author: Pope, Chief Judge. Blackburn, Judge, Birdsong, Presiding Judge,

text:
    A93A1047.
    VAN DYKE v. EMRO MARKETING COMPANY.
    (440 SE2d 469)
   Pope, Chief Judge.

Plaintiff/appellant Thomas Van Dyke slipped and fell in a puddle containing a mixture of kerosene and water at a Starvin Marvin convenience store owned by defendant/appellee. Plaintiff appeals from the trial court’s grant of summary judgment in favor of defendant. Plaintiff argues that the trial court erred in granting summary judgment to the defendant because his knowledge of the hazard causing his fall was not equal or superior to defendant’s knowledge. We agree.

This case is controlled by our decision in Flood v. Camp Oil Co., 201 Ga. App. 451 (411 SE2d 348) (1991). In Flood, as here, the plaintiff slipped and fell at a self-service pump located at a convenience store operated by the defendant. The plaintiffs in both cases observed an “oily” spot and later slipped and fell. In Flood, the defendant had constructive knowledge that diesel fuel was on the pavement because defendant had knowledge that one of the pumps would leak diesel fuel occasionally. We held “[a] jury could conclude that the alleged hazard from a leaking diesel fuel pump on wet pavement was greater than the general hazard perceived by plaintiff.” Id. at 452.

In this case the defendant had actual knowledge of the hazard causing plaintiff’s fall. The evidence in this case demands a finding that defendant had superior knowledge of the hazard in question. Plaintiff testified that when he reported his fall to the attendant on duty, she told him, “I thought somebody was going to fall out there, because I saw the man when he did it and he was filling up his kerosene jug and spilled it down where the water hose was, and those two mixtures is some kind of combination, its just like wet ice.” Plaintiff further testified the attendant told him she did not have time to remove the hazardous mixture. Defendant did not refute plaintiff’s testimony in this regard.

Although plaintiff had some knowledge of the hazard causing his fall, his knowledge was not equal to or greater than defendant’s. He testified that he first saw the wet spot before he went inside the store to pay for his gas and fell after he returned to the pump. He described the spot as being darker than it would be if it were just water and looking “oily.” Although plaintiff may have suspected the substance which appeared oily was kerosene because it was floating on top of water in the area where he fell, he did not know the substance was kerosene, as defendant did, until he fell and got kerosene on his shirt. Also, there is no evidence that plaintiff knew the combination of water and kerosene was extremely slippery, as defendant knew.

Judgment reversed.

McMurray, P. J., concurs and also concurs specially. Beasley, P. J., and Cooper, J., concur. Blackburn, J., concurs specially. Birdsong, P. J., Andrews, Johnson and Smith, JJ., dissent.

Blackburn, Judge,

concurring specially.

Although I generally concur with the majority opinion that summary judgment for the defendant was improper, some additional comments may be appropriate.

In this case, the defendant’s superior knowledge of the hazard in question actually appears to be unrefuted. Specifically, after the plaintiff fell, the attendant on duty admitted knowing that an earlier customer had spilled kerosene where the water hose was, and that the combination of kerosene and water was like “wet ice.” Further, although she feared that somebody would slip and fall on the mixture, she did not have time to clean it up. Compared to that attendant’s informed knowledge of the particularly slippery substance, and fear of the specific danger it presented to the station’s patrons, was the plaintiff’s awareness of a wet spot that looked “oily.”

In Flood v. Camp Oil Co., 201 Ga. App. 451 (411 SE2d 348) (1991), where the attendant’s constructive knowledge of the mixture of diesel fuel and rain water on the pavement was compared to the plaintiff’s awareness of wet pavement due to the rain, this court found that a jury question existed as to whether the plaintiff’s knowledge of the hazard was equal to or greater than the defendant’s. Flood is so similar to the instant case as to be indistinguishable.

In my view, the attendant’s specific knowledge of the especially slippery mixture of kerosene and water on the pavement near the fuel pumps, her awareness of the risk it presented to customers, along with her deliberately subjecting patrons to that risk by not taking the time to clean up the substance, comes close to the “clear and convincing evidence” of an entire want of care that raises a presumption of conscious indifference to consequences sufficient to authorize imposition of punitive damages under OCGA § 51-12-5.1. At the minimum, however, when compared to the plaintiff’s knowledge in this case, it certainly cannot be said as a matter of law to be equal to or less than the plaintiff’s knowledge of the hazard. For that reason, summary judgment for the defendant was improper.

I am authorized to state that Presiding Judge McMurray joins in this special concurrence.

Birdsong, Presiding Judge,

dissenting.

Appellant/plaintiff Thomas Van Dyke slipped and fell in a puddle or wet spot containing a mixture of kerosene and water at a convenience store owned by appellee. The majority has concluded that the trial court erred in granting summary judgment to appellee because appellant’s knowledge of the hazard causing his fall was not equal to or superior to defendant’s knowledge. I disagree with both the analysis and the conclusion of the majority.

Appellant testified in his deposition that he did not see the wet spot in question when he got out of his car, but first saw it when he went to take the cap off his gas tank. However, he had testified previously that he “kind of saw it when [he first] got out.” No reasonable explanation was offered for this contradicting testimony; accordingly, the rule of Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) applies. Thus, on summary judgment, this court is required to conclude that appellant saw the wet spot when he got out of his car.

Further, as appellant removed his gas cap, he again observed “the wet spot and the puddle” but did not think anything about it. He thereafter went to the station attendant and paid for his gas; upon his return, he fell as he stepped to the pump to get the pump nozzle. There was nothing blocking his vision of the pavement at that time, nor was there any physical activity or object distracting him; he had his mind on what he was doing and he “wasn’t looking anywhere else but where [he] was reaching.” He “just glanced at the wet spot and continued to do what [he] was going to do.” Appellant did not notice how wet the spot was, although he noticed the discoloration. The spot “looked like an oily spot”; it was “much darker” than normal concrete. (Emphasis supplied.) The spot was about 40 inches long and 20 inches wide. Appellant further testified, exhibiting a specific knowledge, that “water doesn’t penetrate concrete like oil, grease, or kerosene”; “the kerosene was on top of the water, and made the kerosene floatable.” (Emphasis supplied.) The substance that he saw on top of the water was “oily.” (Emphasis supplied.)

Flood v. Camp Oil Co., 201 Ga. App. 451 (411 SE2d 348) is distinguishable. In Flood the plaintiff was merely aware of the usual oily appearance of standing water at a gas station and was attempting to walk carefully when she fell; here the appellant/plaintiff was aware that the substance on top of the water was oily, and that the discoloration caused thereby was “much darker” than normal concrete. He also was aware kerosene floats on water and that water will not soak into concrete like oil, grease, or kerosene. It thus appears, without refutation by other evidence of record, that appellant had or should have had an informed knowledge of both the nature and location of the oily substance before he fell in it. Moreover, appellant made an admission in his deposition that at the time he fell he was not watching where he was stepping but was only looking where he was reaching, that is, looking toward the gas nozzle.

The basis of a proprietor’s liability is not whether he has actual knowledge of the condition or hazard, but whether he has superior knowledge to the invitee; “and if his invitee knows of the condition or hazard, there is no duty on the part of the proprietor to warn the invitee and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does.” (Punctuation omitted.) Hobson v. Kroger Co., 204 Ga. App. 417, 419 (419 SE2d 492); accord O’Brien v. Fairfield Communities, 204 Ga. App. 543 (1) (421 SE2d 723). “This case presents . . . the type of situation . . . where the condition is known equally to the invitee and the host and therefore the invitee must anticipate the danger and avoid it with ordinary care.” (Citations, punctuation and emphasis omitted.) Id. at 544 (1). The equal knowledge rule applies here; appellant is precluded from recovering because of that knowledge.

Also, “when a person has successfully negotiated an alleged dangerous condition on a previous occasion, that person is presumed to have knowledge of it and cannot recover for a subsequent injury resulting therefrom.” (Punctuation omitted.) Hudson v. Quise, Inc., 205 Ga. App. 840, 841 (424 SE2d 37). “It is clear [appellant] had actual knowledge of the condition of [the oily cement] in the vicinity in which she . . . fell.” Id. Moreover, regarding the existing condition of which appellant had actual knowledge, we wish to clarify that the issue is not knowledge of the source of the water and/or petroleum product nor is it knowledge of the degree of slickness of any particular puddle; rather, the issue is knowledge of the existence of that oily puddle, which is claimed to have caused appellant’s fall.

Additionally, examination of Flood, supra, reveals that were it not factually distinguishable, it would have to be overruled. Flood applied a legal analysis contrary to the holding of the Supreme Court of Georgia in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474), and thereby erroneously placed the burden on movant/defendant to “negate” plaintiff’s theory of liability “ ‘by presenting evidence that it had in fact exercised reasonable care in inspecting the premises’ ” (Flood, supra at 453). In Lau’s Corp., supra at 491, it was held: “A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.” (Emphasis supplied.)

