text:
    A00A1937.
    FONTAINE v. SIDELINES IV, INC. et al.
    (538 SE2d 137)
   Eldridge, Judge.

On August 13, 1996, Steven Katzenstein made an oral agreement with Charles E. Fontaine to borrow $100,000 at 18 percent per annum, repayable in 60 equal installments with a promissory note secured by the pledge of all stocks issued to Katzenstein in a corporation to be formed, Sidelines IV, Inc., which would lease and operate a sports bar. They further agreed that Fontaine would have the option to loan the defendants an additional $175,000 at 15 percent per annum, repayable in 60 months in equal installments; that if a second loan was made by Fontaine, then he would receive a consulting agreement for the sports bar of $50,000 per annum or 2.5 percent of the gross sales, whichever was greater, for the duration of the lease. This was memorialized in the executed Loan Agreement.

On August 14, 1996, Katzenstein received the $100,000 and executed this contract captioned Loan Agreement, which contained all the provisions and terms of their first loan, possible second loan, and the Promissory Note. However, Katzenstein refused to execute two additional contracts; one was only captioned “Agreement,” and the other contract was captioned “Consulting Agreement.” Katzenstein refused to sign the additional contracts, because the percentage for the consulting fee had been increased from what they had previously agreed as this amount.

Fontaine sued the defendants for specific performance, breach of contract, and damages. Fontaine sought to force the defendants to make the second loan with him and to execute the Consulting Agreement. Defendants raised the defense of the statute of frauds and moved to dismiss. The trial court granted the motion as to the Consulting Agreement and the Agreement, but denied the motion as to the breach of the Loan Agreement, which issue went to the bench trial as a breach of contract. At a bench trial, the trial court found that the Loan Agreement did not require that the defendants borrow exclusively from Fontaine or that defendants had to seek the second loan with Fontaine so that there was no breach of contract when the defendants never asked Fontaine for a second loan or when the defendants obtained a second loan from other sources. We affirm the trial court.

1. Fontaine contended that the trial court erred in finding that the defendants did not breach the Loan Agreement. We do not agree.

In bench trials, the findings of the trial court will not be set aside unless clearly erroneous and regard must be given to the trial court’s opportunity to assess the credibility of the witnesses. OCGA § 9-11-52 (a). Moreover, the clearly erroneous test is in essence the same as the any evidence rule and appellate courts cannot disturb the findings of fact by the trial court if there is any evidence to support them.

(Citation and punctuation omitted.) Thomas v. Dept. of Transp., 232 Ga. App. 639, 643 (3) (502 SE2d 748) (1998).

Arguendo only, we assume that the Agreement was properly executed. The Agreement stated that “Fontaine has the option, within eighteen (18) months from this date hereof, to loan Corporation and Steve Katzenstein” $175,000 on terms spelled out in the Loan Agreement. Thus, the Agreement did not require that the defendants ask for a second loan from Fontaine or that a second loan be made exclusively with Fontaine. Neither promised to do anything.

The executed Loan Agreement stated that “[fiender shall have the option, within eighteen (18) months from the date hereof, to loan Borrower an additional” $175,000 in three increments of $50,000. (Emphasis supplied.)

In interpreting a contract, contract construction is a matter of law for the trial court. OCGA § 13-2-1; Early v. Kent, 215 Ga. 49 (1) (108 SE2d 708) (1959); Paulk v. Ellis Street Realty Corp., 79 Ga. App. 36, 41 (52 SE2d 625) (1949). The intent of the parties governs as the cardinal nile of construction. OCGA § 13-2-3; Paul v. Paul, 235 Ga. 382, 384 (219 SE2d 736) (1975). Where there exists no ambiguity and the intention of the parties is clear, the court must enforce the contract as written. OCGA §§ 13-2-2; 13-2-3; Budd Land Co. v. K & R Realty Co., 159 Ga. App. 448, 449 (283 SE2d 665) (1981). The trial court determined that the intent of the parties was clear and unambiguous and that neither party took any action to accomplish a second loan nor were they required to do so.

Neither party promised to do anything in the Agreement, and no other consideration was given by eitlier party. Neither party did anything toward creating or making a second loan that could be considered part performance that would supply mutuality of obligation. Hill Aircraft &c. Corp. v. Planes, Inc., 158 Ga. App. 151, 152-153 (2) (279 SE2d 250) (1981). Therefore, the Agreement lacked mutuality of obligation and did not constitute a valid contract. See Halley v. Harden Oil Co., 182 Ga. App. 784, 785 (357 SE2d 138) (1987); Billings Cottonseed v. Albany Oil Mill, 173 Ga. App. 825, 826-827 (1) (328 SE2d 426) (1985).

