sounded “real nervous” and “really scared.” According to the mother, when A. S. got into her car, she was “real nervous . . . and she didn’t want me to touch her.” When they got home, A. S. told her mother that “there was somebody at Deborah’s that scared [her].” The mother testified that A. S. was “upset” as she described what had happened. She testified that A. S. had trouble sleeping after the incident and did not “want to be as close to people as she used to be. . . . She just don’t want me to love on her as much and everything as she used to.” She testified that A. S. experienced severe nausea for a few days after the incident whenever she would eat.

Decided April 16,1999.

Kathleen J. Anderson, for appellant.

Timothy G. Madison, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellee.

As we have previously held,

[t]he determination of what is cruel or excessive physical or mental pain is to be made by the jury. “Cruel” and “excessive” are adjectives which inherently require a consideration of degree; the law does not set a bright line but leaves to the trier of fact, taking into account societal norms generally accepted, whether certain behavior inflicts “cruel” or “excessive” pain. . . . There will be a gray area where some would say it is and some would say it is not, and neither is wrong as a matter of law. There will be other areas on each end of the scale. . . . We must determine only whether the circumstances here, taking into account the evidence in favor of the finding and all reasonable inferences from that evidence, would prohibit the finding made by the jury.

(Punctuation and footnotes omitted.) Sims v. State, 234 Ga. App. 678, 679-680 (1) (a) (507 SE2d 845) (1998). Although the evidence regarding the extent of A. S.’s mental pain may not have been overwhelming, we believe that such evidence, viewed in the light most favorable to the verdict, was sufficient to support the jury’s finding. See Clark v. State, 234 Ga. App. 503 (507 SE2d 241) (1998).

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.

       Wilhelm was acquitted of a separate charge of sexual battery relating to a different victim.


source: Caselaw Access Project

author: Johnson, Chief Judge.

license: Public Domain

text:
    A99A0604.
    SNOKE v. THE STATE.
    (516 SE2d 541)
   Johnson, Chief Judge.

A jury found Raymond William Snoke guilty of trafficking in methamphetamine, possession of methamphetamine, distribution of methamphetamine, possession of less than one ounce of marijuana, and sale of marijuana. Snoke appeals from the judgment of conviction entered upon the jury’s verdict. For the following reasons, we affirm in part and reverse in part.

When construed in a light most favorable to support the verdict, the evidence presented at trial shows that in late August 1995, the police attempted to set up a controlled buy of a half-ounce of methamphetamine from Snoke for $900. The buy was to be made by a confidential informant using marked government money. By the time the undercover police officer arrived with the money, the purchase had been completed, Snoke had departed and the informant was already in possession of the methamphetamine. The informant gave the methamphetamine to the investigating officer.

Another drug buy was arranged. Approximately one week later, an undercover officer and the informant went to Snoke’s residence to pay for the methamphetamine purchased the week before and to buy marijuana. When they arrived at Snoke’s home, Snoke commented that he needed his money. The informant and Snoke went into the kitchen, and the officer stayed in the living room. After a few minutes, the informant came out of the kitchen and had a short conversation with the undercover officer, who then gave the informant $900 in marked $20 bills to pay Snoke for the methamphetamine. The informant carried the money into the kitchen but remained out of the officer’s sight. The officer was called into the kitchen to finalize the marijuana sale a few minutes later. The officer apologized to Snoke for not paying him sooner for the methamphetamine. The officer then commented on the quality of the methamphetamine he had been sold, and Snoke replied, “it was good stuff” In response to a similar apology by the informant, Snoke told them that when he was not at home, he had people at his house selling for him.

Based upon these incidents, the police obtained a search warrant for Snoke’s house. Meanwhile, the informant arranged for the undercover officer to purchase two ounces of methamphetamine from Snoke. The search and the methamphetamine purchase were to occur three days after the previous marijuana purchase. The search was to be conducted immediately upon completion of purchase. When the officer and informant arrived at Snoke’s home to buy the methamphetamine, Snoke said that he had only one ounce of methamphetamine to sell. The sale took place in Snoke’s kitchen. Snoke got a bag of methamphetamine from a file cabinet near his kitchen desk and cut two “lines” of methamphetamine from it. The two “lines” were put into a corner which Snoke cut from a plastic sandwich bag. Snoke gave the larger bag of methamphetamine to the officer. This methamphetamine was subsequently determined to weigh 27.5 grams. As soon as the officer and informant left, the police arrived at Snoke’s home to execute the search warrant. During the search, officers found three grams of methamphetamine on the desk in Snoke’s kitchen, consistent in size and packaging with the two “lines” which Snoke had cut from the original package he had delivered to the undercover officer moments earlier. The combined weight of the methamphetamine in the two packages thus exceeded twenty-eight grams. The officers also found some of the marked money used to pay Snoke for the marijuana and the methamphetamine previously purchased by the informant.

1. Snoke asserts there is insufficient evidence to support his conviction of distribution of methamphetamine because only hearsay evidence supported this charge. Snoke argues that the investigating officer merely recounted information told to him by a confidential informant who did not testify at trial. We disagree.

It is clear from our review of the evidence that the jury had before it more than hearsay testimony regarding the charge of distribution of methamphetamine. Therefore, Snoke’s reliance on Hammond v. State, 220 Ga. App. 760 (470 SE2d 302) (1996), and State v. Speir, 189 Ga. App. 254 (375 SE2d 298) (1988), is misplaced. Applying the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), we find there was sufficient direct and circumstantial evidence to sustain Snoke’s conviction of distribution of methamphetamine. See Whitfield v. State, 217 Ga. App. 402, 405 (3) (457 SE2d 682) (1995); OCGA § 24-4-6.

2. Snoke asserts that there was insufficient evidence to support his conviction of trafficking in methamphetamine because the amount sold was less than 28 grams. In pertinent part, OCGA § 16-13-31 (e) provides that “[a]ny person who knowingly sells, . . . delivers ... or has possession of 28 grams or more of methamphetamine . . . commits the felony offense of trafficking in methamphetamine. . . .” (Emphasis supplied.)

Given the state of the evidence in this case, the case of Hite v. State, 206 Ga. App. 245, 246-247 (2) (424 SE2d 885) (1992), is persuasive. The jury would be authorized to infer that the methamphetamine in the two packages weighed more than twenty-eight grams and originally came from the same bag in Snoke’s possession, which is sufficient evidence of possession to support the trafficking conviction. See id. at 247.

3. Snoke also argues that if his conviction for trafficking in methamphetamine is sustained by combining the weight of the methamphetamine found during the search with that sold to the undercover officer, his conviction of possession of methamphetamine must be vacated because it would be a lesser offense as a matter of fact to the trafficking charge. We agree and conclude that the possession of methamphetamine charge must be reversed.

Snoke was charged with possession of methamphetamine in count one of the indictment and with trafficking in methamphetamine in Count 3. Count 3 alleged that the trafficking offense was “separate and distinct” from the possession offense alleged in Count 1 and that it involved a quantity of methamphetamine “separate and distinct from that alleged in Count one.” The jury was charged as to the allegations contained in all counts of the indictment. During trial, the state introduced evidence that in addition to the 27.5 and three grams of methamphetamine described above, residue of methamphetamine had also been seized in Snoke’s house during the search. Before the forensic chemist testified as to the result of his analysis of this residue, a colloquy occurred in the presence of the jury between the trial court and the prosecutor. In response to a question from the trial court, the prosecutor confirmed that the evidence of methamphetamine residue was being introduced to establish only the possession charge and not the charge of trafficking. The record reveals, however, that the trial court did not give a limiting instruction to the jury regarding the purpose for which the evidence of methamphetamine residue was admitted but rather allowed the jurors to interpret the colloquy between the prosecutor and the court without the benefit of an explanatory instruction.

Although the state attempted to separate and distinguish the evidence seized during the search so that the jury could determine what portion of the methamphetamine was used only for trafficking and what portion was merely in Snoke’s possession, it failed to do so. Thus, a fair risk exists that the jury used the same evidence to convict Snoke of both offenses.

In the cases of Hancock v. State, 210 Ga. App. 528, 533 (3) (c) (437 SE2d 610) (1993), and Iglesias v. State, 191 Ga. App. 403 (1) (381 SE2d 604) (1989), the evidence established that one of the offenses at issue was a lesser included offense as a matter of fact because the same evidence was used to prove both offenses. Accordingly, the conviction for the lesser included offenses had to be reversed. Because the state failed to negate the likelihood that the jury used the same evidence to prove both the possession and the trafficking offense, we find the holding in Hancock and Iglesias to be applicable. The situation in this case is analogous to one where a prosecutor might find forty-eight grams of methamphetamine in one search, in two packages, one weighing twenty-nine grams and the other weighing nineteen grams, and from that evidence try to argue that the defendant could properly be charged and convicted on both trafficking and possession counts. The language of the statute, “28 grams or more,” would not allow the prosecutor to divide the amount discovered during the search for the purpose of creating multiple charges. See OCGA § 16-13-31 (e).

4. Snoke contends that the trial court erred in admitting statements he made after invoking his Miranda rights. We disagree.

At a Jackson-Denno hearing, a captain in the sheriff’s department testified that Snoke was placed in custody after his home was searched. The captain read Snoke his Miranda rights from a standard warning card. Snoke agreed to answer questions. Custodial interrogation continued for about five hours at Snoke’s house and resumed at the sheriff’s office. During this time, Snoke and the captain would argue, and Snoke would indicate to the captain that he no longer wanted to talk to him. The captain testified that whenever Snoke so indicated, questioning stopped and did not resume until Snoke initiated further discussion by saying he wanted to talk again. During the questioning, Snoke never requested a lawyer.