The majority correctly concludes that the appellee/defendant was charged with actual knowledge of the slippery spot by virtue of the prior visual observation of that spot and knowledge of its cause by its employee. However, this merely is the first prong of the required judicial inquiry. In Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327), it was held: “[I]n order to state a cause of action in a case where the plaintiff alleges that due to an act of negligence by the defendant he slipped and fell on a foreign substance . . . the plaintiff must show (1) that the defendant had actual or constructive knowledge of the foreign substance and (2) that the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance.” (Emphasis supplied.) Under Lau’s, supra, the movant/defendant was not required to disprove these issues affirmatively, and to the extent that Flood, supra, implies that a pre-Lau’s test should be used to place such a burden on appellant/defendant, it should no longer be followed. But even more compelling is the long-standing precedent of this court construing the requisite elements for liability in a foreign substance case as set forth in Alterman Foods, supra. Thus, in Rush v. Food Giant, 183 Ga. App. 388, 391 (1) (358 SE2d 919), this court, citing Alterman Foods, supra at 623, reaffirmed that: “ ‘(N)ot only must the plaintiff show that the defendant had knowledge of the presence of the foreign substance, but the plaintiff must also show that he was without knowledge of its presence. The customer must exercise ordinary care for his own safety, and must by the same degree of care avoid the effect of the merchant’s negligence after it becomes apparent to him or in the exercise of ordinary care he should have learned of it. He must make use of all of his senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to him.’ ” (Emphasis supplied.) Accord Bowman v. Richardson, 176 Ga. App. 864 (338 SE2d 297) (plaintiff must show that he also was without knowledge of the foreign substance to recover from a slip and fall resulting from a “ ‘ “foreign substance,” ’ such as water on a ramp”); Brownlow v. Six Flags &c., 172 Ga. App. 242 (322 SE2d 548) (trial court did not err in granting summary judgment where, although plaintiff asserted she had no actual knowledge that the ramp was wet until after her fall, she was aware of the general prevailing wet conditions in the vicinity of the raft ride and everyone knows that a damp floor is likely to be a little more slippery than a dry floor; thus, plaintiff was not in the exercise of due care for her own safety). Appellant/plaintiff in the case at bar has admitted in judicio not only his knowledge of the existence of a foreign substance on the concrete but also his knowledge of its “oily” appearance; thus, appellant clearly failed to satisfy the second prong of the Alterman Foods foreign substance test. As to the second prong, the controlling question is not whether a plaintiff has knowledge of the precise cause or nature of the danger, but whether plaintiff knew or should have learned through the exercise of ordinary care of the presence of this (oily) foreign substance (and, per force, his knowledge of the failure of the defendant to clean it up); when that is shown, as a matter of law, the plaintiff cannot recover notwithstanding the actual knowledge and negligence of the defendant, because of plaintiff’s want of ordinary care for his own safety in failing to avoid the danger which an ordinary prudent person in like or similar circumstances would have perceived and avoided.

Decided December 20, 1993

Reconsideration denied January 27, 1994

Brown, Phillips & Scoccimaro, Jimmie H. Brown, for appellant.

Watson, Spence, Lowe & Chambless, David Martyn, Kelley 0. Boswell, for appellee.

Appellant/plaintiff admitted he was aware of the oily substance and, under the precedent of Alterman Foods, supra, he should have used ordinary car to avoid it. Accordingly, I believe the majority erroneously has concluded that the trial court erred in granting appellee/ defendant summary judgment.

I respectfully dissent. I am authorized to state that Judge Andrews, Judge Johnson and Judge Smith join in this dissent.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A93A1858.
    A93A1859.
    A93A1860.
    A93A1861.
    A93A1862.
    A93A1863.
    A93A1864.
    A93A1865.
    A93A1866.
    GRIFFIN v. STATE OF GEORGIA. BLACKSTOCK v. STATE OF GEORGIA. SCHWARTZ v. STATE OF GEORGIA. YOUNG v. STATE OF GEORGIA. CARVER v. STATE OF GEORGIA. LEWIS v. STATE OF GEORGIA. YOUNG v. STATE OF GEORGIA. SAXON v. STATE OF GEORGIA. TURNER v. STATE OF GEORGIA.
    (440 SE2d 483)
   McMurray, Presiding Judge.

The State of Georgia brought these proceedings to condemn approximately $20,000 in cash. The money was seized from the appellants in a gambling raid. The trial court determined that the money should be condemned. These appeals followed. Held:

1. Appellants assert the trial court should have dismissed the condemnation petitions because they recited that the State was proceeding under the controlled substances forfeiture statute (OCGA § 16-13-49), instead of the gambling forfeiture statute (OCGA § 16-12-32). We disagree. The petitions clearly stated that the currency had been used in, or had been intended for use in, a violation of OCGA § 16-12-22, the commercial gambling statute. Thus, construing the petitions so as to do substantial justice, OCGA § 9-11-8 (f), it is clear that each stated a viable claim for the condemnation of currency used in, or intended for use in, unlawful gambling activity. Brown v. Rock, 184 Ga. App. 699 (362 SE2d 480); OCGA § 16-12-32. See generally State of Ga. v. Walls, 202 Ga. App. 899 (415 SE2d 921). Besides, the petitions were amended by the gambling evidence introduced at trial. OCGA § 9-11-15 (b).

2. Viewing the evidence in a light most favorable to the State, as we are bound to do, we find the following: Conducting a raid on a private club, the police found electronic slot machines in a part of the club. Entering a “card room,” the police observed appellants playing poker at a card table. Chips and money were found in trays on the table. One of the appellants identified another appellant as the “banker” and said that the chips were purchased with cash. Various amounts of money totaling approximately $20,000 were found in appellants’ pockets. The amounts of money ranged from a low of $118 to a high of $9,728.

Appellants contend the evidence was insufficient to support the judgment of condemnation. This contention is without merit. “A condemnation proceeding is a civil action wherein the State must meet its burden of proof by a preponderance of the evidence. [Cit.]” Bloodworth v. State of Ga., 185 Ga. App. 880 (366 SE2d 324). The evidence was sufficient to enable the trial court to reasonably infer that the currency seized by the police was “used in, intended for use in, used to facilitate, or derived from or realized through” gambling activity. OCGA § 16-12-32 (b). See generally Izzo v. State, 257 Ga. 109 (356 SE2d 204); Bloodworth v. State of Ga., supra.

Decided January 10, 1994

Reconsideration denied January 27, 1994.

R. David Botts, for appellants.

Thomas J. Charron, District Attorney, Don Phillips, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

Judgments affirmed.

Johnson and Blackburn, JJ., concur.


author: Pope, Chief Judge.

text:
    A93A2007.
    MARSH v. THE STATE.
    (440 SE2d 478)
   Pope, Chief Judge.

Following a bench trial, defendant was convicted of driving while under the influence of alcohol to the extent that it was less safe for him to drive. OCGA § 40-6-391 (a).

Viewing the evidence in the light most favorable to the verdict, it appears that Officer Darrin Reifert came upon a truck parked in the right-hand lane of a street about 10:00 one night. There were no warning lights, and the driver apparently had not even attempted to pull off to the side of the road, even though there was plenty of room to do so. After waiting for five to ten minutes, Reifert saw defendant walk up to the truck with a gas can in his hand. Defendant explained that he had run out of gas and had walked up to a gas station, less than a quarter of a mile away. Defendant had a strong odor of alcohol on his breath, his speech was extremely slurred, he was unable to keep his balance, and he fumbled with his keys and with the cap to the gas can for five to ten minutes before he was finally able to get the gas in the truck. When Reifert asked defendant if he had been drinking, defendant first evaded the question and then said, “Cut me a break; I was just driving to niy girlfriend’s house.” When Reifert persisted, defendant eventually told him he had not consumed any alcohol for two hours prior to their encounter. Defendant failed two field sobriety tests, and an alco-sensor test showed the presence of alcohol. Reifert felt the hood of the car and it was warm, even though it was a March night. Based on his experience and observations of defendant’s speech and actions, Reifert opined that defendant’s motor skills were impaired and that he was a less safe driver, and this opinion was concurred in by two other officers who saw defendant shortly after his arrest.

Decided January 5, 1994

Reconsideration denied January 27, 1994.

Spruell & Dubuc, Brian M. Dubuc, for appellant.

Benjamin F. Smith, Jr., Solicitor, Barry E. Morgan, Aurieanne Sneed, Assistant Solicitors, for appellee.

Defendant argues that the evidence that he was actually driving the truck while intoxicated was purely circumstantial and insufficient to exclude every reasonable hypothesis except that of guilt beyond a reasonable doubt. See Groom v. State, 187 Ga. App. 398 (370 SE2d 643) (1988). Unlike Groom, however, there is substantial evidence in this case that defendant’s ability to drive had been affected by alcohol at the time of his arrest. The fact that he was the driver of the truck was established by the absence of anyone else, his possession of the keys, and his own statement that he was driving to his girl friend’s house. Furthermore, the reasonable possibility that he was not under the influence at the time he left the truck to get the gas was excluded by the degree of his intoxication, the warmth of the hood on a March night, and defendant’s statement that he had not consumed any alcohol for two hours. This evidence was sufficient to allow the trial court to conclude that defendant was guilty of driving under the influence beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.


author: Johnson, Judge.

text:
    A93A2098.
    PAULIN et al. v. OKEHI et al.
    (440 SE2d 486)
   Johnson, Judge.

Gwendolyn and Robert Paulin filed this medical malpractice suit against Dr. Obi Okehi and his professional corporation based on Okehi’s alleged failure to diagnose Gwendolyn Paulin’s tubal pregnancy. Okehi filed a motion for summary judgment along with his own affidavit which stated that he exercised the skill and care required of physicians. In response, the Paulins submitted the affidavit of Dr. William Maxfield who concluded that Okehi acted outside the standard of care exercised by physicians. The trial court granted Dr. Okehi’s motion for summary judgment on the basis that Maxfield’s affidavit was insufficient in that it was based on unsworn and uncertified medical records and that Maxfield had no personal knowledge of the facts of the case.

The Paulins appeal, contending that the trial court erred in ruling that their expert’s affidavit was insufficient.

“In an action for medical malpractice the affidavit of the defendant stating that her care met the appropriate standard of care entitles the defendant to summary judgment if that opinion is not countered by the opinion of another expert.” Augustine v. Frame, 206 Ga. App. 348, 350 (1) (425 SE2d 296) (1992). “OCGA § 9-11-56 (e) requires sworn or certified copies of all documents referred to in an affidavit to be attached to the affidavit. An expert affidavit is insufficient to oppose a motion for summary judgment if the documents on which the affiant relies in forming his opinions are not certified or sworn, even if unsworn copies are attached to the affidavit.” Johnson v. Srivastava, 199 Ga. App. 696, 697 (1) (405 SE2d 725) (1991). Maxfield states in his affidavit that his opinion is based on his own personal knowledge and a review of Gwendolyn Paulin’s medical records. The copies of the medical records referred to in Maxfield’s affidavit are unsworn and uncertified. If Maxfield’s affidavit was based solely upon the facts contained in the medical records, it has no probative value in response to the motion for summary judgment.