Nowhere in either the Agreement or the Loan Agreement are the defendants obligated to borrow $175,000 in additional funds from Fontaine or anyone else. Further, neither the Agreement nor the Loan Agreement prohibits the defendants from making a loan with anyone else. Neither party was obligated to make a loan, because the Agreement did not require either party to do so, and the parties never had a meeting of the minds that the Agreement required the defendants to enter into a second loan with Fontaine. OCGA § 13-1-1; see generally Jackson v. Easters, 190 Ga. App. 713, 714-715 (1) (379 SE2d 610) (1989); Wells v. H. W. Lay & Co., 78 Ga. App. 364, 367 (1) (50 SE2d 755) (1948). Thus, the Agreement as to a second loan is totally lacking in mutuality of obligation, because neither party bound themselves to do anything in the future regarding a second loan that is enforceable as a contract; there was no consideration or mutual promises given. Vester v. Mug A Bug Pest Control, 231 Ga. App. 644 (500 SE2d 406) (1998), rev’d on other grounds, 270 Ga. 407 (509 SE2d 925) (1999); Green v. Johnston Realty, 212 Ga. App. 656 (442 SE2d 843) (1994); Halley v. Harden Oil Co., supra at 785. Defendants were free not to ask for a second loan from Fontaine and could seek a second loan anywhere else. Fontaine had the option to refuse to make a second loan to the defendants if they asked for such. The only thing fixed was the amount of a second loan, if made.

Defendants were under no obligation that imposed upon them the duty to act or refrain from acting that they breached. Therefore, the trial court properly found for the defendants and against the plaintiff.

Decided August 7, 2000

Reconsideration denied August 28, 2000.

Olim & Loeb, Jay E. Loeb, for appellant.

Schulten, Ward & Turner, Irvin L. Ward, Erin S. Stone, Helena K. Katzenstein, for appellees.

2. Fontaine had three contentions regarding the grant of the motion to dismiss based upon the statute of frauds as to the Consulting Agreement. Since executing the Consulting Agreement was specifically contingent upon entering into the second loan and since a second loan was never requested by the defendants or made by the plaintiff, then such issues are moot.

Judgment affirmed.

Blackburn, P. J., and Burnes, J., concur.


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
      A00A0916.

      YOUNG v. THE STATE.

    (538 SE2d 760)
   Miller, Judge.

A jury found Dwayne Young guilty of one count of armed robbery and one count of aggravated assault. The trial court merged the aggravated assault count into the armed robbery count and sentenced him to life without parole under the Georgia recidivist statute. After the denial of his motion for new trial, Young appeals, enumerating as error the general grounds as well as (1) ineffective assistance of counsel, (2) the State's failure to properly notify him of the intent to use his prior convictions in aggravation of punishment, and (3) the denial of due process of law because of a delay in receiving the trial and sentencing transcript. We affirm.

1. Young contends that the evidence was insufficient to sustain his emvictions. The standard of review is whether upon viewing the evidence in the light must favorable to the jury's verdict, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. An appellate court determines only the legal sufficiency of the evidence and does not weigh the evidence or assess the credibility of the witnesses.

Viewed in this light, the evidence showed that Young entered an Eckerd’s store, spoke with a store employee, and shopped for five or ten minutes. During this time the manager of the store returned from the bank and began to make a deposit of cash into a cash box. Young asked the employee for change for a dollar, whereupon the employee asked the manager for change, when Young pulled out a gun and demanded money. Young took money out of the drawer, placed it in an Eckerd’s bag, and began to exit the store. The employee and the manager “moved back because [Young] still had the gun close enough to [their] faces. . . .” While the manager telephoned police, the employee chased Young, catching the attention of a state patrolman who was nearby. After fleeing into a wooded area, Young was apprehended and arrested. The manager’s keys and the missing money were found on the ground near where Young was lying.

Clearly, a rational trier of fact could have found the defendant guilty, beyond a reasonable doubt, of violating both OCGA §§ 16-5-21 (a) and 16-8-41 (a). The two victims identified Young as the man who robbed the store at gunpoint and then fled, still brandishing the gun. Young was arrested less than ten minutes later with the stolen property near his person. At the time of his arrest Young had a gun similar to the one described by the victims. Thus, the evidence sufficed to sustain the conviction.