As Snoke never requested a lawyer, this issue is not before us. The trial court found that Snoke was properly advised of his Miranda rights and knowingly, freely, and voluntarily waived those rights and talked to the officer. The court also found that Snoke’s conduct did not constitute a refusal to talk with the officer. By finding that Snoke’s statements were knowingly, freely, and voluntarily made, the trial court rejected Snoke’s claim that he had invoked his right to remain silent. See Vaughan v. State, 210 Ga. App. 381, 383 (3) (a) (2) (436 SE2d 19) (1993). A trial court’s resolution of facts at a JacksonDenno hearing, including determinations of credibility as to issues of whether an accused has waived his rights, will be upheld unless it is clearly erroneous. See Underwood v. State, 218 Ga. App. 530, 533 (2) (462 SE2d 434) (1995). The record supports the trial court’s findings, and we find no error.

Even if Snoke had adequately asserted his right to remain silent, the captain could renew interrogation if Snoke initiated that communication. Underwood, supra. Viewing the captain’s testimony in its entirety, we find that Snoke freely and voluntarily initiated all renewed conversations with the captain and thus repeatedly and intentionally relinquished his right to remain silent. See id.

5. Snoke contends the trial court erred in refusing to give his requested instruction regarding the voluntariness of his pre-trial statement. The requested instruction appears to have been copied from a charge book.

The trial court substantially charged the jury as to the law related to the voluntariness of Snoke’s pre-trial statement. The jury was not charged, as requested by Snoke, as to the law to be applied if a suspect asserts his Miranda rights during questioning. The trial court did not err in declining to give Snoke’s requested charge.

Decided April 16,1999.

Jeffrey P. Manciagli, for appellant.

David McDade, District Attorney, James E. Barker, Assistant District Attorney, for appellee.

Snoke’s requested charge contained a section pertaining to the admission of the statements of defendants at a joint trial and another section pertaining to statements made during illegal detention. These issues were not raised by the evidence in this case. Thus the giving of Snoke’s charge, as submitted, could have misled or confused the jury. The trial court does not err when it refuses to give a charge which might mislead or confuse the jury. See Jones v. State, 200 Ga. App. 519, 521 (2) (c) (408 SE2d 823) (1991); see also Stinson v. Allstate Ins. Co., 212 Ga. App. 179, 182 (2) (a) (441 SE2d 453) (1994).

Even if an issue of whether Snoke asserted his right to remain silent had been raised, the omitted portion of the request to charge, which Snoke asserts resulted in error, was not adequately adjusted to the evidence regarding this issue. See generally Jones, supra; House v. State, 184 Ga. App. 724, 726 (4), (5) (362 SE2d 429) (1987). For example, this portion of the requested charge focuses on a defendant’s request for an attorney. Snoke never asserted his right to counsel either before or during interrogation. “If any portion of a requested charge is inapt, incorrect, misleading, confusing, argumentative, not precisely adjusted or tailored, or not reasonably raised or authorized by the evidence, denial of the charge request is proper.” (Citations, punctuation and emphasis omitted.) Stinson v. Allstate, supra at 182.

The judgment of conviction of possession of less than one ounce of marijuana, sale of marijuana, trafficking in methamphetamine, and distribution of methamphetamine is affirmed. The judgment of conviction of possession of methamphetamine is reversed.

Judgment affirmed in part and reversed in part.

McMurray, P. J., and Andrews, J., concur.


author: Blackburn, Judge.

text:
    A99A0383.
    REID v. THE STATE.
    (515 SE2d 201)
   Blackburn, Judge.

Theodore Reid was convicted of robbery and giving a false name following a jury trial. Reid appeals the trial court’s denial of his motion for a new trial based on insufficiency of the evidence and ineffective assistance of counsel. For the reasons set forth below, we affirm.

As an initial matter, we note that Reid did not support his enumerations of error with argument in his brief. See Court of Appeals Rule 27. In lieu of complying with Court of Appeals Rule 27, Reid incorporated by reference his motion for new trial filed in the trial court. We also observe that Reid has combined several errors within one enumeration, enumerating as error the trial court’s denial of “Appellant’s motion for new trial as amended on each ground enumerated therein.”

OCGA § 5-6-40 requires that the enumerations of error set out separately each error relied upon. When an appellant argues more than one error within a single enumeration, this court in its discretion may elect to review none of the errors so enumerated in violation of OCGA § 5-6-40 or elect to review any one. or more of the several assertions of error contained within the single enumeration and treat the remaining assertions of error therein as abandoned.

(Punctuation omitted.) Griffin v. State, 228 Ga. App. 200, 201 (491 SE2d 437) (1997). Exercising our discretion under these circumstances, we review only the error asserting insufficiency of the evidence for the robbery conviction, and any other errors are deemed abandoned. -

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Reid] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The jury’s verdict must be upheld if any rational trier could have found the essential elements of the crime beyond a reasonable doubt.

(Punctuation omitted.) Backey v. State, 234 Ga. App. 265 (1) (506 SE2d 435) (1998). See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

The evidence shows that Reid approached Richard McDonald after McDonald had parked his car in front of Chef Redd’s, a barbeque restaurant. Reid offered to watch McDonald’s car. When McDonald pulled out his wallet to pay Reid, Reid snatched the wallet and ran off. At trial, McDonald identified Reid as the person who snatched his wallet. Furthermore, the proprietor of the business identified Reid as the man he saw leaning on McDonald’s car that night. The evidence in this case is sufficient to support the conviction for robbery.

Decided March 30,1999

Reconsideration denied April 19,1999.

Sam B. Sibley, Jr., for appellant.

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

Judgment affirmed.

Beasley, P. J., and Barnes, J., concur.


text:
    A99A0702, A99A0703.
    In the Interest of S. B. et al., children (two cases).
    (515 SE2d 209)
   Blackburn, Judge.

Shirlene Bryant, the biological mother of Se. B., Je. B., Q. B., Ja. B., and Sho. B., appeals the juvenile court’s termination of her parental rights, claiming in two enumerations of error that the evidence was insufficient to support the termination. In a separate action, Clifford B. Lane, the putative father of Sho. B., appeals the termination of his parental rights, contending that the evidence was insufficient to support the termination and that the juvenile court failed to consider placement of Sho. B. with his relatives prior to awarding custody to the Department of Family & Children Services (DFACS). These related appeals have been consolidated herein for review.

On appeal, we must determine

whether, after reviewing the evidence in a light most favorable to the lower court’s judgments, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost. This 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.

(Citations and punctuation omitted.) In the Interest of R. N., 224 Ga. App. 202 (480 SE2d 243) (1997).

Case No. A99A0702

Bryant’s four oldest children, Se. B., Je. B., Q. B., and Ja. B., were removed from her custody and placed in foster care in June 1995 because Bryant had no permanent housing, her children lacked adequate clothing and food, and Bryant allegedly was dealing drugs. DFACS was then granted temporary custody on September 7, 1995. Sho. B. was born on September 10, 1995, and she was immediately taken into DFACS’ custody. At that time, DFACS developed a reunification case plan with which Bryant never successfully complied. Specifically, among other failures, she never established a stable residence, she never obtained lasting employment, she failed to complete a drug and alcohol counseling program, and she failed to complete a parenting skills program. On September 14, 1998, the juvenile court terminated Bryant’s rights to all of her children.

Before terminating a parent’s rights, a juvenile court must employ a two-prong test. In the first prong, the court must decide whether there is “present clear and convincing evidence of parental misconduct or inability.” OCGA § 15-11-81 (a). Parental misconduct or inability, in turn, is proven by evidence showing: (1) that the child is deprived; (2) that lack of proper parental care or control is the cause of deprivation; (3) that the cause of deprivation is likely to continue or will not likely be remedied; and (4) that continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. OCGA § 15-11-81 (b) (4) (A). ... In the second prong of the termination test, the juvenile court must consider whether termination of parental rights would be in the best interest of the child.

In the Interest of V. S., 230 Ga. App. 26, 27 (495 SE2d 142) (1997).

As [Bryant] did not appeal the original order [s] of the juvenile court finding that her children were deprived, she cannot now complain about that finding. In the Interest of E. C, 225 Ga. App. 12, 14-15 (482 SE2d 522) (1997). Therefore, only the three remaining criteria must be considered.

In the Interest of V. S., supra at 29.

The evidence of record supports the juvenile court’s determination that Bryant’s inability to adequately care for her children was the cause of their deprivation. Bryant failed to retain permanent employment for any length of time, moved her children from motel to motel, and failed to provide them with proper care, clothing, or nutrition. Such conduct provides clear and convincing evidence that the children’s deprivation resulted from her neglectful childrearing.

The record also supports a finding that the children’s deprivation would be likely to continue in Bryant’s care.

Although past deprivation is not sufficient for termination without a showing of present deprivation, the court can consider a parent’s past conduct in determining whether such conditions of deprivation are likely to continue. The court was entitled to infer from the evidence that, despite the best efforts of DFACS and many other social workers and charities, the same pattern of deprivation would continue [if] the children were reunited with their mother.

(Citation and punctuation omitted.) In the Interest of R. N., supra at 204 (1) (c). In this case, Bryant was given numerous chances to modify her behavior in order to regain custody of her children. However, after years of dealing with DFACS, Bryant failed to find permanent employment, to establish a stable home for her children, and to satisfy the goals of her reunification plan.