The Paulins, however, argue that Maxfield’s affidavit is sufficient because it states that it is based upon his personal knowledge. Where the expert states in his affidavit that “ ‘his opinions are based, at least in part, on his personal knowledge of the facts of the case, and the affiant goes on to state the particulars in which he believes the defendants were negligent,’ the affidavit is sufficient to raise a genuine issue of material fact. . . .” (Emphasis in original.) (Citation and punctuation omitted.) Crawford v. Phillips, 173 Ga. App. 517, 518 (1) (326 SE2d 593) (1985). In Crawford, the affiant stated that the affidavit was based solely upon personal knowledge derived from medical records. In that case we held that because the affiant did not state that his opinion was based upon “his personal knowledge of the facts of the case,” the affidavit was not sufficient. (Emphasis in original.) (Punctuation omitted.) Id. at 518. Compare Hively v. Davis, 181 Ga. App. 733 (353 SE2d 622) (1987) (affidavit sufficient where affiant stated that he had personal knowledge of the facts of the case and his opinion was based not only upon the unsworn medical records but also upon his own examination and treatment of the plaintiff); Hayes v. Murray, 252 Ga. 529 (314 SE2d 885) (1984) (affidavit “based on the affiant’s personal knowledge of the facts in the case as well as his review of the unattached medical records” was sufficient).

As was the case in Crawford, the affiant in this case does not state that he has any personal knowledge of the facts of the case. In fact, it is clear from his affidavit that Maxfield’s opinion is derived solely from his review of the unsworn, uncertified medical records. Accordingly, the affidavit in this case was not sufficient to create an issue of material fact. Crawford, supra at 518-519. “While our determination of the non-sufficiency of [Maxfield’s] affidavit is based upon what may appear to be a technical analysis of the language utilized in that affidavit, we find that such analysis is mandated by the requirements of OCGA § 9-11-56 (e).” Crawford, supra at 518.

Decided January 18, 1994

Reconsideration denied January 27, 1994

Sutton & Associates, Berrien L. Sutton, Hallman & Stewart, Ronald W. Hallman, for appellants.

Knight & Fisher, Joy H. Fisher, for appellees.

Finally, the Paulins contend that Maxfield’s opinion should be considered because it is not only supported by the medical records but also by the facts admitted by Okehi. They contend that Okehi’s admissions provide a sufficient factual basis for the opinions offered by the expert, and that therefore a material issue of fact is presented. We have examined the record and do not agree that Okehi made any admissions which support Maxfield’s opinion. The trial court therefore properly granted Okehi’s motion for summary judgment.

Judgment affirmed.

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


author: Beasley, Presiding Judge.

text:
    A92A0793.
    POSS et al. v. DEPARTMENT OF HUMAN RESOURCES.
    (441 SE2d 101)
   Beasley, Presiding Judge.

In Poss v. Dept. of Human Resources, 206 Ga. App. 890 (426 SE2d 635) (1992), we held in Division 1 that the court did not err in granting the department’s motion for summary judgment on plaintiffs’ derivative negligence claim, but we held in Divisions 2 through 6 that the court erred in granting the department’s motion for summary judgment on plaintiffs’ direct negligence claim. On certiorari, the Supreme Court reversed our holding with respect to plaintiffs’ direct negligence claim. Ga. Dept. of Human Resources v. Poss, 263 Ga. 347 (434 SE2d 488) (1993). Accordingly, our original judgment is vacated with respect to Divisions 2 through 6 of our opinion, and the judgment of the Supreme Court is hereby made the judgment of this court. The trial court’s grant of the Department’s motion for summary judgment is affirmed in toto.

Judgment affirmed.

Pope, C. J., McMurray, P. J., Birdsong, P. J., Cooper, Andrews, Johnson, Blackburn and Smith, JJ., concur.

Decided January 27, 1994.

Robert H. Benfield, Jr., for appellants.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, William M. Droze, Assistant Attorney General, for appellee.


text:
    A93A2060.
    THE STATE v. PETERS.
    (440 SE2d 515)
   Beasley, Presiding Judge.

The State appeals from an order granting defendant’s motion in limine, as permitted by OCGA § 5-7-1 (4). Defendant is charged by accusation with operating a motor vehicle while under the influence of alcohol to the extent that it was less safe for him to drive, OCGA § 40-6-391 (a) (1), driving with a blood alcohol concentration of 0.10 grams or more, OCGA § 40-6-391 (a) (4), and driving with a suspended license, OCGA § 40-9-8.

He filed the pre-trial motion to exclude the results of a state-administered intoximeter test, on the ground that he was not properly advised of the law of implied consent, OCGA § 40-6-392 (a) (4). The question is whether the State proved otherwise, as it has the burden of proving compliance. McElroy v. State, 173 Ga. App. 685, 686 (3) (327 SE2d 805) (1985).

The arresting officer was the sole witness at the hearing. He testified that at approximately 2:00 a.m., he received a radio communication to be on the lookout for a possible intoxicated driver operating a 1987 Mustang automobile, tag number FEL 850, at a specified last known location. He saw and stopped the car, which defendant was driving. It was then 2:29 a.m.

He asked defendant for his driver’s license and asked whether he had been drinking. Defendant replied that the only alcohol he had consumed was cough medicine. The officer asked him to step out of his car and perform a series of field sobriety tests. When he was unable to pass most of them, the officer informed him “he would be placed under arrest and that we would have to take him to jail and have to go through the process.” The officer asked him to submit to a blood alcohol test but he responded that he was afraid of needles. Defendant appeared faint and collapsed onto the ground several times. An ambulance was summoned but defendant declined to be taken to a hospital. The officer instead transported him to the police precinct where an intoximeter test was administered.

The only evidence proffered with respect to the implied consent warning is the officer’s testimony on direct examination in response to the query: “When was the first time that you asked him to give a breath test?” He stated: “That was at the stop, just prior to him passing — blacking out. I originally asked him to take a blood test which he said he was afraid of needles and that it was just totally impossible. So, then, I reread the implied consent and requested he take a breath test which would be more in lines with what, again, he felt he could do. The breath test was performed at [the police p]recinct.” The officer was then asked: “And when was the first time that you read the implied consent warning to the defendant?” He responded: “Be at 3:15.”

Concluding that the State failed to present any evidence that defendant was advised of his right to request an independent test of his choosing, the trial court ordered that the test results be excluded from evidence at trial.

“[W]here a law enforcement officer requests a person to submit to a chemical test because of acts alleged to have been committed while operating a motor vehicle under the influence of alcohol or drugs, and the officer arrests that person on this ground, OCGA § 40-6-392 (a) (4) . . . requires that the officer inform him at the time of arrest of his right to an independent chemical analysis to determine the amount of alcohol or drugs present in his blood.” (Emphasis omitted.) Perano v. State, 250 Ga. 704, 708 (300 SE2d 668) (1983). The officer’s sworn testimony that he has fulfilled the duty to so advise the person is a prima facie showing that the obligation imposed by the statute has been met. Snelling v. State, 176 Ga. App. 192, 193 (1) (335 SE2d 475) (1985). Failure to give the advice renders the results of the state-administered test inadmissible in evidence. State v. Tosar, 180 Ga. App. 885, 887 (350 SE2d 811) (1986). Accord Vandiver v. State, 207 Ga. App. 836 (1) (429 SE2d 318) (1993); State v. Dull, 176 Ga. App. 152, 154 (335 SE2d 605) (1985); Pruitt v. State, 203 Ga. App. 125 (2) (416 SE2d 524) (1992).

The State had written notice of defendant’s intent to raise the affirmative defense of noncompliance with OCGA § 40-6-392. At the close of the evidence, defendant argued that the State failed to show that he was properly advised of the statute’s requirements. Realizing this deficiency the State sought to recall the officer, but the court sustained defendant’s objection and refused to allow the evidence to be reopened.

In Nelson v. State, 135 Ga. App. 212 (217 SE2d 450) (1975), we explained the rationale for the then newly enacted law of implied consent. “Under the former law . . . , a person arrested for DUI did not have a right to have an additional test made at the time of his arrest. [Cit.] Under the present law, this right is established. The state’s ‘justifiable failure or inability to obtain the additional test’ must logically be preceded by the [defendant’s] request for same. And the sine qua non of his request for the additional test would be his knowledge of his right to it. How is he to know of this right? Ordinarily, a person is presumed to know the law and his rights secured thereby. [Cits.] But where the statute itself provides that a person ‘shall’ be advised of his rights under the law, the legislature obviously meant to abrogate this presumption and replace it with the requirement that notice be given. Thus, it was necessary, under this statute, for the arresting officer to notify the appellant of his right to have an additional test made . . . [and] that this right be made known to the defendant at the time of his arrest. ... In the absence of the advice, the intoximeter test results are inadmissible.” Id. at 213.

Decided January 27, 1994.

Gerald N. Blaney, Jr., Solicitor, Richard E. Thomas, Scott A. Drake, Assistant Solicitors, for appellant.

C. Alan Mullinax, Robert L. Waller III, for appellee.

The State’s failure to establish that defendant was apprised of his right to an independent test of his own choosing precludes admission of the intoximeter results. Compare Snelling, supra; Pruitt, supra at (2).

Judgment affirmed.

Cooper and Smith, JJ., concur.


author: Birdsong, Presiding Judge.

text:
    A93A2424.
    SANDIFER et al. v. LONG INVESTORS, INC.
    (440 SE2d 479)
   Birdsong, Presiding Judge.

Appellant/plaintiffs Gail W. Sandifer and Linda G. MatthewsSandifer appeal the order of the superior court granting summary judgment to appellee/defendant Long Investors, Inc., registered owner of Chateau Villa Apartments. Held:

1. Appellant Gail Sandifer testified by way of deposition that he did not make any arrangements to inform “anyone at Chateau Villa Apartments” as to exactly how he could be contacted while he and his wife were out of town, or on what dates he would be at a given location. Any evidence in conflict with this testimony and offered by appellants without reasonable explanation therefor, whether in affidavit or deposition form, is subject to the rule of Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680).