2. Young contends that he was denied effective assistance of counsel. To prove ineffective assistance, Young must show that (1) his counsel’s performance was deficient, and (2) this deficiency so prejudiced his defense that a reasonable probability exists that the trial’s result would have been different but for that deficiency. Unless a defendant can make both showings, the conviction or sentence did not result from a breakdown in the adversary process that rendered the result unreliable. The trial court’s finding that an accused has not been denied effective assistance will be affirmed on appeal unless that determination is clearly erroneous.

Young’s counsel was appointed two weeks prior to trial after Young dismissed his former counsel. He contends that the defense strategy raised by his attorney at trial was not a strategy that would relieve him of the charges and was thus ineffective. Trial counsel testified that the defense presented was the only defense Young provided to him to counteract eyewitness testimony to the crime and that he believed the defense “feasible.” The actions of trial counsel here were a matter of trial strategy and do not fall outside the wide range of professional conduct.

Young further argues that his counsel (1) never discussed the theory of the case with him until trial began, (2) failed to interview witnesses face to face, and (3) failed to request a continuance. But tactical decisions do not equate with ineffective assistance of counsel. And “there exists no magic amount of time which a counsel must spend in preparation for trial in order to provide a client with adequate counsel. Each case must be judged upon its own circumstances and in light of its own degree of complexity.” Trial counsel testified that previous counsel kept copious notes and “spoon-fed [him] everything,” and that he felt well prepared for trial. He also testified that he met with Young several times on the morning of trial and discussed the case with him on and off during voir dire and on breaks. Young has pointed to no particular complexity in his case. We hold that evidence supported a finding that Young failed to show how his counsel’s performance was deficient. Thus, the court did not clearly err in finding that Young received effective assistance.

3. Young asserts that the State failed to properly notify him of its intent to seek recidivist punishment. He concedes that he received a copy of the Georgia Crime Information Center report and the disclosure statement, but argues that this notice was inadequate in that it (i) did not specify which convictions would be used against him, (ii) referred to OCGA § 17-10-2 instead of OCGA § 17-10-7 (b) (2), and (iii) failed to inform him that he was facing the possibility of life without parole.

The record, however, indicates that Young had proper notice. The disclosure certificate includes Young’s GCIC criminal history, including convictions for armed robbery, and states that all convictions will be used in aggravation of punishment pursuant to OCGA § 17-10-2. Young knew at the time of trial that he would receive life without parole if found guilty of the charges as his counsel explained this to him during the discussion of the plea offer. In evaluating the sufficiency of notice this court places substance over form: “[T]he important requirement was that the defendant be given an unmistakable advance warning that the prior convictions will be used against him at sentencing so that he will have enough time to rebut or explain any conviction record.” Moreover, we find no authority requiring the notice to be pursuant to OCGA § 17-10-7; rather, the notice requirement is outlined in OCGA § 17-10-2.

Decided August 28, 2000

Stephen A. Delaney, for appellant.

Patrick H. Head, District Attorney, Maria B. Golick, Thomas A. Cole, Dana J. Norman, Assistant District Attorneys, for appellee.

Young’s sentence was proper as he received sufficient notice of recidivist punishment.

4. Young contends he was denied due process because his motion for new trial was not heard promptly due to a nine-month delay in receiving the trial and sentencing transcript. The reason for the delay was not evident from the record, nor was there any evidence that the delay was brought to the court’s attention. We discern no prejudice that Young may have suffered due to the delay. He has not suffered any unfair prejudice in the passage of time during his incarceration under a presumptively lawful sentence.

Unless it clearly appears that the delay in filing the transcript prevented the presentation of an adequate appeal or impaired a defense which would otherwise be available to an appellant where a new trial is ordered due to trial error, an appellant has not suffered prejudice which turns a transcript delay into a violation of due process of law.

Therefore, we conclude that there was no violation of due process.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

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

       Dunn v. State, 238 Ga. App. 579 (1) (519 SE2d 503) (1999).

       A person commits aggravated assault when he or she assaults with intent to murder, rape, or rob.

       A person commits armed robbery when, with intent to commit theft, he or she takes the property of another from the person or the immediate presence of another by use of an offensive weapon.

        Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Etheridge v. State, 228 Ga. App. 788, 789 (2) (492 SE2d 755) (1997).

        Strickland, supra, 466 U. S. at 687 (III).

        Johnson v. State, 214 Ga. App. 77, 78 (1) (447 SE2d 74) (1994).