The juvenile court’s finding that Bryant’s children would likely be harmed by the continued deprivation is also well founded. As Bryant had a history of neglecting her children, her efforts to attain reunification were lackluster, and she failed to comply with DFACS’ case plan, the evidence provides clear and convincing proof that reuniting these children with Bryant would cause harm to them.

Finally, the record supports a finding that the best interests of the children are served by termination of [Bryant’s] rights. The same factors which show [her] inability to rear her children may also provide evidence that termination of her rights would be in the best interests of her children.

In the Interest of D. W., 235 Ga. App. 281, 283 (509 SE2d 345) (1998). The evidence shows that Bryant’s children have responded well in foster care and their health and mental skills are good. Although Bryant claims that she can now accommodate her children in her fiancé’s home, the outcome of her appeal does not change. “ ‘[T]he decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.’ ” In the Interest of D.I.W., 215 Ga. App. 644, 646 (1) (451 SE2d 804) (1994). Therefore, the termination of Bryant’s rights to her children is affirmed.

Case No. A99A0703

The record also supports the termination of Lane’s rights to his daughter, Sho. B. The evidence shows that, from 1993 to the present, Lane has been arrested for burglary, felony criminal damage to property, obstruction of an officer, aggravated assault, kidnapping, and attempted armed robbery. Lane was incarcerated at the time of Sho. B.’s birth, and, at the present time, Lane remains in prison. His tentative parole date is not until July 2001. To date, Lane has provided no support for Sho. B. and has had no contact with her at all. Based on Lane’s criminal history, his incarceration, and the total absence of any relationship or communication with Sho. B., the trial court did not err in termináting his parental rights.

Lane contends that DFACS failed to follow the mandate of OCGA § 15-11-90 (a) (1), which provides:

If, upon the entering of an order terminating the parental rights of a parent, there is no parent having parental rights, the court shall first attempt to place the child with the child’s extended family or with a person related to the child by blood or marriage. ... A placement shall be made under the terms of this paragraph only if such a placement is in the best interest of the child.

Lane argues that the trial court should have placed Sho. B. with his mother or his uncle, who testified that they would be willing to accept custody during the termination hearing. However, although both Lane’s mother and his uncle knew of Sho. B.’s birth and subsequent removal from her mother’s custody, neither one contacted DFACS or took any action to seek custody or support Sho. B. prior to the termination hearing. Moreover, Lane has never been married to Sho. B.’s mother, and he has provided no evidence that he is in fact her biological father. Because Lane has not shown that he is related to Sho. B. by blood or marriage, he cannot now complain that Sho. B. should have been placed with his relatives pursuant to OCGA § 15-11-90 (a) (1). Furthermore, Lane does not have standing to argue that Bryant’s rights were violated under this statute for failure to place Sho. B. with her relatives. As such, it cannot be said that the juvenile court abused its discretion by not placing Sho. B. with Lane’s relatives.

Decided March 30,1999

Reconsideration denied April 19,1999

Davis & Felton, Rodney E. Davis, for appellant (case no. A99A0702).

Robert F. Ness, for appellant (case no. A99A0703).

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Williams, Sammons & Sammons, Walter G. Sammons, Jr., for appellees.

Judgments affirmed.

Beasley, P. J., and Barnes, J., concur.

       The putative fathers of Se. B., Je. B., Q. B., and Ja. B. do not appeal the termination of their rights.

       Previously, Se. B. and Je. B. had been found to be deprived in July 1990. At the time of their birth, Bryant threatened to kill them.

       Moreover, Bryant and her fiancé have experienced severe domestic problems. On one instance, Bryant reported to police that her flaneé had sexually battered her, among other things.

       Bryant does not make any such argument in her appeal.


author: Beasley, Presiding Judge.

text:
    A99A0296.
    LUNSFORD v. THE STATE.
    (515 SE2d 198)
   Beasley, Presiding Judge.

During trial, Matthew Lunsford admitted stealing gas and money from a convenience store but contended he was unarmed. The store clerk, who recognized Lunsford, testified she saw a box-cutter in his hand immediately after he stuck something sharp in her back. The jury found him guilty of armed robbery, OCGA § 16-8-41, and he was sentenced to ten years. He did not appeal. Seventeen months later through different counsel Lunsford moved for leave to file an out-of-time appeal and for new trial. After a hearing, the trial court denied the motions. We granted Lunsford’s application for discretionary appeal pursuant to OCGA § 5-6-35 (j), for an order denying a motion for an out-of-time appeal is a final judgment which is directly appealable under OCGA § 5-6-34 (a). Rowland v. State, 264 Ga. 872, 876 (2) (452 SE2d 756) (1995).

1.

“(A)n out-of-time appeal is appropriate where due to the ineffective assistance of counsel, no appeal has been taken.” [Cit.] However, “an attorney renders effective assistance of counsel with regard to the decision whether to appeal when he advises his client of his. appellate rights, and does not preempt his client’s decision to appeal. . . . (N)either the sixth amendment nor the fourteenth amendment requires that the record reflect that the defendant made a knowing and intelligent decision not to appeal before he can be precluded from appellate review.” [Cit.] The grant or denial of a motion for an out-of-time appeal is within the discretion of the trial court, and its decision will not be reversed absent abuse of such discretion. [Cit.]

Decided March 30,1999

Reconsideration denied April 20,1999.

Dodd & Dennis, Roger J. Dodd, Saleem D. Dennis, for appellant.

Richard E. Currie, District Attorney, James D. Lamb, Assistant District Attorney, for appellee.

Lunsford asserts his out-of-time appeal should have been granted because his counsel failed to inform him of his “rights to file a Motion for New Trial, Notice of Appeal, or Direct Appeal.” At the hearing on the motion, Lunsford’s trial counsel testified that immediately after the conviction he explained to Lunsford that he would not handle his appeal because he saw no error, and that Lunsford had 30 days to appeal. Lunsford denied this.

The trial court as finder of fact may believe the attorney’s testimony. We find no abuse of discretion.

2. Lunsford asserts the trial court erred in dismissing his motion for new trial on the grounds that it was untimely, because he was not properly informed of his appellate rights. “ Tn any case where a motion for a new trial is made more than 30 days after the entry of judgment on the verdict, some good reason must be shown why the motion was not made within the time allowed by law.’ ” Because the court did not err in denying the motion for out-of-time appeal based on the same ground, this enumeration fails.

Judgment affirmed.

Blackburn and Barnes, JJ, concur.

        Penrod v. State, 233 Ga. App. 532-533 (504 SE2d 757) (1998).

       See Murphy v. Balkcom, 245 Ga. 13, 14 (262 SE2d 784) (1980) (trial court entitled to believe attorney’s testimony about his course of practice explaining the right to appeal to his clients).

       See Penrod v. State, supra at 533 (“the trial court was authorized to believe [attorney’s] testimony that he advised [defendant] of his right to appeal and that [defendant] did not elect to exercise that right.”).

        Riggins v. State of Ga., 197 Ga. App. 612 (399 SE2d 96) (1990).


author: McMURRAY, Presiding Judge.

text:
    A99A1238.
    CHAMBERS v. ABELLANA et al.
    (515 SE2d 884)
    Decided April 8,1999
    Reconsideration denied April 20,1999.
    Donovan Chambers, pro se.

      Miller & Towson, Wallace Miller III, Joel A. Howe, for appellees.
   McMURRAY, Presiding Judge.

Donovan Chambers, an inmate at Macon State Prison, Oglethorpe, Georgia, appearing pro se, filed this appeal from the trial court’s order granting Dr. Max Abellana’s motion for summary judgment in this medical malpractice action. Held:

“The Prison Litigation Reform Act of 1996 provides that (a)ppeals of all actions filed by prisoners shall be as provided in Code Section 5-6-35.’ OCGA § 42-12-8.” Serpentfoot v. Salmon, 225 Ga. App. 478 (483 SE2d 927). The case sub judice is subject to this provision because appellant Chambers filed his notice of appeal while a prisoner. See OCGA § 42-12-3 (4). Since appellant Chambers has not followed the discretionary appeal procedure provided in OCGA § 5-6-35, we have no jurisdiction to consider this appeal. Botts v. Givens, 223 Ga. App. 139 (476 SE2d 816); Boyle v. State of Ga., 190 Ga. App. 734 (380 SE2d 57). Accordingly, we must dismiss appellant Chambers’ appeal.

Appeal dismissed.

Andrews and Ruffin, JJ, concur.


text:
    A97A1330.
    BRIAN REALTY CORPORATION v. DeKALB COUNTY et al.
    (516 SE2d 552)
   Ruffin, Judge.

In our decision in Brian Realty Corp. v. DeKalb County, 229 Ga. App. 185 (493 SE2d 595) (1997), we held that (1) Brian Realty had standing to challenge the assessment of ad valorem taxes; (2) the trial court erred in granting summary judgment to DeKalb County on Brian Realty’s claim under OCGA § 48-5-380; (3) the trial court properly granted summary judgment to DeKalb County on Brian Realty’s claim under 42 USC § 1983; and (4) there was no unconstitutional taking of Brian Realty’s property.

In DeKalb County v. Brian Realty Corp., 270 Ga. 724 (270 SE2d 724) (1999), the Supreme Court reversed this Court’s decision with regard to Division 2, holding that the trial court properly granted summary judgment to DeKalb County on Brian Realty’s claim under OCGA § 48-5-380. Accordingly, the decision of the Court of Appeals in Brian Realty, supra, is hereby vacated, and the judgment of the Supreme Court is made the judgment of this Court.

Decided April 20,1999.