2. Appellants’ first four enumerations of error are without merit.

(a) Appellants assert the trial court erred in granting summary judgment to appellee, because appellee waived the right to demand payment of rent by the first of the month by its prior conduct. Appellant Gail Sandifer concedes that the landlord was not paid any rent during the entire months of April and May 1990. Appellants’ reliance on Arnold v. Selman, 83 Ga. App. 145, 149 (3) (62 SE2d 915) is misplaced. Assuming arguendo the record supports a finding of an initial waiver of right to require rent payment on the particular day it is due, nothing in Arnold, supra, enables a tenant to avoid paying rent for a substantial period of time after the rent is due under the lease. Assuming appellee waived its right to have the rent paid promptly on the first of the month, it did not by the prior conduct established in this record waive its right to have the rent paid within a reasonable time period after its due date. Under the circumstances of record, a substantial and unreasonable period of time elapsed without the rent being paid, particularly in view of the “time of the essence” rental payment clause in the lease. There was no waiver of the right to demand payment within the meaning of Arnold, supra.

Additionally, the notice sent by certified mail to appellants’ apartment provided that, regarding rent due, appellants had “three (3) days from the date of this letter to comply with the terms of said lease or to remove yourself and possessions from the premises.” The notice also expressly stated that “it is the intention of [appellee] to insist upon strict terms of the lease.” Yet, not only did appellants fail to pay the April rent within three days, they did not pay the May rent either. See Haynie v. Murray, 74 Ga. App. 253 (39 SE2d 567). A letter of notice that tenant must surrender possession and quit the premises if rent due and owing is not paid within three days of the date of notice is a sufficient notice of demand for possession under OCGA § 44-7-50 (see Twin Tower &c. v. American Marketing &c. Corp., 166 Ga. App. 364, 366 (2) (304 SE2d 493)), and also was sufficient under the notice provisions of the lease.

(b) Appellant claims that the notice demanding possession was inadequate as it failed to provide adequate notice that the waiver would be revoked as of April 1990. As concluded in Division 2 (a) above, there existed no waiver of payment of rent on the date of issuance of the writ of possession in favor of appellee and against tenant appellants.

(c) A demand for possession is a condition precedent to the landlord’s right to dispossess the tenant summarily under OCGA § 44-7-50. See Metro Mgmt. Co. v. Parker, 247 Ga. 625 (278 SE2d 643). A demand for possession was made. However, appellants claim it was not an adequate demand because appellee knew appellants were not residing at the rental address to which the demand was sent and therefore was aware appellants could not make a timely response to the demand. Examination of existing case law fails to reveal any established procedure for giving of demand for possession pursuant to OCGA § 44-7-50. Under certain conditions a demand upon a tenant to deliver possession may be oral. Compare Jackson v. Hardin, 74 Ga. App. 39, 41 (3) (38 SE2d 695). We find that pursuant to OCGA § 44-7-50 there must be delivery, actual or constructive, of the demand for possession; in the absence of a written instruction to the contrary from a private tenant to the landlord which includes an effective, optional method of demand, an inference will arise that, at the time the original lease was executed, tenant consented to constructive delivery of a demand for possession by the due mailing thereof to the tenant at the address of the leased residence. This is consistent with the previous finding of this court that “[t]he logical place to serve a resident, private tenant would be at the leased residence.” Davis v. Hybrid Indus., 142 Ga. App. 722, 724 (1) (236 SE2d 854). Appellants, having failed as a matter of law to rebut the inference of consent to constructive delivery of demand for possession, we conclude that an adequate statutory delivery was made of the demand letter in this case. Moreover, we note that, pursuant to the notice provisions of the lease, lessee expressly assented to the giving of any notice required by law or contract by first-class mail to lessee’s residence address as listed in the contract, delivery to a person then occupying the rental apartment, posting on the rental apartment door, or by persona] delivery to lessee. Suffice it to say, however, that notwithstanding the lease provision, the procedure utilized by appellee/lessor in giving demand notice was not in violation of existing statutory requirements.

(d) After the dispossessory warrant was executed, the county marshal posted a copy of the summons and dispossessory warrant on the door of appellants’ residence, the leased apartment, and duly mailed a copy of these documents to appellants at the same address. Although service by tacking an affidavit and summons in a dispossessory action may not be reasonably calculated to afford notice when the tenants do not reside at the leased premises, Davis v. Hybrid Indus., supra, such is not the case before us. The record reveals appellants leased and used the premises as their residence and that they made, according to their own admissions, a somewhat prolonged sojourn from their leased residence apparently for reasons of employment. There exists a rebuttable presumption of continuity that appellants’ residence, having been duly established, is presumed to continue until the contrary is established. Esco v. Jackson, 185 Ga. App. 901, 906 (2) (366 SE2d 309); compare Platt v. Nat. Gen. Ins. Co., 205 Ga. App. 705, 710 (2) (423 SE2d 387); see OCGA § 24-4-21. There exists no evidence of record adequate to destroy this presumption. As appellant in effect elected to maintain their leased residence, we conclude that service by tacking on said apartment door and due mailing to the same address was reasonably calculated, under all the attendant circumstances, to apprise the interested parties of the pendency of the dispossessory and afford them opportunity to present objections. See generally Pelletier v. Northbrook Garden Apts., 233 Ga. 208, 211 (210 SE2d 722). Appellants’ claim of inadequate service of process is without merit. OCGA § 44-7-51.

Additionally, assuming arguendo, appellants had been denied a due process right of reasonable notice of service or notice of demand for possession, we further find that, as a matter of law, appellants by their pattern of conduct waived any existing right to such notice. See Mauldin v. Weinstock, 201 Ga. App. 514, 520 (4) (411 SE2d 370).

3. Applying the standards of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474), we find that the trial court did not err in granting summary judgment to appellee/defendant as to the issue of tortious interference of contract. Appellants aver that appellee, by its conduct, interfered with its contract for a furniture purchase with Haverty’s furniture company thereby causing Haverty’s to repossess this furniture. The applicable elements of tortious interference are revisited in St. Mary’s Hosp. of Athens v. Radiology Prof. Corp., 205 Ga. App. 121 (2) (421 SE2d 731). Although a claim for tortious interference is not limited to conduct that causes a breach of a claimant’s contract with a third party, but also may be asserted for conduct that makes the performance of that contract more difficult, nevertheless in such a circumstance the claimant “still must prove that the defendant directly induced adverse behavior by the third party with respect to the third party’s contract with the claimant, not merely that the defendant breached its contract with the claimant and that an element of damage resulting from that breach was the impairment of the claimant’s performance of its contract with the third party.” (Emphasis omitted.) Id. at 125. Appellee and Haverty’s deny that appellee engaged in any such direct inducement. Appellants have failed to introduce any direct evidence of a direct inducement of Haverty’s by appellee. In view of the uncontradicted and unimpeached evidence produced by appellee in support of its motion for summary judgment as to the issue of tortious interference, the record demonstrates no genuine issue of material fact. Here, any circumstantial evidence from which appellants’ claim of tortious interference might be inferred is purely speculative. “ ‘ “(A)n inference cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjecture or possibility.” ’ ” Green v. Sams, 209 Ga. App. 491, 498 (1) (433 SE2d 678). Moreover, in passing upon a motion for summary judgment, even a finding of fact which may be inferred but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists. Rowell v. McCue, 188 Ga. App. 528, 531 (373 SE2d 243).

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.

Decided January 5, 1994

Reconsideration denied January 28, 1994.

Bernard & Associates, Patricia D. Bernard, for appellants.

Sharon W. Ware & Associates, James F. Cook, Jr., for appellee.


text:
    A93A2481.
    MOBLEY v. FLOWERS et al.
    (440 SE2d 473)
   Birdsong, Presiding Judge.

Plaintiff Hubert Mobley filed suit against James N. Flowers and Colquitt Electric Membership Corporation (CEMC), for damages for injuries allegedly received as a result of a severe electrical shock caused by the combined negligence of Flowers and CEMC. The trial court granted summary judgment to Flowers on grounds of lack of proximate cause and statutory employer immunity, and granted summary judgment to CEMC on grounds of lack of proximate cause. Mobley filed this appeal. Held:

1. The evidence shows beyond any genuine issue of material fact that appellant’s employer, Scruggs Concrete Company was merely a seller and deliverer of goods to the general contractor Flowers at the site of a house being built by Flowers. Where an injured plaintiff not only delivered door and window lintels but was to fabricate them on the site, the Supreme Court held: “A mere contract for the sale of goods does not make either the buyer or seller or both a ‘contractor’ as used in OCGA § 34-9-8. In order to make a party to the contract for the sale of goods such a ‘contractor,’ the contract to sell must be accompanied by an undertaking ... to render substantial service in connection with the goods sold. [Cit.] . . . The fact that [the seller] fabricated the lintels on [the contractor’s] construction site does not, in and of itself, make appellee’s employer a subcontractor of appellant.” Gray Bldg. Systems v. Trine, 260 Ga. 252, 253 (391 SE2d 764).

Scruggs Concrete merely performed the usual services of a seller of brick, and appellant merely delivered the bricks; he did much less than the appellant in Gray Bldg. Systems was to do. Gray Bldg. Systems controls over Carver v. Jasper Constr. Co., 183 Ga. App. 485 (359 SE2d 183). Appellant’s employer was not a subcontractor of Flowers, so Flowers was not the statutory employer per OCGA § 34-9-11 and is not immune to tort liability.

2. However, the trial court correctly granted summary judgment to Flowers on the issue of proximate cause. Reasonable minds cannot differ on the conclusion that Flowers’ negligence, if any, did not cause appellant’s injury. Collins v. Altamaha EMC, 151 Ga. App. 491, 492 (260 SE2d 540).

On defendants’ motions for summary judgment, the evidence is adjudged in the light most favorable to the respondent, Mobley. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). In an affidavit in response to the Flowers’ motion for summary judgment, appellant stated that he was a truck driver and delivery man for Scruggs Concrete, which was a seller and supplier of materials ordered by Flowers; on September 11, 1990, appellant delivered bricks to the site where Flowers’ crew was building a house; the house site was in the area of a small abandoned trailer park; there was a CEMC power line extending from a dirt road to the abandoned trailer park in a field; when appellant delivered the bricks, Flowers’ workers were working on the top of the house framing within eight feet of the power line; at the same time, CEMC workers with trucks bearing CEMC insignia were working along the dirt road erecting new poles and lines and were moving the line; it appeared to appellant that the electricity had been cut off because CEMC workers were moving the line and because Flowers’ employees were working on top of the house within eight feet of the line.