       See Moody v. State, 206 Ga. App. 387, 389-390 (1) (e) (425 SE2d 397) (1992).

        Harper v. State, 232 Ga. App. 224, 227 (2) (d) (501 SE2d 591) (1998).

        Hand v. State, 205 Ga. App. 467, 469 (2) (422 SE2d 316) (1992).

       (Citations and punctuation omitted.) State v. Freeman, 198 Ga. App. 553, 556 (3) (402 SE2d 529) (1991).

        See Armstrong v. State, 264 Ga. 237, 238 (1) (442 SE2d 759) (1994); Andrews v. State, 207 Ga. App. 352-353 (427 SE2d 841) (1993).

       See Cowan v. State, 243 Ga. App. 388, 396 (9) (531 SE2d 785) (2000).

         Graham v. State, 171 Ga. App. 242, 250-251 (7) (319 SE2d 484) (1984).


author: Blackburn, Presiding Judge.

text:
    A00A1001.
    GEORGIA BANK & TRUST v. CINCINNATI INSURANCE COMPANY.
    (538 SE2d 764)
   Blackburn, Presiding Judge.

Georgia Bank & Trust (the bank) appeals the trial court’s order denying its motion for summary judgment and granting the Cincinnati Insurance Company’s (the insurance company’s) motion for summary judgment. The bank filed the underlying action after the insurance company failed to honor a forgery claim. The trial court determined that the bank did not present a covered claim under the terms of the banker’s blanket bond and graiited the insurance company’s motion for summary judgment. For the reasons set forth below, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). Our review is de novo, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Matjoulis v. Integon Gen. Ins. Corp.

The bank’s claim was made under its blanket bond issued by the insurance company. The claim arose after C. A. and Tommie West defaulted on their obligations to the bank. The Wests had assigned their interests in a savings account with Bartow Employee’s Federal Credit Union (credit union) as collateral for the renewal of their obligations with the bank. The bank twice obtained documents from the credit union confirming the minimum amounts in the account and demanding, pursuant to the assignments, a hold on those amounts until a release of the assignments. However, when the Wests defaulted on their obligations, the bank found out that the account confirmations by the credit union were false. The Wests’ account with the credit union had never held the minimum amounts represented; instead, the account had a negative balance. Additionally, the credit union’s representative’s signature on the confirmations was forged by Tommie West, who was the president of the credit union at the time of the forgery.

The bank contends that its loss resulted from the forgery on the confirmation letters and is, therefore, covered under the specific provisions of the contract insuring loss resulting directly from forgery in certain circumstances. The insurance company contends that the loss resulted not from the forgery of the signature, but the false assurances contained in the confirmation documents. The trial court, agreeing with the insurance company and relying on two cases from the federal courts, determined that under these circumstances the insurance company is not liable when the loss is caused by the nonexistence of assets purported to be assigned by a forged instrument, as opposed to a loss caused by the lack of authenticity of the instrument.

Although there are no Georgia cases that address the issues herein, there are several federal court cases specifically on point, as the trial court recognized. In Liberty Nat. Bank v. Aetna Life &c. Co., the plaintiff bank made two loans -- one to Edward Vaughn and one to Vaughn's mother. As security for the loans, Vaughn gave the bank two certificates of deposit (CDs) purportedly issued by National Bank of Commerce, Ltd., an entity which had no assets. Vaughn and his mother subsequently defaulted on the loans, and the CDs proved to be both forged and worthless. The insurer denied coverage of the bank's claim under a blanket policy similar to that at issue herein. The court granted summary judgment to the insurer reasoning that:

The bond insures that the documents submitted to the bank in connection with a loan are genuine and authentic. If they are not, and a loss is caused thereby, the bonding company guarantee[d] the loss. On the other hand, the bonding company does not guarantee the truth of said documents. If they are not truthful, and a loss results therefrom, it is not guaranteed. The allocation of such losses undoubtedly arises from the practicality of the situation. A bank cannot protect against counterfeit and forged documents. It can, on the other hand, investigate the assertions made therein through credit checks, appraisals, title searches, financial statements and the like.

Id. at 863. See also KW Bancshares v. Syndicates of Underwriters at Lloyd's. The court determined that the bank's loss

áefeSEEimeá. feat feetesmkfs Bass was not caused by the lack the documents. On the contrary, the loss was caused by the fact that the statements contained in the documents were not true. The assets represented thereby did not exist. If the documents were authentic and their signatures genuine and authorized, the loss nonetheless would have occurred. The failure of the security was not because they were counterfeit or forged, but solely because the assets purportedly represented thereby were non-existent. This loss falls upon the Bank and not the bonding company by the terms and intent of the bond.