Knapp & Street, Halsey G. Knapp, Jr., for appellant.

Carothers & Mitchell, Richard A. Carothers, Thomas M. Mitchell, Boyce, Ekonomou & Atkinson, John E. Underwood, Sr., Jonathan A. Weintraub, Lee W. Fitzpatrick, for appellees.

Judgment reversed.

Eldridge and Barnes, JJ, concur.


text:
    A99A0091.
    THE STATE v. MANOS.
    (516 SE2d 548)
   McMURRAY, Presiding Judge.

Defendant was stopped at a roadblock inspection for driver’s licenses and insurance papers and subsequently was charged with driving under the influence of alcohol and driving with an unlawful blood alcohol concentration. He moved to suppress “all evidence obtained” as a result of this roadblock. The State and the defendant stipulated that the roadblock at issue was operated under the same methodology as previously testified to by the same arresting officer in another case, and the parties agreed to use the evidence from that prior case as the evidence in support of this roadblock.

At that prior hearing, Officer G. T. McElroy of the Doraville Police Department testified without contradiction as follows: Dora-ville police were performing a license and insurance check roadblock on the southbound access road of Peachtree Industrial Boulevard at Tilly Mill Road. Officer McElroy confirmed this roadblock was implemented by supervisory personnel and was clearly identified to motorists as a police check point. Every car that approached was stopped “unless we get too backed up.” In that event, police “let every car go till there’s no more vehicles in sight, and then . . . start stopping cars again.” That is, when the police are busy and cannot tend to the people approaching the roadblock, they let them all go through, and then later on, the police “just pick up . . . [and] resume the roadblock.” Officer McElroy confirmed the “roadblock doesn’t officially end; [it is] just [that] temporarily [police] let people go through. . . .” A “screening officer” would determine if a driver appeared under the influence of alcohol, although the qualifications of such screening officer do not appear of record. If a driver is able to produce proof of insurance and a driver’s license, and police do not smell an odor of alcoholic beverage, the length of the detention is only “fifteen to thirty seconds.”

The trial court granted defendant’s motion to suppress. Pursuant to OCGA § 5-7-1 (a) (4), the State appeals. Held:

“[A] Fourth Amendment ‘seizure’ occurs when a vehicle is stopped at a checkpoint. [Cits.] The question thus becomes whether such seizures are ‘reasonable’ under the Fourth Amendment.” Michigan Dept. of State Police v. Sitz, 496 U. S. 444, 450 (110 SC 2481, 110 LE2d 412). Accord LaFontaine v. State, 269 Ga. 251, 252 (3) (497 SE2d 367). See also Brent v. State, 270 Ga. 160, 161 (2) (510 SE2d 14).

A roadblock is satisfactory where the decision to implement the roadblock was made by supervisory personnel rather than the officers in the field; all vehicles are stopped as opposed to random vehicle stops; the delay to motorists is minimal; the roadblock operation is well identified as a police checkpoint; and the “screening” officer’s training and experience [are] sufficient to qualify him to make an initial determination as to which motorists should be given field tests for intoxication.

LaFontaine v. State, 269 Ga. 253 (3), supra, applying the factors identified in State v. Golden, 171 Ga. App. 27, 29 (318 SE2d 693).

In the case sub judice, the record is silent as to the procedures whereby officers, either supervisory or in the field, determine whether public safety requires that an existing roadblock be terminated, temporarily or otherwise, due to a backup in traffic. Common sense recognizes the reasonableness of some type of procedure to suspend or halt a roadblock where the flow of traffic overwhelms the resources dedicated to that roadblock and poses a threat to public safety. A supervisor’s decision to stop the roadblock, permitting all subsequent traffic to proceed is neither arbitrary nor capricious. Conversely, more officers could be assigned to the roadblock to handle the traffic load. We do not hold that a traffic backup renders an otherwise reasonable roadblock unreasonable under either the Fourth Amendment or Art. I, Sec. I, Par. XIII of the Georgia Constitution (1983). But the meager record before us is inadequate to justify reposing an unfettered discretion in the field officer to stop and start the roadblock at will (randomly), based on a vague and undocumented articulation of public safety. Absent some type of policy defining the options to supervisory personnel or else limiting the discretion of the officer in the field, we hold the evidence of record authorized the trial court’s conclusion that the particular roadblock at issue was impermissibly based on an unfettered discretion granted to the field officer. Under these particular circumstances, the grant of defendant’s motion to suppress was not in error.

Decided April 20,1999.

Gwendolyn R. Keyes, Solicitor, Maura F. Krause, W. Cliff Howard, Assistant Solicitors, for appellant.

William C. Head, for appellee.

Judgment affirmed.

Andrews and Ruffin, JJ, concur.


author: Andrews, Judge.

text:
    A99A0014.
    SHEFFIELD v. THE STATE.
    (516 SE2d 563)
   Andrews, Judge.

Ronald Ray Sheffield appeals from the denial of his motion for new trial after his conviction of driving under the influence of alcohol to the extent he was less safe to drive. OCGA § 40-6-391 (a) (1).

1. Sheffield contests the sufficiency of the evidence in his third enumeration, and we consider it first.

“ ‘On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence.’ (Citations and punctuation omitted.) Curtis v. State, 208 Ga. App. 720, 721 (431 SE2d 719) (1993).” Etienne v. State, 219 Ga. App. 95, 97 (2) (464 SE2d 396) (1995).

So viewed, the evidence was that, on January 16, 1990, Deputy Floyd received a call regarding a 1973 Ford truck blocking a roadway. He responded, and on the way to that location, he encountered another vehicle weaving. He pulled that vehicle over right behind the pickup which was partially blocking the roadway. After placing the first driver under arrest, Deputy Floyd approached the pickup and tapped on the door. The truck’s engine was running, and he could see Sheffield slumped over the steering wheel. Sheffield made no attempt to respond to the officer. The officer opened the truck door and asked Sheffield to exit. When Sheffield looked at him, the officer noticed that Sheffield’s eyes were very bloodshot and there was a strong smell of alcohol. Sheffield then cursed the officer and told him he would “whip [his]---.”

Deputy Floyd called for backup, and he and Sgt. Frederick removed Sheffield from the truck, cuffed him, and placed him in the police car. Both officers stated that Sheffield was “highly intoxicated,” could not stand on his own, smelled of alcohol and was agitated, cursing, and threatening them. Sheffield refused to submit to any testing after he was read his implied consent rights. Deputy Floyd testified that, in his opinion, Sheffield was a very unsafe driver.

Sheffield argues that, since neither officer saw him actually drive the vehicle, the State had failed to prove the charge since there were other reasonable hypotheses for his presence in the truck. This argument was rejected by the factfinder, and we find the evidence legally sufficient. Turner v. State, 233 Ga. App. 413, 417 (2) (504 SE2d 229) (1998); Cunningham v. State, 231 Ga. App. 420, 422 (2) (498 SE2d 590) (1998); Phillips v. State, 185 Ga. App. 54 (1) (363 SE2d 283) (1987).

2. Sheffield’s first enumeration alleges three errors regarding the trial court’s admission of a similar transaction.

“Our law requires that enumerations ‘shall set out separately each error relied upon.’ (OCGA § 5-6-40). . . .” [Cit.] When an appellant argues more than one error within a single enumeration, this court in its discretion may elect to review none of the errors so enumerated ... or elect to review any one or more of the several assertions of error contained within the single enumeration and treat the remaining assertions of error therein as abandoned [.] [Cit.]

Robinson v. State, 200 Ga. App. 515, 518 (2) (b) (408 SE2d 820) (1991).

Considering only the issue of whether the State adequately proved the similar transaction, we find that it did not. The only evidence presented was State’s Exhibit 2, a certified copy of Sheffield’s prior conviction of OCGA § 40-6-391 (a) (1). That is insufficient. Stephens v. State, 261 Ga. 467, 468 (6) (405 SE2d 483) (1991). Compare Lucas v. State, 234 Ga. App. 534, 536 (2) (507 SE2d 253) (1998).

Because of the circumstantial nature of the case, we cannot say that the admission of this similar transaction evidence was harmless, and the conviction must be reversed.

3. Finally, Sheffield contends that the trial court erred in failing to hold a hearing on his motion to suppress and in limine regarding evidence of his refusal to submit to a breath test.

The transcript reveals, however, that there was discussion, argument, and the officers’ testimony given on a number of Sheffield’s motions, including the one directed at his refusal to take the test. We have examined the trial transcript as well, and it reflects that Sheffield was read his implied consent rights. The trial court properly admitted the refusal to take the test. OCGA § 40-6-392 (d); Wells v. State, 227 Ga. App. 521, 523 (2) (489 SE2d 307) (1997); State v. Leviner, 213 Ga. App. 99, 100 (2) (443 SE2d 688) (1994).

Judgment reversed.

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

Decided April 21,1999.

Virgil L. Brown & Associates, Larkin M. Lee, for appellant.

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


text:
    A99A0146, A99A0147, A99A0148.
    CARTER v. THE STATE (three cases).
    (516 SE2d 556)
   McMURRAY, Presiding Judge.