Appellant states further in affidavit that at no time did anyone warn him that the power line was “live”; he was told by Mr. Flowers where to put the bricks, and to place the bricks in that spot appellant had to position his truck under the power line. He got out of the truck and, using a remote control switch, operated the boom on the truck to lower the bricks; the switching device was on the end of a long insulated cord; appellant was standing on the ground and had no idea that electrical power could come down the boom, through the truck, and out the switch line. The switch had not previously malfunctioned but on this occasion the boom went up instead of down.

On Flowers’ motion for summary judgment we accept appellant’s sworn statement that Mr. Flowers did not warn him about the power line. Lau’s Corp., supra. Construing the evidence most favorably to appellant, all reasonable indicia were that the electrical current had been cut off, and Flowers knew it had not been cut off when he instructed his own workers to work within eight feet of it and when he told appellant to place the bricks in a position which brought appellant in proximity to it. However, appellant conceded that if the switch on his truck boom had not malfunctioned he would not have been injured. “The causal connection between an original act of negligence and injury to another is not broken by the ‘intervening’ act of a third person, if the nature of such intervening act was such that it could reasonably have been anticipated or foreseen by the original wrongdoer.” Williams v. Grier, 196 Ga. 327, hn. (2a) (26 SE2d 698). The foreseeability of an intervening act is a question upon which reasonable minds might differ (Collins v. Altamaha EMC, supra at 492); in this case, reasonable minds cannot differ in the conclusion that Flowers could not foresee that the boom on appellant’s delivery truck would malfunction and come into contact with the wire, causing injury to appellant.

Decided January 3, 1994

Reconsideration denied January 28, 1994

John T. Croley, Jr., Jay, Sherrell & Smith, Robert E. Sherrell, for appellant.

Simpson, Gray & Carter, Ralph F. Simpson, Melanie B. Cross, for appellees.

3. As to CEMC, summary judgment was proper. A power company is not liable merely because a malfunctioning machine brings a worker in contact with a live wire. See Beamon v. Ga. Power Co., 199 Ga. App. 309, 311 (404 SE2d 463). Power companies are charged with the duty to exercise ordinary care in construction and maintenance of its wires. Id. at 310-311. Appellant contends questions of fact are raised by the presence of a live wire and of CEMC workers relocating that wire at a building site at an abandoned trailer park in the middle of a field where it might reasonably be inferred that the power had been cut off. “High voltage lines must be maintained ‘in such a manner and at such a location as not to injure persons who might be reasonably expected to come in contact with such lines.’ Carden v. Ga. Power Co., 231 Ga. 456, 457.(202 SE2d 55).” (Emphasis supplied.) Beamon, supra at 311. See also Mathews v. Ga. Power Co., 175 Ga. App. 441 (333 SE2d 631); Douberly v. Okefenokee Rural EMC, 146 Ga. App. 568 (246 SE2d 708). Although appellant could reasonably be expected to come on the premises and even to come close to the wire, reasonable minds cannot differ that appellant was not authorized to assume the power line was “dead.” Moreover, no genuine issue of material fact remains that the malfunctioning boom on appellant’s truck was the cause of his injury and that CEMC could not reasonably foresee this intervening act and the resulting injury. Collins v. Altamaha EMC, supra.

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.


author: Andrews, Judge.

text:
    A93A2087.
    DEPARTMENT OF HUMAN RESOURCES v. CHAMBERS.
    (441 SE2d 77)
   Andrews, Judge.

Pursuant to a divorce decree in which Peggy Lee Chambers was awarded custody of her minor children, the father, Deryle Chambers, was ordered to pay child support through the Georgia Department of Human Resources (DHR). Mr. Chambers failed to make the required payments, accrued a substantial arrearage, and filed for protection under Chapter 13 of the Federal Bankruptcy Act.

DHR ex rel. Ms. Chambers filed a proof of claim in the bankruptcy action based on the child support arrearage which had accrued prior to the bankruptcy. After Mr. Chambers objected to the proof of claim, the bankruptcy judge entered an order lifting the automatic stay of 11 USC § 362 “for the limited purpose of allowing the Superior Court ... to conduct [a hearing] ... to determine the exact amount of pre-petition child support due. ...” The order further provided that the stay otherwise remained in effect, it being the intention of the bankruptcy court “that the issue of payment, collection or enforcement of the judgment return to this Court for further proceedings.” Pursuant to the limited lift of stay, the superior court entered a judgment determining that Mr. Chambers owed $16,395 in pre-petition child support arrearage. However, in addition to determining the amount owed, the superior court also ordered that Mr. Chambers pay $4,600 of the arrearage under the Chapter 13 plan at not less than $90 per month; that $11,795 of the arrearage be paid outside of the plan at the rate of $325 per month, but that payment of this amount be delayed until one of the parties’ two children residing with Ms. Chambers reached the age of 18, at which time interest would begin to accrue on the unpaid amount. The superior court further ordered that “[t]o the extent that Mr. Chambers complies with the terms of this order, then [Ms. Chambers] shall not commence any further contempt citations, attachments, garnishments, or other collection actions. This would include that [Ms. Chambers] would not apply for an abandonment warrant unless no payment has been made within thirty days of the time she wants to take the warrant.”

We granted the application of DHR ex rel. Ms. Chambers for a discretionary appeal from the order of the superior court. DHR claims the superior court erred by: (1) ordering Ms. Chambers not to initiate any other enforcement or collection actions for child support; (2) ordering the postponement of arrearage payment until after a child reached the age of 18; and (3) ordering that interest accrue on the postponed arrearage only after a child reached age 18.

1. We first address whether or not the issues in this appeal have been rendered moot. The record reflects that after the notice of appeal was filed in this case, the trial court entered an order consented to by the parties which amended the payment terms of the previous court order from which this appeal was taken, and purported to settle the child support dispute between the parties. “The filing of the notice of appeal operates as a supersedeas and deprives the trial court of the power to affect the judgment appealed, so that subsequent proceedings purporting to supplement, amend, alter or modify the judgment, whether pursuant to statutory or inherent power, are without effect.” Brown v. Wilson Chevrolet-Olds, 150 Ga. App. 525, 529 (258 SE2d 139) (1979). A trial court is empowered to dismiss a notice of appeal where the questions presented have become moot, but this was not done in conjunction with the consent order. See Attwell v. Lane Co., 182 Ga. App. 813, 814 (357 SE2d 142) (1987).

Despite the ineffectiveness of the agreement as a court order, the parties clearly agreed to settlement terms rendering the issues in this appeal moot. Though technically the terms are contrary to the previous existing court order, they are obviously not contrary to the terms the trial court and the parties intended to incorporate in a valid consent order, nor do they constitute a consent by Ms. Chambers to a reduction, remission or other relief of the father’s child support payments in violation of the trust imposed on her to see that court ordered child support is applied solely for the benefit of her children. Stewart v. Stewart, 217 Ga. 509, 510 (123 SE2d 547) (1962); Law Office of Tony Center v. Baker, 185 Ga. App. 809, 810 (366 SE2d 167) (1988). Nevertheless, Ms. Chambers argues that the appeal is not moot because the consent order was without effect, while Mr. Chambers contends otherwise. Despite their previous agreement to settle the case on the terms in the consent order, the consent order is not a binding court order, and there remains the possibility of future litigation between the parties over the issues raised in the appeal. Compare American Cyanamid Co. v. Carter, 164 Ga. App. 538, 539-540 (298 SE2d 276) (1982). Accordingly, we conclude the appeal is not moot.

2. Initially, we note the superior court order, to the extent it did more than determine the amount of child support arrearage under the limited lift of stay, may have exceeded the jurisdiction of the superior court in violation of the automatic stay provisions of 11 USC § 362. Carver v. Carver, 954 F2d 1573, 1576 (11th Cir. 1992); Banks v. Wells, 256 Ga. 164 (344 SE2d 652) (1986). “Under 28 U.S.C. § 1334 (d), the federal district court [acting through the bankruptcy court] has exclusive jurisdiction over all the debtor’s property as of the date of filing in bankruptcy [court] and over all property of the estate.” Carver, supra at 1577. In a Chapter 13 proceeding this includes the debtor’s property at the commencement of the case, and property and earnings the debtor acquires after filing and before disposition of the case. Id. at 1577. Even as to child support, a non-dischargeable debt, the exception from the stay in 11 USC § 362 (b) (2) for the collection of child support applies only to property that is not property of the estate. Id. at 1577. However, a party may obtain relief from the stay under 11 USC § 362 (d).

The order of the superior court prohibiting various alternative attempts by Ms. Chambers to collect the child support appears to prohibit some actions which would be void in any event under the automatic stay while the Chapter 13 plan is pending. Nevertheless, since a creditor is entitled to obtain relief from the automatic stay, the superior court’s order would prohibit these actions even if relief from the stay was granted during the bankruptcy. Also, under a Chapter 13 plan, post-petition earnings of the debtor not devoted to plan payment may not constitute post-confirmation property of the estate protected by the automatic stay. In re McKnight, 136 B.R. 891, 894 (Bkrtcy.S.D.Ga. 1992); In re Henry, 143 B.R. 811, 814 (Bkrtcy.W.D.Pa. 1992). Moreover, even the bankruptcy stay provisions do not prohibit pursuing criminal sanctions against a debtor such as abandonment or criminal contempt for failure to obey a court order. In re Bible, 110 B.R. 1002, 1005 (Bkrtcy.S.D.Ga. 1990); Ward v. Ward, 261 Ga. 659 (409 SE2d 518) (1991). Thus, even assuming the superior court order is at least partially void as a violation of the automatic stay, it has a continuing practical effect on Ms. Chambers’ rights relating to child support.

Decided January 28, 1994.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, William M. Droze, Assistant Attorney General, Cynthia H. Frank, Staff Attorney, Charles E. Clark, for appellant.