Decided August 28, 2000.

Ledbetter & Smith, James F. Ledbetter, for appellant.

Howard, Clark & Mercer, Glen W. Clark, Jr., for appellee.

Liberty Nat. Bank, supra at 863. Additionally, in Republic Nat. Bank of Miami v. Fidelity &c. Co. of Md., the court pointed out that “a banker’s blanket bond is not a policy of credit insurance and does not protect the bank when it simply makes a bad business deal.” (Punctuation omitted.) Id.

In the present case, the blanket bond did not protect the bank from its bad business deal. Even if the signature on the confirmation was authentic, the bank would have suffered the loss, because the assets did not exist. Furthermore, the bank’s responsibility to investigate the assets of its borrowers was never delegated to the insurance company. Therefore, the trial court correctly granted summary judgment to the insurance company.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       The facts were submitted to the trial court in a joint statement of undisputed facts.

       The blanket bond insurance contract provided, in relevant part, under Insuring Agreement D — Forgery, Alteration and Unauthorized Signatures:
      Loss resulting directly from . . . transferring, paying or delivering any funds or property or establishing any credit or giving any value on the faith of any written instructions or advices directed to the insured and authorizing or acknowledging the transfer, payment, delivery or receipt of funds or property, which instructions or advices purport to have been signed or endorsed by any customer of the insured or by any banking institution but which instructions or advices either bear a signature which is a forgery or have been altered without the knowledge and consent of such customer or banking institution.
      Insuring Agreement E — All Risk Forgery, additionally provides, in relevant part:
      Loss by reason of the insured (a) having in good faith and in the usual course of business, whether for its own account or the account of others, either gratuitously or authenticity or genuineness of 8Hffl!imc5i¡^^f!Bcra3fflffi^(!wdiiSKOT¡^,míprair®3„sm!^¡i(!teL(!H’HffiaffiS!i^<sría^«<SE!te-

       Liberty Nat. Bank v. Aetna Life &c. Co., 568 FSupp. 860 (N.J. 1983).

       KW Bancshares v. Syndicates of Underwriters at Lloyd's, 965 FSupp. 1047 (W.D. Tenn. 1997) (court found no coverage under blanket bond after bank allowed forged letters confirming the payment of a nonexistent bonus to be used as collateral for the loan -- same rationale applied, loss caused by nonexistence of asset, not the forgery of the document).

        Republic Nat. Bank of Miami v. Fidelity &c. Co. of Md., 894 F2d 1255, 1263 (11th Cir. 1990).


text:
    A00A1195.
    JOHNSON v. THE STATE.
    (538 SE2d 766)
   Miller, Judge.

Timothy Johnson was tried before a jury and found guilty of the forcible rape of 16-year-old S. S. Viewed in the light most favorable to the jury’s verdict, the evidence adduced at trial revealed that S. S. recognized Johnson because “[h]e used to go with [her] sister,” although she had never had a conversation with him. One day while S. S. was walking to the store, Johnson drove up beside her and started talking. He agreed to S. S.’s request to drive her to get something to eat, and she got in his car. On the way, Johnson “said he had to get something from his house,” and drove S. S. to his apartment.

Once inside, Johnson led S. S. to a back bedroom and told her “he wanted to have sex with [her].” S. S. “told him no and that if he tried to touch [her] it would be rape,” but Johnson did not care; he would get off because he was a detective. Johnson “pulled down [S. S.’s] pants and tried to get on top of [her].” He raised his hand, and S. S. screamed. S. S. did not want to have sex with Johnson and denied any prior sexual relationship with him. Johnson entered her vagina with his penis three times. He told S. S. to “shut up before he beat [her] to death and that if [she] told anybody that he was going to kill [her].” S. S. kicked Johnson in the stomach and ran away. She found a telephone and called the police. At the police station, she told the police and her mother what had happened.

1. The third enumeration urges the general grounds. Johnson argues that, because the victim’s “testimony is replete with tales of lies and falsehoods and inconsistencies . . .” with other testimony, the evidence is insufficient as a matter of law.