In Case No. A99A0146, defendant Thomas M. Carter was charged in a special presentment with one count of arson in the first degree, in that on March 14,1993, he intentionally caused damage to the dwelling house of his ex-wife, Dana Carter, without her consent, by means of fire. Defendant was subsequently charged in Case No. A99A0147 with four counts of influencing a witness in violation of OCGA § 16-10-93, for communicating threats of injury to witnesses in a criminal charge of stalking then pending against defendant in the State Court of Cherokee County. In Case No. A99A0148, defendant was charged with two counts of false swearing in violation of OCGA § 16-10-71; two counts of giving a false statement in connection with his application to be represented at county expense as an indigent; and one count of theft of services. After three separate jury trials, defendant was found guilty of all counts. These three separate appeals are hereby consolidated for disposition in a single appellate decision. Held:

Case No. A99A0146

1. Defendant first contends the trial court erred in “fail[ing] to release funds wrongly appropriated from and belonging to the Defendant so that he could mount an adequate defense.”

In defendant’s brief, there is but a single reference to the transcript in support of this enumeration. See Court of Appeals Rule 27 (c) (3) (i). There, after the jury was selected for his arson trial, defendant asked for reconsideration of an alleged prior court order denying defendant’s application “for funds to hire an investigator and an expert witness.” Specifically, defendant asked that those funds be made available either from the county or from defendant’s private account “if there is any money left available. And if that is granted, that the case be continued to give the expert time to do his analysis.” (Emphasis supplied.) Defendant conceded that, three weeks earlier, when he moved for funds to pay attorney fees, he did not then request funds for an expert fire investigator. The trial court declined to continue the case and denied defendant’s motion for reconsideration.

(a) Although defendant strenuously argues the trial court arbitrarily confiscated and capriciously withheld defendant’s own money from him, the transcript authorizes the conclusion that such sums as were in defendant’s frozen account had already been paid out for attorney fees by the trial court before defendant ever requested a disbursement for an arson investigator. Defendant failed to show that there were in fact funds available in the account as of the morning of trial.

(b) Defendant further failed to show on appeal he was entitled to an arson investigator as an indigent.

[T]he grant or denial of a motion for appointment of an expert witness lies within the sound discretion of the trial court, and where the defendant’s conviction [does] not rest entirely on the [S]tate’s expert evidence, and the [S]tate’s expert [is] not shown to be incompetent or biased, . . . the trial court [does] not abuse its discretion in denying such motion. Jackson v. State, 249 Ga. 751, 755 (3) (295 SE2d 53) (1982).

Carter v. State, 252 Ga. 502, 504 (2) (315 SE2d 646).

In the case sub judice, defendant’s first degree arson conviction is not based solely upon expert opinion evidence. Rather, the State adduced proof that, on the night before the fire, Dana Carter, defendant’s ex-wife, left her home on Cons Creek Road securely locked to take her son to stay at her mother’s home, during an anticipated snow storm. Defendant quarreled with Dana Carter over the telephone, and he told her she “would need to get a new house and a new car.” The next morning Dana Carter received a call from the sheriff’s department informing her that her house was on fire. A neighbor, Bobby Baldwin, saw defendant walking away from Dana Carter’s house, and then some people drove into Bobby Baldwin’s yard asking whether Bobby Baldwin had a telephone, because that house nearby was on fire. Craig Ross, formerly a firefighter with the City of Ball Ground, identified defendant as the man who, on March 14, flagged him down and wanted a ride as far as Cons Creek Road from Highway 372. Ross dropped defendant off about 12:00 p.m. and proceeded home for lunch. At 1:00 p.m., the scanner went off with the fire tones from Ross’ station, announcing a fire on Cons Creek Road. When Ross arrived at the fire, he entered through an open door at the basement, to determine whether anyone was inside the structure. He found no one inside but recognized defendant among the bystanders outside as the man to whom he had recently given a ride.

Steven L. Yoder, a firefighter with Cherokee County Fire & Rescue, saw defendant walking away from the burning house. In Yoder’s experience, this fire was unusual, in that there was a fire on the outside along the front porch and inside the house as well, but there was no fire trail from the front porch to the inside of the house. The windows were still all intact, and the siding was still on the house. In Yoder’s expert opinion, this represented two separate fires.

John Ray Clark lives a quarter-mile from the Carter home. Clark saw defendant walking away from the direction of the burning residence. Defendant ran to Clark’s truck and asked if he could give him a ride to town. When Clark asked defendant if he knew his house was on fire, defendant replied, “no, that he didn’t.” Clark asked, “Do you know if Dana and Caleb are in the house?” And defendant said he “didn’t think so.” So Clark said, “Well, don’t you think you ought to go back down and see the house?” And defendant said that he guessed he should. Mr. Clark noticed that defendant was not dressed for the cold weather, wearing only a pair of loafers without any socks, blue jeans and a plaid shirt. There was a cut on one of defendant’s hands, which were very dirty looking. Defendant seemed very calm upon being told his house was burning; he showed no emotion.

Detective Thomas Fletcher Harris, Jr., an arson investigator for Cherokee County, noticed a rock under the first window on the right-hand side of the porch. Inside, there was broken glass on the floor, directly under the window. This glass was clear, indicating it was broken out before the fire. He further observed that one couch in the living room was totally burned while the one next to it was hardly burned at all, from which circumstance, Detective Harris deduced there must have been an accelerant or some kind of extra fuel load used there for it to bum so. Specifically, it seemed like there had been something put under the couch because its underside was burned. It looked like there was a pour pattern where the couch was. From the burn pattern on the stairway leading to the basement, Detective Harris concluded an accelerant or some kind of fuel load such as newspaper was used in that area. In Detective Harris’ opinion, the house burned down because someone put an unidentified liquid that was an accelerant at certain points in the house.

Special Agent Randall Lynn Kersey, an arson investigation instructor with the Georgia Bureau of Investigation, testified that there is a very natural progression to any fire. Fires are generally of a single origin, and then they progress upward and outward very predictably from that. Patterns on the floor indicating a spill or a pour are obviously inconsistent with a naturally progressing fire. When he inspected the Carter residence, Special Agent Kersey found a very definitive pattern that would be consistent with something having been poured and distributed on the floor leading in the direction to the entrance of the bedroom. In his opinion, at least three separate fires were intentionally set, using an accelerant. But Special Agent Kersey confirmed he had no physical or scientific evidence that it was defendant who started the fire.

Three things are necessary to sustain a conviction for arson: that the real property alleged in the indictment was in fact burned, that its cause was a criminal agency, and that the defendant was that criminal agency. The latter may be proved by circumstantial evidence.

(Citations and punctuation omitted.) Bragg v. State, 175 Ga. App. 640 (1), 641 (334 SE2d 184). Viewed in the light most favorable to the jury’s verdict, proof that defendant caused these fires comes from his proximity to the incendiary blaze, started after forced entry to his ex-wife’s home. Defendant recently fought with his former wife, and he was jealous over her new boyfriend. He threatened that she would soon need a new house and new car, and he knew that his child would not be in the home that weekend. Thus, while the State’s expert opinion evidence is crucial to the determination that the fire was a criminal enterprise and not accidental or providential, the State’s expert opinion evidence is not the sole evidence against defendant. Consequently, the trial court in this case did not abuse its discretion in refusing to continue the case and appoint an expert investigator, in response to defendant’s tardy request. See Carter v. State, 252 Ga. 504 (2), supra.

2. Next, defendant contends the trial court erred in admitting photographs and testimony based upon a second investigation of the burn site, some five months after the fire. He argues that, absent a warrant or consent the testimony of a fire inspector relative to evidence obtained from an invalid inspection is not admissible.

It is undisputed that defendant was under court order to deed over his interest in the property to the victim, defendant’s former spouse, under the terms of their divorce decree. Defendant was also under a restraining order to prevent him from coming to the victim’s house. Pretermitting whether the victim, Dana Carter, ratified the subsequent non-consensual search of her burned home, we hold defendant in the case sub judice had no reasonable expectation of privacy or other protected interest implicated by the subsequent investigation of the burn site and consequently has no standing to challenge the allegedly unlawful second search of the victim’s property. See Dennis v. State, 166 Ga. App. 715, 717 (305 SE2d 443). The trial court did not err in admitting the photographs and testimony objected to in this enumeration.

Case No. A99A0147

3. In Case No. A99A0147, defendant was charged with four counts of influencing a witness, in violation of OCGA § 16-10-93. In his first enumeration he contends the trial court erred in failing to direct a verdict as to each count.

(a)

On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant (defendant here) no longer enjoys a presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Conflicts in the testimony of the witnesses, including the State’s witnesses, [are] a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

(Citations and punctuation omitted.) Howard v. State, 227 Ga. App. 5, 8 (6) (a) (488 SE2d 489).

(b)

A person who, with the intent to deter a witness from testifying freely, fiilly, and truthfully to any matter pending in any court, in any administrative proceeding, or before a grand jury, communicates, directly or indirectly, to such witness any threat of injury or damage to the person, property, or employment of the witness or . . .of any relative or associate of the witness . . .

commits the offense of influencing a witness in violation of OCGA § 16-10-93 (a).

In the case sub judice, the four victims of defendant’s intimidation were his former wife, Dana Carter, and Sergeant Mike Barber, Detective Cathy Carter, and Officer Mike Johnston of the Canton Police Department. Three of these four victims were listed as witnesses on an accusation charging defendant with stalking his former wife on June 11, 1993. While in custody, defendant told Deputy Charles Jeffrey Shields of the Cherokee County Sheriff’s Office that “Officer Barber had taken his [defendant’s] wife, was sleeping with her and had put him in jail. . . . And then he said he would just kill them.”

Whether an act is committed with the requisite criminal intent is a question for the jury “upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.” OCGA § 16-2-6. See Blanton v. State, 191 Ga. App. 454 (1), 455 (382 SE2d 133).