Contrary to the superior court’s order, various remedies for enforcement and collection of a child support order, including contempt, execution by writ of fi. fa., and garnishment, may generally be pursued either singly or concurrently. Brookins v. Brookins, 257 Ga. 205, 207 (357 SE2d 77) (1987); Herring v. Herring, 138 Ga. App. 145, 146 (225 SE2d 697) (1976); Bautz v. Best, 170 Ga. App. 219, 220 (316 SE2d 589) (1984). The superior court erroneously curtailed Ms. Chambers’ rights to pursue various collection or other enforcement actions for child support. The court also erred by ordering postponement of payment on the child support arrearage until a child reached the age of 18. “[M]inor children are entitled to support during their minority.” (Citations and punctuation omitted.) Conley v. Conley, 259 Ga. 68, 70 (377 SE2d 663) (1989). However, as to the court’s ruling on postponement of interest, we find no error. The rule has been stated in contempt proceedings for failure to make child support payments that “the court is vested with discretion in determining whether interest should be added to the arrearages found to be due.” (Citation and punctuation omitted.) Leroux v. Avera, 192 Ga. App. 210 (384 SE2d 274) (1989).

Judgment affirmed in part and reversed in part.

Pope, C. J., and Birdsong, P. J., concur.

McFarland & Associates, Robert P. McFarland, for appellee.


text:
    A93A2345.
    In the Interest of A. L. L. et al., children.
    (440 SE2d 517)
   Andrews, Judge.

Lankford, the natural father of two daughters, Am. L. L. and Al. L. L., appeals the judgment of the juvenile court which found the children deprived and placed temporary custody in Koziarz, the natural mother and former wife of Lankford.

1. Although not raised by the parties, we first consider the issue of our jurisdiction and whether this matter is one involving child custody, requiring an application to appeal. OCGA § 5-6-35 (a) (2).

Lankford and Koziarz were divorced in May 1992 and legal custody of the two daughters was placed in Lankford with regularly scheduled visitation by Koziarz. In November 1992, Koziarz filed a document with the juvenile court which formed the basis for the issuing of a petition by the court intake officer alleging that the children were deprived. Based on that petition, the juvenile court held a deprivation hearing on February 25 and 26, 1993. Although not contained in the record before us, an earlier hearing apparently had been held at which “probable cause” regarding deprivation was found by the court and Lankford was directed not to physically discipline the children and to engage in family counseling.

“A deprivation proceeding is to determine whether the child is a deprived child. OCGA § 15-11-33 (a). If the child is found to be deprived, the court is authorized to allow the child to remain with his parents, or other custodian, or transfer temporary legal custody to another individual or agency. OCGA § 15-11-34 (a). Although the juvenile court is authorized to determine who will exercise custody over a ‘deprived’ child, the proceeding itself is to determine whether the child is deprived and is not an action brought to decide custody matters concerning the child.” (Emphasis supplied.) Anderson v. Sanford, 198 Ga. App. 410, 411 (401 SE2d 604) (1991).

Therefore, this court has jurisdiction to consider this appeal.

2. In his first enumeration, Lankford contends that the juvenile court was without jurisdiction to consider the issue of a modification of the final divorce decree by a change in the custody of the children.

This, however, is not what the juvenile court considered. The issue before it was whether or not the children were deprived. “The juvenile court had exclusive original jurisdiction over the deprivation proceedings, OCGA § 15-11-5 (a) (1) (C), and it had the authority to order disposition best suited to the needs of the children, [including the transfer of temporary legal custody] OCGA § 15-11-34 (a) (2) (A).” Edgar v. Shave, 205 Ga. App. 337, 338 (1) (422 SE2d 234) (1992).

3. Lankford contends the court erred in finding him in contempt and fining him $50 for his violation of the rule of sequestration “in the midst of the case in chief.”

At the beginning of the trial, which was conducted by the judge without a jury, Lankford, through his trial counsel, invoked the rule of sequestration and this request was joined by the prosecutor. OCGA § 24-9-61.

Lankford testified and during cross-examination was asked if his mother had been beaten by his father. Part of the State’s theory was that Koziarz had been abused by Lankford and that abusing husbands were more likely to become abusing parents. There was expert testimony to this effect and also to the effect that children who grew up in abusing families were more likely to abuse than those who did not. Lankford denied any such abuse. Later, his mother testified in his behalf. As she was being cross-examined, she acknowledged that she had spoken to Lankford and his trial attorney outside the courtroom after he had testified and before she testified. She was asked: “Q. What did [Lankford] tell you was said in here today about you? A. Only thing he said that they accused — my husband had been accused of beating me and that is not so.” The prosecutor stated “Judge, we have a little problem here.” The court agreed and asked Lankford if he had discussed his testimony with his mother. Lankford denied “discussing” it with her, but acknowledged that “[s]he heard me say something to the effect that my dad was accused of being a wife beater.” His mother acknowledged having heard that and the judge asked Lankford if he had understood the rule of sequestration. He stated that “You said not to discuss testimony at all, but I was not discussing it with her.” After further inquiry, the court found Lank-ford in contempt for violating the rule and fined him $50.

Pretermitting the question of whether the rule prohibits only witnesses being examined in court in the presence of each other or also prohibits out-of-court communications between witnesses, compare Boyd v. State, 168 Ga. App. 246 (5) (308 SE2d 626) (1983) with Lackey v. State, 246 Ga. 331 (5) (271 SE2d 478) (1980) and O’Kelley v. State, 175 Ga. App. 503 (1) (333 SE2d 838) (1985), Lankford acknowledged awareness of the court’s direction that testimony should not be discussed among witnesses. Such a ruling was within the discretion of the court. Barber v. Barber, 257 Ga. 488 (1) (360 SE2d 574) (1987).

Juvenile courts are authorized to punish for contempt for disobedience. of an order of the court or for obstructing or interfering with its proceedings. OCGA §§ 15-11-62; 15-1-4.

Lankford argues that he was denied due process because the contempt matter was taken up in the midst of the case-in-chief and no rule nisi issued providing for notice of the charges and an opportunity to be heard. At the time the matter of violating the rule was brought up, no objection was voiced by Lankford or his counsel to proceeding at that time with the inquiry. In fact, Lankford defended himself by arguing that what he engaged in was not “discussing” the testimony. “[Wjhere a party charged with contempt voluntarily appears and defends against the contempt proceedings, it is not required that he be served with a rule nisi. [Crocker v. Crocker, 132 Ga. App. 587, 590 (1) (208 SE2d 602) (1974).]” Mijajlovic v. State, 179 Ga. App. 506, 507 (1) (347 SE2d 325) (1986). Therefore, there is no merit to this argument.

While conducted at the time the incident was discovered instead of waiting until after the case-in-chief concluded, the opportunity provided for defense complied with due process requirements and the error, if any, in not waiting until completion of the case-in-chief was harmless. See Dowdy v. Palmour, 251 Ga. 135, 141 (2) (304 SE2d 52) (1983); In re Spruell, 200 Ga. App. 218, 229 (407 SE2d 451) (1991) (special concurrence); Moody v. State, 131 Ga. App. 355, 358 (206 SE2d 79) (1974).

The evidence was sufficient for a finding of contempt. Arnold v. McKibbins, 210 Ga. App. 262, 265 (6) (435 SE2d 685) (1993); In re Gouge, 206 Ga. App. 462 (425 SE2d 882) (1992).

4. The fifth and sixth enumerations are considered together and assert that the court erred in not sua sponte recusing itself after finding Lankford in contempt and expressing opinions regarding his truthfulness which, “were they expressed before a jury, would have been grounds for mistrial.”

The latter contention presents nothing for our review since this trial was not conducted before a jury and no motion for mistrial was made.

No authority is cited for the proposition that the court should sua sponte recuse itself and we are aware of none. No motion to recuse having been made, there was no error. Stoddard v. Tax Assessors, 173 Ga. App. 467, 469 (3) (326 SE2d 827) (1985).

5. The third and fourth enumerations are that the court erred by not articulating the “clear and convincing evidence” standard in its order and in various evidentiary rulings. The seventh enumeration is that the court abused its discretion “in not giving sufficient weight to the testimony of appellant and of appellant’s witnesses, which testimony conflicted with testimony of appellee’s witnesses.” These enumerations are considered together.

“ ‘Our responsibility on appeal is not to weigh the evidence and give a de novo opinion as to the weight of the evidence but merely to determine if there is sufficient evidence to authorize the trial court’s judgment.’ [Cit.]” Thomas v. State, 173 Ga. App. 810, 812 (2) (328 SE2d 422) (1985).

“ ‘ “The factfinding and weighing of evidence is to be done in the trial court under the clear and convincing evidence test. The reviewing court is to defer to the lower court in the area of factfinding and should affirm unless the appellate standard of review, here the rational factfinder test, is not met.” ’ [Cit.]” In the Interest of H. M. T., 203 Ga. App. 247, 249 (416 SE2d 567) (1992).

The standard of clear and convincing evidence bound the trial court, even though those words are not stated in the order. “The trial judge is presumed to know the law [cit.] and presumed to ‘faithfully and lawfully (perform) the duties devolving upon it by law.’ [Cit.]” Windom v. State, 187 Ga. App. 18, 19 (2) (369 SE2d 311) (1988); In re R. L. Y., 181 Ga. App. 14, 16 (351 SE2d 243) (1986). “[T]his court will not presume the trial court committed error where that fact does not affirmatively appear.” Smith v. Manley, 96 Ga. App. 158, 161 (99 SE2d 534) (1957). See Fortson v. Fortson, 195 Ga. 750, 758 (3) (25 SE2d 518) (1943).

Likewise, none of the evidentiary rulings constitute reversible error.

As to the allegation that the court did not adequately value Lankford’s evidence, as stated above, weighing the evidence is the province of the factfinder and this court will not second guess it when the appellate standard is met. Here, that standard is met since we conclude that a rational factfinder could have found the children deprived. Lankford had physically abused Koziarz in the past, causing her to be taken to the emergency room on more than one occasion. While in his custody, the children were placed on 27 days restriction for having spoken to Koziarz in a public place. Koziarz and her relatives were not allowed to speak with the children when they called. Am. L. L. was thrown on the couch by Lankford and held down by his knees while he struck her, resulting in a large bruise on the back of her leg. Instances of inadequate medical attention for the children were related. Also, Al. L. L. reported that Lankford’s nephew had played with her “privates” while she was in Lankford’s custody. The evidence was sufficient.