“The testimony of a single witness is generally sufficient to establish a fact.” OCGA § 24-4-8. “The credibility of a witness is a matter to be determined by the jury under proper instructions from the court.” OCGA § 24-9-80. In 1978, the General Assembly “removed the corroboration requirement which was specifically a part of the previous rape statute,” Code Ann. § 26-2001, now OCGA § 16-6-1 (Ga. L. 1978, p. 3 amending Ga. L. 1968, pp. 1249, 1299). Baker v. State, 245 Ga. 657, 664-666 (5) (266 SE2d 477) [(1980)].

Johnson testified he had had three prior consensual sexual encounters with S. S., after which he would give her small sums of money such as $20, but on the night in question she asked for $60 to buy shoes. When Johnson refused to give her that much money, S. S. cursed him and left. Nevertheless, the jury was authorized to reject Johnson’s testimony and accept the victim’s testimony depicting non-consensual, forcible intercourse. The evidence is sufficient under the standard of Jackson v. Virginia to authorize the jury’s verdict that Johnson is guilty, beyond a reasonable doubt, of the rape alleged in the indictment.

2. The trial court correctly excluded all reference to the fact that 16-year-old S. S. had a child of approximately 21 months of age. The only possible desired inference arising from the victim's motherhood is that, because she had had prior sexual experience with someone other than defendant, she consented to his indecent liberties on this occasion. Such inference is clearly prohibited under Georgia's Rape Shield Statute, OCGA 24-2-3 (a), and does not come within any exception under subsection (b). Although defendant claims this detail is vital to his impeachment of S. S., the Rape Shield Statute

provides the exclusive means for admitting evidence relating to the past sexual behavior of the complaining witness in prosecutions for rape. The res gestae rule, impeachment techniques and other traditional means for introducing evidence which is otherwise inadmissible can have no effect in this situation.

Certainly, the trial court's ruling here did not prohibit defendant from offering any relevant evidence tending to impeach S. S. by disproving any material facts to which she had testified. The first enumeration is without merit.

3. An expert testified that, in his medical opinion, the "history and the physical exam that [S. S.] gave were consistent . . . with her history of having been raped." This testimony is not subject to the objection that it goes to the ultimate issue to be decided by the jury. Nor did the trial court err in restricting cross-examination of the medical witness with the victim's medical history by reference to a C-section (Caesarian section birth) and the victim's last reported voluntary intercourse. The Rape Shield Statute prohibits cross-examination of the complaining witness or other witnesses about the complaining witness's past sexual behavior, including but not limited to cross-examination about the complaining witness's "marital history, mode of dress, general reputation for promiscuity, nonchastity, or sexual mores contrary to the community standards.” The second enumeration is without merit.

Decided August 28, 2000.

John R. Greco, for appellant.

Paul L. Howard, Jr., District Attorney, David E. Langford, Anna E. Green, Assistant District Attorneys, for appellee.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

       Johnson was acquitted of rape and statutory rape allegedly committed against the victim’s younger sister.

        Maloy v. State, 237 Ga. App. 873, 874 (1) (516 SE2d 370) (1999).

        Knight v. State, 216 Ga. App. 200, 201 (2) (453 SE2d 798) (1995).

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

       Maloy v. State, supra, 237 Ga. App. at 874 (2).

       Johnson v. State, 146 Ga. App. 277, 279 (1) (246 SE2d 363) (1978) (testimony that alleged victim was not a virgin inadmissible to prove defendant's reasonable belief in consent).

       Id. at 280 (2). Accord Logan v. State, 212 Ga. App. 734, 735-736 (1) (a) (442 SE2d 883) (1994) (whole court).

       Atkins v. State, 243 Ga. App. 489, 490-496 (2) (533 SE2d 152) (2000) (whole court). Compare Allison v. State, 256 Ga. 851, 853 (6) (353 SE2d 805) (1987) (expert's opinion that a child had in fact been sexually abused inadmissible, as that conclusion is not beyond the ken of the average layman juror).

       OCGA § 24-2-3 (a).


text:
    A00A1357.
    WALKER v. THE STATE.
    (538 SE2d 563)
   Blackburn, Presiding Judge.

Following a jury trial, Harden Millard Walker appeals his convictions for false imprisonment and pandering by compulsion, contending that the evidence was insufficient to support the verdict and that the State failed to prove venue. For the reasons set forth below, we affirm.

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

(Punctuation omitted.) Kovacs v. State. See Jackson v. Virginia.

Viewing the evidence in this light, the record shows that S. S., a 15-year-old girl, ran away from home in October 1996. While staying at the house of an acquaintance, S. S. met Walker, who drove her and another woman to the mall. During this outing, Walker abandoned the other woman who had exited his van briefly, and he drove away with S. S. Walker took S. S. to a hotel, where he had sex with her. S. S. told Walker that she wanted to leave and go back to her friend’s house, but Walker told her that she could not go.