Cornelius v. State, 213 Ga. App. 766, 768 (1) (445 SE2d 800). In the case sub judice, the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307, supra, to authorize the jury’s verdicts that defendant threatened the lives of Dana Carter and Sergeant Barber with the intent to deter their testimony in the pending stalking case, as alleged in Counts 1 and 2.

(c) Detective Cathy Carter with the City of Canton Police Department obtained a warrant for defendant’s arrest on the charge of terroristic threats, based on his statements that he had hired an expert marksman to shoot his former wife and Sergeant Mike Barber. On December 13, 1993, the grand jury returned an indictment charging defendant with felony obstruction of a law enforcement officer and with intimidation of a court officer, listing “Inv. C. Carter” as the first witness. On Christmas Day, 1993, defendant

pulled into [Ms. Carter’s] driveway and just backed up and left. . . . [AJfter arresting someone [like defendant] and after hearing the threats that he had made . . ., it really, really scared [Ms. Carter]. [Her] son is 14, stays home sometimes by himself until [Ms. Carter] gets home from work. And to know that. . . this person [defendant] knows where [Ms. Carter] live[s] . . . really upset [her].

In our view, this evidence of defendant’s menacing presence at the home of a potential witness was sufficient, beyond a reasonable doubt, to authorize the jury’s verdict that defendant indirectly communicated a threat to Ms. Carter’s person and her property with the intent to deter her testimony in the pending obstruction charge, as alleged in Count 3 of the indictment.

(d) Defendant sent a letter to Canton Police Chief Bradley L. Pope accusing Officers Cathy Carter, Mike Johnston and Mike Barber of “lies under oath when the warrants were taken and each time was with the intent to have [defendant] remain in jail as a supposed violation of [his] bond.” Defendant urged that these officers should take a polygraph test or submit to suitable discipline from Chief Pope. This evidence was sufficient, beyond a reasonable doubt, to authorize the jury’s verdict that defendant communicated a threat to the employment of the witnesses listed on the stalking accusation, with the intent to deter their free, full and truthful testimony as alleged in Count 4 of the indictment. Thus, in no instance did the trial court err in refusing to direct a verdict of acquittal on any of these four charges.

4. Next, defendant contends that trial counsel was ineffective when he failed to preserve his objection to the admission of the stalking warrant and in failing to reserve his exceptions to the trial court’s jury instructions. But for aught that appears of record, defendant never pursued this special ground for a new trial before the trial court.

“By proceeding directly with this appeal without pursuing an evidentiary hearing on trial counsel’s alleged ineffectiveness, we conclude the issue has been procedurally defaulted and presents nothing for review. Glover v. State, 266 Ga. 183 (2) (465 SE2d 659).” Gantt v. State, 229 Ga. App. 207, 209 (3) (493 SE2d 608).

Case No. A99A0148

In Case No. A99A0148, Counts 1 and 3 charged respectively that, on August 12, 1993, and then a year later on August 5, 1994, defendant did “make a false statement regarding income and his other assets when he executed ... an application for appointed counsel in Superior Court . . ., knowing that it purported to be an acknowledgment of a lawful oath. . . .” Counts 2 and 4 alleged that, on August 12,1993, and on August 5,1994, defendant did knowingly and wilfully conceal a material fact, to wit: that he had additional assets, and made a false statement, to wit: “that the accused did not have any assets other than those indicated in an application for appointed counsel,” in a matter within the jurisdiction of the Pretrial Services Division of the Superior Court of Cherokee County. Count V alleged theft of services, in that, between August 12, 1993, and October 8, 1994, defendant did “knowingly and wilfully obtain services of an attorney, which are only available for compensation, by means of deception and with the intent to avoid payment. . . .” Defendant enumerates the denial of directed verdicts as to all five convictions.

5. As to Counts 1 and 3, defendant contends he cannot be guilty as charged because his allegedly false swearing involved a judicial proceeding; hence, he is guilty of peijury. We disagree.

A person . . . who executes a document knowing that it purports to be an acknowledgment of a lawful oath or affirmation commits the offense of false swearing when, in any matter or thing other than a judicial proceeding, he knowingly and willfully makes a false statement.

(Emphasis supplied.) OCGA § 16-10-71 (a).

Perjury, as proscribed by OCGA § 16-10-70 (a), “ ‘is the wilful assertion as to a matter of fact, opinion, belief, or knowledge, made by a witness in a judicial proceeding as part of his evidence. . .given in open court or in an affidavit. . . .’ ” Herring v. State, 119 Ga. 709, 715 (1) (46 SE 876). “A ‘judicial proceeding is a proceeding in a legally constituted court.” Garrett v. State, 18 Ga. App. 360, hn. 1 (89 SE 380). In the case sub judice, the false statements defendant affirmed in his application to Cherokee County Pre-Trial Services for a County-appointed attorney were not given as evidence in a judicial proceeding, even though those statements were undeniably ancillary to a judicial proceeding. See Plummer v. State, 90 Ga. App. 773, 780 (84 SE2d 202). The trial court did not err in failing to direct verdicts of acquittal on this ground as to Counts 1 and 3.

6. As to his convictions on Counts 2 and 4 for violating OCGA § 16-10-20 by concealing a material fact, i.e., additional income and assets, defendant contends in a prolix argument that the State failed to prove the materiality of his omissions. At sentencing, however, the trial court merged Count 2 into Count 1 and merged Count 4 into Count 3. Consequently, this enumeration is rendered moot. OCGA § 16-1-7 (a); Joachim v. State, 263 Ga. 816, 817 (2) (440 SE2d 15).

7. Pursuant to OCGA § 16-8-5, “A person commits the offense of theft of services when by deception and with the intent to avoid payment he knowingly obtains services, accommodations, entertainment, or the use of personal property which is available only for compensation.” The gist of this offense is deceptively obtaining services with the intent to avoid payment. Johnson v. State, 159 Ga. App. 497, 498 (283 SE2d 711). Defendant argues the evidence is insufficient to support his conviction on this charge because his appointed attorney sometimes takes “criminal cases for nothing at all.” This testimony certainly does not demand a finding that appointed counsel would have agreed to take this case pro bono. Defendant previously retained this lawyer for his divorce, and counsel charges an hourly fee of $150 for civil work. In our view, evidence that defendant allowed an application for appointed counsel to be submitted in his name, knowing that the application contained deceptively misleading and false information about the true state of his finances, and thereafter obtained and accepted the services of appointed counsel is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307, supra, to authorize the jury’s verdict that defendant is guilty, beyond a reasonable doubt, of violating OCGA § 16-8-5 as alleged in the indictment.

8. Defendant additionally contends the trial court erred “when it refused Defense Counsel the right to question a witness regarding . . . funds belonging to [defendant] which had been frozen by Court order.” We agree with the trial court that the subsequent freezing of the discovered assets is not relevant to defendant’s intent at the time he submitted the deceptive and false application for an attorney to be provided at County expense.

Decided April 21,1999.

Sidney L. Storesund, for appellant.

Garry T. Moss, District Attorney, Cecelia Harris, Assistant District Attorney, for appellee.

Judgments affirmed.

Andrews and Ruffin, JJ., concur.


author: Judge Harold R. Banke.

text:
    A99A0741.
    SHEPARD v. THE STATE.
    (516 SE2d 568)
   Judge Harold R. Banke.

Zarex Shepard was convicted of criminal attempt to commit robbery by intimidation and of giving a false name to a law enforcement officer. Following the denial of his motion for new trial on general grounds, he appeals. He challenges the sufficiency of the evidence to support his conviction of criminal attempt to commit robbery.

The State’s evidence showed the following. While the victim was working as cashier at an Amoco station, Shepard and his co-indictee Page appeared at the store one night. Page stationed himself at the front door while Shepard approached the checkout counter and demanded 50 cartons of cigarettes. When the victim inquired as to the mode of payment, Shepard did not respond to the question but began to curse and demand that he put the cigarettes in a bag. Although he put ten cartons of cigarettes in a bag, he refused to give the bag to Shepard until he paid.

As this was taking place, two other customers came into the store. When the first appeared, Shepard told her to go ahead of him. She realized something was amiss and, after leaving the store, called the police. Page attempted to prevent the next customer from entering the store by telling him it was closed, but this customer entered through another door, bought some cigarettes, and then left.

After continuing in his unsuccessful effort to have the cashier give him the cigarettes, Shepard said he was leaving but would return. He proceeded into the parking lot and appeared to retrieve an item from the trunk of his car. He then reentered the store, grabbed his waistband, and told the cashier “I have something for you.” Believing that Shepard had a gun, the cashier retrieved a weapon from under the counter whereupon Shepard fled the scene. He and Page were quickly apprehended by the police and positively identified by the cashier and the first customer.

Decided April 21,1999.

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

Robert E. Keller, District Attorney, Bonnie K. Smith, Assistant District Attorney, for appellee.

Shepard’s evidentiary challenge is predicated on testimony given by himself and Page denying any plan or intent to rob the store.

“On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the appellant [Shepard] no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Conflicts in the testimony of the witnesses, including the State’s witnesses, (are) a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” [Cit.]

Shabazz v. State, 229 Ga. App. 465-466 (1) (494 SE2d 257) (1997).

In light of these principles, we find that the evidence was sufficient to support Shepard’s convictions for both offenses.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.


text:
    A99A0895.
    LEDFORD v. THE STATE.
    (516 SE2d 565)
   Judge Harold R. Banke.

Suzie Ledford appeals her convictions of driving without proof of insurance and driving under the influence of alcohol to the extent that it was less safe for her to drive. She claims evidentiary insufficiency, illegal traffic stop, and erroneous admission of testimony.