Decided January 28, 1994.

John W. Knapp, Jr., for appellant.

Alan C. Manheim, Lewis P. Perling, for appellee.

Judgment affirmed.

Pope, C. J., and Birdsong, P. J., concur.

       “[I]n all cases either party shall have the right to have the witnesses of the other party examined out of the hearing of each other. The court shall take proper care to effect this object as far as practicable and convenient, but no mere irregularity shall exclude a witness.”

       This conclusion is based on the record before us. Additionally, without objection from Lankford, the trial judge spoke privately with the two children in chambers.


text:
    A93A2605.
    BLIGE v. THE STATE.
    (440 SE2d 521)
   Andrews, Judge.

Prince Leon Blige was tried and convicted of rape and burglary. The victim testified at trial that on November 14, 1990, at about 3:00 a.m. she was asleep on the couch at her residence and was awakened by a man standing over her who was touching her. He told her to get off the couch and led her into the bedroom where he raped her. She later identified Blige as her assailant.

An expert witness testified that a DNA sample taken from semen removed from the victim matched that of DNA found in Blige’s blood. Another expert witness testified that the probability of selecting an unrelated individual of the population from the same race who had a matching genetic profile as Blige was one in eight million.

The victim from a prior attempted rape involving Blige also testified.

1. In his first enumeration of error, Blige claims the trial court erred in denying his motion for a change of venue based on negative publicity which he had received. He claimed that his trial was unfair because of negative publicity both he and his family had received from the local news.

A hearing was held, during which several news directors of local television stations testified. The first, David Winstrom, testified that he had presented numerous stories about Nathaniel Blige, appellant’s brother, but had not presented any stories regarding Prince Blige.

Douglas Weathers, another news director, testified next. He stated that he had presented three stories on three of the Blige brothers. He recalled that a story ran regarding one of Prince Blige’s brothers who cut off a lady’s finger. Weathers also recalled that a story was presented regarding the fact that all of the brothers were involved in criminal activity.

Weathers stated that there were also stories regarding Prince Blige. He recalled a statement a judge of recorders’ court had made with respect to a charge against Prince Blige for shoplifting, in July 1990, that he was not going to set bond for Prince Blige because he was “sick and tired of these Blige brothers coming before him one after the other in criminal activities.” That statement was the subject of a story the station ran.

Mark Taylor, a third news director testified. He stated that his station had presented two stories on Prince Blige, one of which included the recorders’ court judge’s statement.

A writer for the Savannah newspaper, Jan Skutch, was also called as a witness. He recalled stories regarding the Blige brothers. He testified that one story involving Prince Blige was entitled “Jury Indicts the Meanest Blige in the Rape of a Pregnant Woman.” He recalled that several stories had run regarding the different Blige brothers and the crimes they had committed.

The trial court denied Blige’s motion; in its order doing so, the court stated that after hearing the evidence and after the individual voir dire of 62 prospective jurors: “the defendant has failed to prove that the pretrial publicity is so pervasive, saturating and inflammatory that he should be entitled to a presumption of prejudice. . . . Therefore, the test for a change of venue is whether prospective jurors have formed fixed opinions as to the defendant’s guilt or innocence based upon reports in the media. Baker v. State, 245 Ga. 657 [266 SE2d 477] (1980); Berryhill v. State, 249 Ga. 442 [291 SE2d 685] (1982). Of the 62 prospective jurors who were individually questioned, 16 were disqualified. Of those disqualified, one was disqualified due to health reasons and one was disqualified by virtue of her employment with the district attorney’s office. Thus, only 14, or 22.58% were disqualified due to fixed opinions of defendant’s guilt or innocence. This is consistent with a lack of prejudicial publicity. See Butler v. State, 231 Ga. 276 [201 SE2d 448] (1973) (36% dismissal rate corroborates an absence of prejudicial publicity); Coleman v. State, 237 Ga. 84 [226 SE2d 911] (1976) (49%); Collier v. State, 244 Ga. 553 [261 SE2d 364] (1979) (20%) [overruled in part on different grounds in Thompson v. State, 263 Ga. 23 [426 SE2d 895] (1993)]; Blanks v. State, 254 Ga. 420 [330 SE2d 575] (1985) (27%); Chancey v. State, 256 Ga. 415 [349 SE2d 717] (1986) (42.3%).”

Here, Blige claims that the trial court erred in denying his motion in that he could not receive a fair trial in Chatham County because of his family name. He argues that the jury was not impartial and that his Sixth Amendment rights were violated.

“The inquiry into a request for a change of venue is two pronged. First, the court must consider whether the atmosphere in the community is so inherently prejudicial due to pretrial publicity that the defendant cannot receive a fair trial. . . due to the prejudice of individual jurors.” Lemley v. State, 258 Ga. 554, 556 (372 SE2d 421) (1988). The trial court did not err in finding that there was no inherently prejudicial situation in this matter. “There [was] no evidence of a total inundation of the judicial process by the media at this trial.” (Citations and punctuation omitted.) Chancey, supra at 430.

The second prong of the two-part test is to consider evidence of actual prejudice on jurors on voir dire. Blige failed to include a transcript of the voir dire in the record and thus failed to meet his burden of showing error. See McKenzie v. State, 188 Ga. App. 571, 572-573 (2) (373 SE2d 830) (1988). Moreover, assuming arguendo that this contention was not waived, we find no error in the trial court’s conclusion that no actual prejudice existed so as to mandate a change of venue. See Chancey, supra. We find no abuse of the trial court’s discretion in this case. Berryhill, supra at 445.

2. In his second enumeration of error, Blige contends that the trial court erred in denying his motion in limine which sought to exclude evidence regarding deoxyribonucleic acid (“DNA”) of semen samples taken from the victim which matched the profile of DNA in a sample of Blige’s blood. Blige claims that the same procedure was used for calculating as in Caldwell v. State, 260 Ga. 278 (393 SE2d 436) (1990), and that such conclusion was based on an unreliable data base. He claims that the expert witness here did not adhere to the statistical requirements outlined in Caldwell.

This argument is without merit. Prior to the jury hearing evidence regarding the probability statistics, Dr. Baird the director of forensic and paternity at Life Codes Corporation testified. He stated that no significant changes in the presentation of calculations had been made at Life Codes since Caldwell. He stated that the calculated frequency of occurrence of this DNA in the black population, assuming that the relevant population was in Hardy-Weinberg equilibrium, was about one in eighty-one million. Dr. Baird testified that downsizing the numbers as in Caldwell — that is, not using any “population theory” — the probability of selecting an unrelated individual of the population from the same race who had a matching genetic profile was one in eight million. He stated that in the white population the frequency of occurrence, assuming the Hardy-Weinberg equilibrium, was one in three trillion; with downsizing, the probability was one in one hundred and thirty million. As in Caldwell, in the instant case the trial court concluded that the State could use the more conservative figures, but was not permitted to use the figures which were based on the assumption that the population was in Hardy-Weinberg equilibrium. Compare Greenway v. State, 207 Ga. App. 511, 515 (4) (428 SE2d 415) (1993). We find no error in the trial court’s denial of the motion in limine.

Decided January 28, 1994.

Willie T. Yancey, Jr., for appellant.

Spencer Lawton, Jr., District Attorney, David T. Lock, Assistant District Attorney, for appellee.

3. Finally, Blige claims the trial court erred by denying his motion in limine to exclude evidence of similar crimes which placed his character into issue. Blige filed a written motion which specifically moved to exclude evidence of his conviction for attempted rape; the State subsequently gave notice of its intent to introduce prior similar crimes. The trial court ruled that the evidence of Blige’s guilty plea to the charges of attempted rape and burglary was admissible. In doing so, the trial court found that the similar transaction evidence was introduced for a proper purpose, that there was no improper motive of injecting the issue of Blige’s character and that there was a sufficient connection or similarity between the crime for which Blige was being tried and the independent crime to which he pled guilty.

Here, Blige claims that the prejudicial effect outweighed any probative value, that the cases were dissimilar since the prior one involved a criminal attempt to commit rape and the instant case was a rape case, and, finally, that there was no evidence to show that he committed the independent act.

Blige’s arguments are without merit. The State made the affirmative showings required under Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991); see also Carter v. State, 205 Ga. App. 885 (424 SE2d 81) (1992); Mozier v. State, 207 Ga. App. 264 (427 SE2d 551) (1993). The identity of Blige in the prior crime, which was never in issue, was re-established through the in-court identification by the victim of the prior attack and through a certified copy of his prior conviction. There were numerous similarities between the crime charged and the independent crime. The fact that one case involved a charge of attempted rape and the instant matter involved a charge of rape does not alter our conclusion. See generally Moore v. State, 207 Ga. App. 897 (429 SE2d 340) (1993).

Judgment affirmed.

Pope, C. J., and Birdsong, P. J., concur.

       As explained in Caldwell, “[i]n 1908, Dr. Hardy and Dr. Weinberg formulated a binomial equation used to calculate the frequency of an allele [a fragment of DNA] in a population from sample population data. This equation is valid only if there is random mating in the population, if there is no inbreeding, if there is no mutation, and if the population is effectively infinite.” Id. at 289, n. 6.


text:
    A94A0123.
    WATTS v. THE STATE.
    (440 SE2d 700)
   Birdsong, Presiding Judge.

Coleman David Watts appeals his judgment of conviction and sentence for aggravated child molestation.

The victim’s mother testified she observed appellant molesting her daughter (appellant’s two-year-old great-granddaughter) by manually spreading the child’s vagina open and performing an act of oral sodomy upon her; the child’s panties and pants were pulled down to her ankles. A medical doctor testified he examined the victim and found that, although her hymen was intact, the child’s vagina was “a little bit abnormally large” and she had a very small rectal tear. Held:

1. Appellant asserts the trial court erred in admitting testimony under the similar transaction rule, as the admitted extrinsic offenses lacked sufficient similarity. See generally Williams v. State, 261 Ga. 640 (409 SE2d 649) and Stephens v. State, 261 Ga. 467 (405 SE2d 483). Appellant has not asserted that the trial court failed to make the affirmative findings on the record required by Williams, supra at 642 (2b); accordingly, this issue is not before us on appeal. Court of Appeals Rule 15 (c) (2); Moore v. State, 207 Ga. App. 897, 898-899 (1) (429 SE2d 340).