Walker then explained to S. S. that he intended to “put her in the game” and that she “was going to have to start prostituting for him.” When S. S. initially refused, Walker threatened to kill her if she did not comply with his wishes. S. S. then began prostituting for Walker. During this time, she and Walker lived in his van, often frequenting Stewart Avenue in search of johns. During this time, Walker forced S. S. to pose nude for one of his friends and have sex with others. Walker even attempted to sell S. S. like chattel to a friend of his for $500. At one point, when S. S. talked to a man he did not like, Walker threatened to cut her face, stab her to death with a screwdriver, and throw her in the Chattahoochee River. S. S. testified repeatedly that she did not try to get away from Walker because she was afraid of him.

On the night of October 15, 1996, Sergeant Traylor was policing an area of Stewart Avenue in Fulton County when S. S. approached him. S. S. offered to have sex with Traylor for a price. She informed Traylor, however, that she would first have to obtain Walker’s approval, which she did. Then, Traylor arrested both S. S. and Walker. Shortly after her arrest, S. S. explained to Traylor that Walker had beaten her, forced her to be his prostitute, and would not let her leave.

1. Walker erroneously contends that the evidence was insufficient to support his conviction for false imprisonment. “A person commits the offense of false imprisonment when, in violation of the personal liberty of another, he arrests, confines, or detains such person without legal authority.” OCGA § 16-5-41. There is ample evidence in this case that Walker illegally confined S. S. to his van, threatening to kill her if she disobeyed his orders. As such, the evidence supports the verdict for false imprisonment. See Jackson, supra.

2. Walker also erroneously contends that the evidence was insufficient to support his conviction for pandering by compulsion. “A person commits the offense of pandering by compulsion when he by duress or coercion causes a female to perform an act of prostitution.” OCGA § 16-6-14. In this case, S. S. testified that, when she attempted to refuse to act as Walker’s prostitute, he threatened to kill her. This direct testimony clearly supports Walker’s conviction. See Jackson, supra.

3. Finally, Walker argues that his convictions must be overturned because the State presented no evidence of venue in this case. This argument is patently erroneous. On direct, Sergeant Traylor testified that he arrested Walker and S. S. at 1899 Stewart Avenue, City of Atlanta, Fulton County. Therefore, contrary to Walker’s contention, there was testimony establishing venue in this case. See OCGA § 17-2-2 (b). As such, Walker’s convictions must stand.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

Decided August 28, 2000.

Dell Jackson, for appellant.

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

        Kovacs v. State, 227 Ga. App. 870 (1) (490 SE2d 539) (1997).

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


text:
    A00A1594.
    LEFTWICH v. THE STATE.
    (538 SE2d 779)
   Miller, Judge.

Christopher Allen Leftwich was convicted of molesting his seven-year-old stepdaughter. Following the denial of his motion for new trial, Leftwich filed this appeal. In his sole assertion of error, Leftwich contends that the trial court erred in refusing to permit a defense expert to testify about certain test results obtained during a penile plethysmograph examination. After carefully reviewing the basis for the trial court’s evidentiary ruling, we affirm.

The rules governing the admission of scientific evidence were set forth in considerable detail in Harper v. State. In its role as gatekeeper, a trial court must decide whether the procedure or technique at issue has reached a scientific stage of verifiable certainty. In making this determination, the trial court may take judicial notice that the scientific procedure has been recognized in other jurisdictions as being established with verifiable certainty. Based on evidence presented to the trial court by the parties including expert testimony, the court may also decide that a procedure or technique has reached a “scientific stage of verifiable certainty.” The decision as to whether a procedure has reached the requisite standard of verifiable certainty and scientific reliability is a matter within the discretion of. the trial court.

In this case, Leftwich wanted to have his expert, Henry E. Adams, Ph.D., a psychologist specializing in the study of sexual deviance, testify about Leftwich’s favorable test result obtained when Dr. Adams conducted testing utilizing a penile plethysmograph. This procedure involves placing a measuring gauge on a subject’s penis, exposing the subject to various visual and aural stimuli, then measuring the change in the circumference of the subject’s penis. Leftwich wanted to offer testimony that he was not aroused by child pornographic stimuli to create an inference that it was unlikely that he did, in fact, molest his stepdaughter.

Decided August 28, 2000.