The arresting officer, Fouts, testified that at approximately 2:00 a.m., he was proceeding northward on a road comprised of four lanes of travel and one center turn lane when he encountered a Lincoln automobile followed by a Mercedes and then a truck traveling in a southerly direction. The Lincoln had completely stopped in the inside lane. The Mercedes was being operated by Ledford at a speed of ten to fifteen mph below the posted speed limit in the outside lane. The truck was also in the outside lane.

As Officer Fouts passed the vehicles, the Mercedes came to a complete stop so as to allow the Lincoln to turn right in front of it into a parking lot. The truck then stopped. After the Mercedes turned into the parking lot, the truck drove away. Deciding to investigate, Fouts made a u-turn, drove his patrol vehicle behind the Mercedes, and asked Ledford to move her car forward so he could move his patrol car out of the roadway.

After approaching the Mercedes and speaking to Ledford, Fouts detected a strong odor of alcoholic beverage emanating from her. He asked to see her license and proof of insurance and had her exit the car so that he could administer an alco-sensor test. Fouts then observed that Ledford was moving very slowly, she was having trouble responding to simple questions, her face was pale and flush, and her eyes were bloodshot. When asked about her drinking, she said she had consumed two glasses of rum. Because the results of the alco-sensor were positive, Fouts proceeded to administer a series of other field sobriety evaluations. Fouts arrested Ledford for DUI in that, according to National Highway Traffic Safety Administration (NHTSA) standards, her performance of each test indicated that she was an impaired driver. Ledford refused consent to a blood test.

After Fouts gave testimony establishing the preceding facts, the prosecuting attorney asked him whether he would have arrested Ledford for DUI if she had refused to perform the field sobriety tests. When the objection to that question was sustained, Fouts was asked how he evaluated Ledford’s driving based on his NHTSA training. Over objection, he was allowed to testify that his evaluation was based on studies conducted by the NHTSA showing a sixty percent probability that a driver operating a vehicle more than ten mph below the posted speed limit and stopping inappropriately in the roadway is impaired. Held:

1. Ledford challenges the sufficiency of the evidence to support her conviction of driving under the influence to the extent that it was less safe for her to drive.

Evidence of both Ledford’s condition and conduct authorized any rational trier of fact to find beyond a reasonable doubt that she was driving under the influence of alcohol to the extent that it was less safe for her to drive. See Mealor v. State, 233 Ga. App. 193, 194 (4) (504 SE2d 29) (1998); compare Webb v. State, 223 Ga. App. 9 (476 SE2d 781) (1996), and cits. The evidence supports Ledford’s DUI conviction under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Ledford contends that the court erred in denying her motion to suppress based upon the illegality of the traffic stop.

Decided April 21,1999

Roland R. Castellanos, for appellant.

The evidence supports the court’s determination that rather than having initiated a traffic stop or other Fourth Amendment seizure, Fouts merely approached Ledford’s stopped vehicle to inquire as to her driving. See McClain v. State, 226 Ga. App. 714, 716 (1) (487 SE2d 471) (1997) and cits. The court was authorized to find that a reasonable person in Ledford’s position would not have believed she was under detention when the officer began to question her. The evidence additionally authorized the court to find that Fouts initiated the investigation based on probable cause to believe that Ledford had impeded the flow of traffic, even though the jury acquitted her on a charge that she had committed that offense. Therefore, a decision by him to stop Ledford’s vehicle would have been reasonable. State v. Bowen, 231 Ga. App. 95-96 (498 SE2d 570) (1998). Denial of the motion to suppress was not clearly erroneous. Leming v. State, 235 Ga. App. 710, 711 (1) (510 SE2d 364) (1998).

3. Finally, Ledford charges the trial court with error in admitting testimony from Fouts concerning the NHTSA studies.

Ledford objected essentially on grounds of hearsay and because the jury was not authorized to use statistical probabilities as a basis for inferring that she was an impaired driver on this occasion. The court overruled the objection.

On appeal, the State argues that Fouts’ testimony was admissible, not to show that Ledford was in fact impaired or intoxicated, but rather to demonstrate the reasonableness of Fouts’ decision to investigate her driving. Alternatively, the State argues that admission of the testimony was harmless. We agree with the latter argument but not the former.

While issues as to the reasonableness of the officer’s actions were relevant to Ledford’s motion to suppress, that motion had been denied by the time this testimony was admitted. Although hearsay information possessed by an officer is admissible to explain his conduct in arresting the defendant, see Posey v. State, 215 Ga. App. 565 (1) (451 SE2d 463) (1994), the State does not argue and we do not find that the testimony was admitted for this purpose.

Nonetheless, in view of the totality of the officer’s testimony concerning Ledford’s behavior and appearance at the time of her arrest, it is highly probable that admission of the complained-of evidence did not contribute to the verdict. Therefore, its introduction did not rise beyond the level of harmless error. See generally Nunnery v. State, 234 Ga. App. 371, 372 (1) (506 SE2d 888) (1998).

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.

Barry E. Morgan, Solicitor, Marsha S. Lake, Katherine L. Kissam, Assistant Solicitors, for appellee.


text:
    A99A0417.
    JONES v. THE STATE.
    (515 SE2d 431)
   Blackburn, Judge.

Alvin Jones appeals from his convictions of armed robbery, kidnapping with bodily injury, burglary and robbery by sudden snatching, following a jury trial. Jones contends the trial court erred by granting the State’s motion to consolidate separate indictments for trial. The trial court determined that the offenses showed a common motive or scheme such that the indictments were properly consolidated for trial. We affirm.

In indictment 9700138 Jones was charged with armed robbery against Herman Prillaman on August 6,1996, and two counts of robbery by sudden snatching against Betty and Linton Day on August 11, 1996. In indictment 9700121, Jones was charged with the armed robbery, kidnapping with bodily injury and burglary upon the person and property of Jack Morris on August 16,1996. The State moved for the consolidation of the indictments for trial on the grounds that the crimes were part of a common plan as they were committed within a ten-day period, Jones and his co-defendants were involved in the crimes and the victims were all elderly. The trial court agreed and consolidated the indictments for trial.

Jones argues that the consolidation of the two separate indictments containing separate counts occurring at different times was erroneous. Jones contends that only separate counts of the same indictment can be consolidated. This contention is contrary to Georgia law. Separate indictments may be joined for trial if it is shown that the offenses charged therein are part of a single scheme or plan. See Swinney v. State, 217 Ga. App. 657, 659 (2) (458 SE2d 686) (1995); Miller v. State, 214 Ga. App. 393 (1) (448 SE2d 20) (1994); Langston v. State, 195 Ga. App. 873 (2) (395 SE2d 74) (1990). While the issue is within the discretion of the trial court, where separate indictments are joined solely because they are of the same or similar character, the defendant is generally entitled to severance. See Swinney, supra.

In this case, however, the trial court determined that the offenses alleged evidenced both a common plan and a common method of operation.

Decided April 1,1999

Reconsideration dismissed April 22,1999.

John B. Cloy, for appellant.

Alvin Jones, pro se.

Stephen D. Kelley, District Attorney, Charles K. Higgins, Assistant District Attorney, for appellee.

The underlying consideration regarding the issue of a joint trial on two or more indictments is whether undue or great risk of prejudice from a joint disposition of charges would result. Where the joinder is based upon the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan, severance lies within the discretion of the trial judge.

(Citation and punctuation omitted.) Langston, supra at 874.

Absent a showing of harm, the trial court’s ruling will not be disturbed. Jones has pointed to no evidence in the record of harm or prejudice. Therefore, we cannot say that the trial court abused its discretion in consolidating the indictments for trial.

Judgment affirmed.

Beasley, P. J, and Barnes, J, concur.

       The State’s motion to consolidate also included a third indictment, but the motion was denied as to that indictment.


text:
    A99A0773.
    SIDWELL et al. v. SIDWELL et al.
    (515 SE2d 634)
   Judge Harold R. Banke.

John L. Sidwell and Dorothy B. Sidwell (hereinafter the “Estate”) brought suit against their son, Jim A. Sidwell and his wife, Cynthia Sidwell for the unpaid balance due on a $50,000 promissory note executed in 1992. The Sidwells failed to timely respond to the complaint. In their untimely answer, the Sidwells pleaded the defense of insufficient service of process based on the fact that the Summons stated Gwinnett County State Court instead of Gwinnett County Superior Court. However, the case caption on the complaint stated “IN THE SUPERIOR COURT OF GWINNETT COUNTY” and on the Sheriff’s Entry of Service, the box was checked next to Superior Court.

On the same day they filed their untimely answer, the Sidwells moved to dismiss the complaint or in the alternative to open default. In separate affidavits in support of their motion to open default, both Cynthia Sidwell and Jim Sidwell admitted that they had been served with the lawsuit. According to Cynthia Sidwell, they did not answer the complaint because they did not want to cause John Sidwell any emotional distress.

After finding that the summons was void, the trial court dismissed the Estate’s complaint. The Estate then commenced this appeal. Held:

1. The Estate contends that the trial court erred in granting the Sidwells’ motion to dismiss. The Estate claims that it was deprived of a judgment to which it was entitled. Our review of this procedural issue is de novo. See State v. Tate, 208 Ga. App. 117,120 (430 SE2d 9) (1993).