An extrinsic transaction witness testified that when she was eight years old, appellant enticed her and four other girls into his trailer and put his hands inside her pants and started fondling her; appellant offered the witness $10 to go to bed with him. Another such witness, a granddaughter of appellant, testified that when she was four years old appellant induced her and a young friend into his van and, after bribing the girls with gum, pulled down their pants and fondled their vaginas; this conduct occurred on more than one occasion.

“[T]he issue of admissibility of extrinsic transactions has never been one of mere similarity. It is, rather, relevance to the issues in the trial of the case. Depending upon the purpose for which the extrinsic offense is offered, the state may be required to prove a high degree of similarity between relevant characteristics of the extrinsic offenses and the charged crimes, or it may only have the burden of showing a logical connection between crimes which are essentially dissimilar.” (Citations and punctuation omitted.) Brockman v. State, 263 Ga. 637, 640 (436 SE2d 316). In this regard, “[t]he exception to the general rule that evidence of independent crimes is inadmissible has been most liberally extended in the area of sexual offenses.” Johnson v. State, 242 Ga. 649, 653 (3) (250 SE2d 394). And, “[t]he sexual abuse of young children, regardless of the sex of the victims or the nomenclature or type of acts [or other conduct] perpetrated upon them, is of sufficient similarity to make the evidence admissible.” Oller v. State, 187 Ga. App. 818, 820 (2) (371 SE2d 455); accord Hall v. State, 204 Ga. App. 469, 471 (1) (419 SE2d 503), citing Boynton v. State, 197 Ga. App. 149 (1) (397 SE2d 615). “The reason for this rule rests not only in the legal difficulty encountered with a child victim but because a sexual offense committed against a young child requires a special ‘lascivious motivation or bent of mind which generally will have some probative value in determining an accused’s motivation or bent of mind in a subsequent trial for child molestation.’ ” Adams v. State, 208 Ga. App. 29, 32 (2a) (430 SE2d 35), citing Oller, supra; compare Hall, supra at 470-471. Pretermitting the issue of “similarity,” these extrinsic sexual offenses against young girls per force have “logical connection” with the sexual offense perpetrated against appellant’s young great-granddaughter and of which appellant was indicted and convicted. Appellant’s enumeration is without merit.

Decided January 28, 1994.

Michael A. Corbin, for appellant.

Jack O. Partain III, District Attorney, Kermit N. McManus, Assistant District Attorney, for appellee.

2. Appellant’s claim of insufficiency of evidence is without merit. 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; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offense of aggravated child molestation. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Cooper and Blackburn, JJ., concur.


text:
    A93A1983.
    In the Interest of J. K. D., a child.
    (440 SE2d 524)
   Beasley, Presiding Judge.

This is an appeal from a juvenile court order finding that appellant, a 15-year-old, committed the designated felony act of aggravated assault, OCGA § 15-11-37 (a) (2) (B), and is delinquent. The court imposed restrictive custody in accordance with OCGA § 15-11-35 (a) (4). Appellant contends that he was entitled to a favorable adjudication and challenges the sufficiency of the evidence to support the judgment.

“In juvenile proceedings, ‘the standard of proof on charges of a criminal nature is the same as that used in criminal proceedings against adults — proof must be beyond a reasonable doubt. (OCGA § 15-11-33 (c)); (Cits.)’ [Cit.]” In the Interest of J. T. M., 200 Ga. App. 636, 637 (409 SE2d 256) (1991).

Viewing every presumption and inference in favor of the adjudication as we must, id., the evidence showed that appellant and two other youths were in a vehicle en route to a convenience store to purchase gas. The youths had divided among them the proceeds of the robbery of a shoe store earlier that day. The driver, W. J. T., “mentioned” robbing the convenience store. They pulled up to the gas pumps and appellant and W. J. T. entered the store. Appellant paid for the gas and both youths returned to the car.

About two minutes later W. J. T. re-entered the store alone, wearing his jacket hood pulled over his head. He picked up a package of candy and placed it on the counter. As the store manager rang up the purchase, W. J. T. announced that this was a stick-up and demanded that he open the cash drawer. The manager observed about one-and-one-half inches of the barrel of a gun which the youth had concealed under his jacket and was pointing at him. The manager grabbed for the gun and the perpetrator ran from the store, followed by the manager. He was unable to apprehend the youth, but observed him run to the car, which had been moved from the gas pump to a side street where it was not visible through the store window.

The manager returned to the store and telephoned the police. When asked whether he was afraid of the assailant, the manager testified: “No sir. I was mad. I wasn’t afraid of anybody at that point.” Although the weapon proved to be a toy gun, the victim was unaware of that fact at the time of the assault.

An off-duty deputy sheriff happened to be in the area of the side street where the car was parked. He observed W. J. T. exit the car, leaving the door open. His suspicions were aroused because the car was parked half on and half off the road facing oncoming traffic. He saw the youth place a black hood over his head and run around toward the front of the convenience store while reaching under his jacket as if for a weapon. Appellant and the other passenger remained in the car.

Shortly thereafter, the deputy observed W. J. T. running from the convenience store to the car. The deputy identified himself as a law enforcement officer and told W. J. T. to freeze, but he ignored the warning and got into the car and drove off. The deputy got into his truck and pursued the car, which apparently went off the road.

The deputy chased two of the occupants on foot. The third youth, D. M. F., surrendered. Police assistance arrived and searched the area for the other two youths. Appellant was located one street away from the disabled vehicle, attempting to hide under a motor home. The officer drew his gun and told appellant to get on the ground, which appellant did. He was advised of his Miranda rights and asked where the gun was. He replied that he did not have it, that it belonged to the individual wearing the black jacket. Appellant stated, “I didn’t know he was going to rob the store.”

Decided January 31, 1994.

McGarity Law Offices, Thomas D. Carr, for appellant.

Tommy K. Floyd, District Attorney, James L. Wright III, Assistant District Attorney, for appellee.

1. In enumerations of error one and two, appellant contends that the State failed to meet its burden of proving (1) that he committed an act which placed the alleged victim in reasonable apprehension of immediately receiving violent injury, and (2) that use of a toy gun constituted an assault which is likely to result in bodily injury.

The petition charged that appellant committed the delinquent act of aggravated assault in violation of OCGA § 16-5-21 (a) (1) (a designated felony under OCGA § 15-11-37), in that he made an assault upon the store manager with the intent to rob. Simple assault (OCGA § 16-5-20 (a) (2)) requires proof of an act which “places another in reasonable apprehension of immediately receiving a violent injury.” On the other hand, aggravated assault “does not need the [commission of a simple assault] to make it complete.” Sutton v. State, 245 Ga. 192, 193 (2) (264 SE2d 184) (1980). It is “the commission of assault with the intent to accomplish the more serious crime of . . . robbery. . . . No more need be alleged or proved.” Scroggins v. State, 198 Ga. App. 29, 31 (1) (401 SE2d 13) (1990). Thus, the victim’s lack of fear does not eviscerate the offense. Secondly, appellant was not charged with aggravated assault with a deadly weapon under OCGA § 16-5-21 (a) (2), so the fact that a toy gun was used is not fatal. The offense of aggravated assault with intent to rob under OCGA § 16-5-21 (a) (1) was complete when the perpetrator assaulted the victim and demanded his money. The elements of the charged offense were proven against appellant as a party to the crime.

2. Applying the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), there was sufficient evidence to find that appellant was delinquent by reason of his acts, which if committed by persons 17 years of age or older would constitute the crime of aggravated assault.

Judgment affirmed.

Cooper and Smith, JJ., concur.

       A motion for directed verdict, made by appellant in this case, is inappropriate when the court rather than a jury is the factfinder, because only a jury returns a verdict. Lee v. State, 201 Ga. App. 827 (1) (412 SE2d 563) (1991).


text:
    A93A2527.
    WHITE v. THE STATE.
    (440 SE2d 527)
    Decided January 31, 1994.

      Ronald W. Young, for appellant.
    William C. White, pro se.

      Richard H. Taylor, Solicitor, íot appellee.
   Johnson, Judge.

William C. White appeals from the trial court’s entry of judgment on his plea of nolo contendere to the misdemeanor charge of sexual battery. White contends that the court erred in refusing to allow him to withdraw his plea because it was not knowingly and voluntarily given. Although there is no evidence in the record that White made a motion to withdraw his plea in the trial court, “it is well established that a claim of involuntary plea may be raised for the first time on appeal. [Cit.]” Lawson v. State, 204 Ga. App. 796 (1) (420 SE2d 600) (1992). “Once the question of the validity of a guilty [or nolo contendere] plea has been raised, the burden is on the State to show that the plea was intelligently and voluntarily entered. The State may accomplish this end by two means, (1) showing on the record of the guilty plea hearing that the defendant was cognizant of all the rights he was waiving and the possible consequences of his plea; or (2) fill a silent record by use of extrinsic evidence that affirmatively shows that the guilty plea was knowing and voluntary.” (Citation and punctuation omitted.) Dean v. State, 177 Ga. App. 123, 125 (2) (338 SE2d 711) (1985). The record in the instant case does not contain a transcript of the plea hearing. The State, however, is not required to provide a transcript since “[a] defendant must request that a hearing on a misdemeanor charge be reported and transcribed, unless the trial court on its own motion orders that this be done. [Cits.]” Gilbert v. City of Manchester, 204 Ga. App. 422, 423 (1) (419 SE2d 487) (1992). The record does contain the written plea signed by White, wherein he acknowledges that he was represented by an attorney, was not under the influence of drugs or alcohol, was informed of all his rights, voluntarily and intentionally waived those rights, understood the charge against him and that the court could impose a maximum sentence of 12 months imprisonment plus a $1,000 fine. Based on this evidence, the State has met its burden of showing that White’s plea was voluntarily and intelligently given. See Lawson v. State, supra at 797-798 (2). The trial court committed no error in accepting White’s plea.

Judgment affirmed.

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