By failing to timely respond to the complaint, the Sidwells waived the defense of insufficiency of process. Stout v. Signate Holding, 184 Ga. App. 154, 155 (3) (361 SE2d 36) (1987) (by failing to timely answer complaint, defendant waived right to contest court’s jurisdiction); see McDonough Contractors v. Martin & DeLoach Paving &c., 183 Ga. App. 428, 429 (1) (359 SE2d 200) (1987) (defense of improper venue waived if not brought before default judgment); Brumit v. Mull, 165 Ga. App. 663, 665 (2) (302 SE2d 408) (1983); see OCGA § 9-11-12 (h).

The Sidwells’ argument that the process was void is without merit even had that defense not been waived. Under similar facts where the complaint and sheriff’s entry of service designated the correct court but the summons did not, we found that the irregularity amounted to an amendable defect. Holt v. Scott, 226 Ga. App. 812, 817 (4) (487 SE2d 657) (1997). The defect here was similarly amendable and did not render the process void. Id.; compare Gandy v. Brown, 173 Ga. App. 740, 741 (327 SE2d 850) (1985) (without legal service or the waiver thereof, court lacks jurisdiction to enter any judgment except to dismiss).

When this case lapsed into default after the expiration of the 15-day statutory grace period, the Estate became entitled to verdict and judgment by default as if every item and paragraph of its complaint was supported by proper evidence. OCGA § 9-11-55 (a). Instead, the trial court dismissed the complaint. Although OCGA § 9-11-55 (b) empowers a trial court with broad discretion to open default, that discretion is not without limit. First Union Nat. Bank v. Floyd, 198 Ga. App. 99, 101 (2) (400 SE2d 393) (1990); see Fulton County Hosp. Auth. v. Hyman, 189 Ga. App. 613, 614 (1) (376 SE2d 689) (1988).

By erroneously dismissing the Estate’s complaint, the trial court enabled the Sidwells to circumvent the strict requirements for opening default. At a minimum, opening default requires proof of a providential cause which prevented the filing of the required pleadings, or excusable neglect, or a proper case. OCGA § 9-11-55 (b). A legal excuse for nonappearance is an implicit requirement for opening default. West Court Square v. Assayag, 131 Ga. App. 690, 691 (2) (206 SE2d 579) (1974).

Here, the Sidwells offered no evidence of providential cause or excusable neglect. See Coleman v. Dairyland Ins. Co., 130 Ga. App. 228, 229 (202 SE2d 698) (1973) (ignorance of the significance of the complaint and preoccupation with a critically ill child do not constitute “excusable neglect”). Nor did they show this was a “proper case.” Floyd, 198 Ga. App. at 101 (2) (“Proper case” does not vest a court with unbridled discretion to open default for reasons falling short of a reasonable excuse for failure to answer). Although the Sidwells testified that they did not answer the lawsuit because they did not want to upset the elder Sidwell, they still did not bother to file a response until 25 days after he died. See Brown v. Nat. Van Lines, 145 Ga. App. 824, 825 (245 SE2d 27) (1972) (wilful disregard of process of the court cannot be sanctioned). Such self-serving rationalization, without more, did not constitute a “proper case” within the meaning of OCGA § 9-11-55 (b). See Stewart v. Turner, 229 Ga. App. 119, 121 (2) (493 SE2d 251) (1997). Because the Sidwells did not satisfy any of the three mandatory statutory grounds for opening default, the trial court had no discretion in the matter. Ga. Hwy. Express Co. v. Do-All Chem. Co., 118 Ga. App. 736, 737 (165 SE2d 429) (1968); B-X Corp. v. Fulton Plumbing Co., 140 Ga. App. 131, 132-133 (2) (230 SE2d 331) (1976). We, therefore, reverse the dismissal of this action and remand for determination of the amount of unpaid principal and interest which the Sidwells must pay to the Estate on the promissory note.

2. The Estate contends that the trial court erred in refusing to enforce the parties’ consent agreement. Although the Sidwells acknowledged receiving the proposed consent order as well as signing it and returning it to the Estate’s counsel, the Estate failed to direct our attention to any legally enforceable document in the record which bears the court’s signature and was filed with the clerk. OCGA § 9-11-58 (b). As such, there is nothing to enforce.

Judgment reversed and case remanded with direction.

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

Decided April 2,1999

Reconsideration denied April 22,1999

Moulton & Massey, Terry N. Massey, Kristine M. Tarrer, for appellants.

Gandy, Rice & Sundberg, Leon S. Gandy, Jr., for appellees.

       While the underlying action was pending, John L. Sidwell died and the Estate was substituted as a party.

       Although the Sidwells were served with the complaint on November 14,1997, they did not file an answer until January 30,1998.

       It also requires the payment of costs, a showing under oath, a statement of a meritorious defense, an offer to plead instanter and an announcement of ready to proceed to trial. OCGA § 9-11-55 (b).


text:
    A99A0057.
    BINNS v. THE STATE.
    (516 SE2d 583)
   Andrews, Judge.

Demoris Binns appeals from the judgment entered after a jury found him guilty of trafficking in cocaine. Binns claims the trial court erred in not granting a mistrial after his character was placed into evidence and also erred in not granting his motion to reveal the identity of the confidential informant who set up the drug deal. We find no error and affirm.

1. First, Binns contends his character was impermissibly placed into evidence when the prosecutor said in his opening statement that “[w]e expect the evidence in this case to show that DeMorris Binns, also known as Morris Binns, was a major drug dealer in Wilkes County. And we say this because —.” At that point, defense counsel interrupted and moved for a mistrial. The court said it would give curative instructions to the jury, telling them that the remark was intended to apply only to the case being tried. Defense counsel stated, “I have no problem with that.”

Even assuming that it was error for the prosecutor to say that the evidence would show that a defendant charged with trafficking in cocaine was a major drug dealer, defense counsel agreed to the curative instructions and did not renew his motion for mistrial. “Where the trial judge gives corrective instructions and thereafter counsel fails to request further instruction or renew his motion for mistrial, an enumeration addressed to such ground is without merit.” (Citation and punctuation omitted.) Chambers v. State, 216 Ga. App. 361, 363 (454 SE2d 567) (1995). Counsel’s inaction following the curative instruction constitutes waiver of his motion and gives this Court nothing to review. Id.

2. Next, Binns contends the trial court erred in not granting his request for a mistrial after he claimed an officer’s testimony again impermissibly placed his character into evidence. This officer was part of a surveillance team of the drug buy between Binns and an undercover officer. After the undercover officer told Binns he wanted an ounce and a half of cocaine, Binns said he could probably “take care” of him and left to get the cocaine. After Binns left, one of the surveillance officers followed him. When questioning this officer, the prosecutor asked him why he followed Binns. The officer replied, “We were trying to see where he was stashing the cocaine he had been selling and we were trying to determine the location where he’d been keeping it so we could apply for a search warrant.”

Defense counsel moved for a mistrial, claiming the response clearly implied Binns had been involved in prior drug sales. The trial court gave curative instructions to the jury, telling them not to consider the witness’s last comment and asking if there was anyone who would not be able to do so. There was no response from any of the jurors.

The decision of whether statements which impermissibly place a defendant’s character in issue are so prejudicial as to warrant a mistrial is for the discretion of the trial court. Appellate courts will look at the relevant circumstances to determine if the trial court abused its discretion in denying the motion for mistrial. Some of the factors and circumstances to be reviewed include the nature of the statement, the other evidence in the case, and the action taken by the court and counsel concerning the impropriety.

(Citations and punctuation omitted.) Freese v. State, 196 Ga. App. 761, 762-763 (396 SE2d 922) (1990).

Here, the court gave curative instructions and none of the jurors responded when asked if anyone would be unable to disregard the statement. Moreover, the evidence of Binns’s guilt in the sale of cocaine to the undercover officer was overwhelming.

The cases cited by Binns in support of this claim of error are not persuasive. In Anderson v. State, 252 Ga. 103, 104 (312 SE2d 113) (1984), the court did not give any curative instructions. In Racquemore v. State, 204 Ga. App. 88 (418 SE2d 448) (1992), the denial of a mistrial was reversible error only because the court did not instruct the jury not to consider the prejudicial testimony. Id. at 89. Gearin v. State, 208 Ga. App. 878, 880 (432 SE2d 818) (1993) is also not on point because there was extensive evidence heard on the legally irrelevant crimes and “weak circumstantial evidence” on the remaining count.

Here, curative instructions were given and the evidence against Binns was overwhelming. Therefore, we cannot say the trial court abused its discretion in denying the motion for mistrial.

Neither are we persuaded by Binns’s contention that this testimony, coupled with the prosecutor’s remarks in the opening statement, constituted harmful error. This state does not recognize the cumulative error rule. Bridges v. State, 268 Ga. 700, 708 (492 SE2d 877) (1997).

Decided April 22,1999.

James W. Smith, for appellant.

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

3. The trial court’s refusal to compel the State to reveal the identity of the confidential informant was not error because Binns failed to show the informant was the only person whose personal knowledge would confirm or refute a material defense to the charge of trafficking in cocaine. See Moore v. State, 187 Ga. App. 387, 388 (2) (370 SE2d 511) (1988). See also Wells v. State, 212 Ga. App. 60, 63-64 (441 SE2d 460) (1994).

Although Binns states in his brief that the informant was the only one who could amplify or contradict the officer’s testimony that Binns sold him drugs, the undisputed evidence at trial was that the confidential informant called Binns to arrange a time and place for the drug buy, but was not at the drug buy. It follows that the informant was a “pure tipster,” who neither participated in nor witnessed the offense and, therefore, would have no knowledge of whether or not Binns actually sold drugs to the undercover officer. Thornton v. State, 238 Ga. 160, 165 (231 SE2d 729) (1977).

Judgment affirmed.

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