The State opposed the admission of this evidence and filed a motion in limine to exclude all reference, argument, or testimony about penile plethysmography testing, procedures, or test results. In its motion, the State pointed out that penile plethysmography evidence has been explicitly and repeatedly found inadmissible in this State and other jurisdictions.

The trial court conducted a lengthy hearing on the issue and refused to permit the evidence. During the hearing, Dr. Adams testified that in his professional opinion, this particular test is the “best psychological measure we have” for identifying pedophiles. Dr. Adams admitted, however, that certain individuals can fake their erectile responses and attempt to circumvent the outcome of the test. He also noted that “when it comes to sex,” the whole population of pedophiles is “deceitful.”

In this appeal, Leftwich contends that the trial court erred by precluding his expert from testifying about the test results and by refusing to permit his expert to testify that he was not a pedophile. But in 1994 in Gentry v. State, this Court noted that the reliability of test results obtained on the penile plethysmograph had not been scientifically established. As the proponent of such evidence, Leftwich bore the burden of establishing the reliability of this particular test by showing that subsequent to the Gentry decision, this test had earned acceptance in other jurisdictions or by offering expert testimony to establish the scientific validity and reliability of this procedure. This he failed to do. Nor did Leftwich demonstrate that this form of psychological testing would produce evidence beyond the ken of the average juror and was therefore admissible as expert testimony. For these reasons, the trial court did not err in excluding the evidence.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

Colin A. Fieman, for appellant.

Harry N. Gordon, District Attorney, James D. Love, Assistant District Attorney, for appellee.

       249 Ga. 519, 525-526 (1) (292 SE2d 389) (1982).

       See Izer v. State, 236 Ga. App. 282, 284 (511 SE2d 625) (1999).

        Harper, supra, 249 Ga. at 526 (1).

       Id. at 525 (1).

        Chapel v. State, 270 Ga. 151, 156 (5) (510 SE2d 802) (1998).

       At trial, Leftwich admitted having improperly touched the child inside her panties. But he claimed that the contact had been unintentional and had occurred while he was asleep in bed with her.

       See, e.g., Gentry v. State, 213 Ga. App. 24, 25 (2) (443 SE2d 667) (1994).

       Cf. Wright v. State, 233 Ga. App. 358, 359 (1) (504 SE2d 261) (1998) (a party may not bolster its case as to the ultimate issue with expert testimony when the jury could reach the same conclusion independently).

       Supra, 213 Ga. App. at 25 (2).

       See id. (admission of results of plethysmograph test was error because reliability of technique not established).

       See Bowen v. State, 242 Ga. App. 631, 633 (531 SE2d 104) (2000).

        Stowers v. State, 215 Ga. App. 338, 339 (1) (449 SE2d 690) (1994).

        Garren v. State, 220 Ga. App. 66, 67 (1) (467 SE2d 365) (1996).


text:
    A00A1674.
    In the Interest of C. R., a Child.
    (538 SE2d 776)
   Miller, Judge.

T. R., the natural mother, appeals from the termination of her parental rights in the child, C. R. In two related enumerations of error, appellant contends the evidence is insufficient. The standard of review is whether any rational trier of fact could have found by clear and convincing evidence that the natural parent's right to custody should be terminated. Viewed in the light most favorable to the juvenile court's judgment, the largely undisputed evidence adduced below authorized the following facts:

T. R. was 14 years old when C. R. was born in May 1997. Because of T. R.'s age and unruly behavior, hospital personnel notified the Glynn County Department of Family & Children Services, and a safety plan was established whereby C. R. would remain with T. R.'s grandmother, where T. R. would have daily access to C. R. so she could bond with the infant and form an attachment. At a July 1997 hearing where T. R. was represented by counsel, the juvenile court determined that C. R. was deprived because T. R. was extremely immature, had no stable residence, and violated the safety plan by removing C. R. from the grandmother's care. Specifically, T. R. left her grandmother's home with C. R. one night and was essentially living on the streets, going from one place to another, staying with different people, and leaving C. R. with strangers. Temporary custody of C. R. was placed with DFACS in July, but T. R. did not meet with her caseworker to discuss a reunification plan until October, when C. R. was placed with a maternal great aunt in order to afford T. R. greater access to and more frequent contact with the child. Visits in this relative's home were irregular and marked by arguments.

were faratear ate mntefasi. im In January 1998, T.R. arrived very late to the first recommending early termination. To maintain contact with C. R., the new case plan envisioned supervised visitation at the DFACS offices, one hour each Tuesday after school. T. R. would successfully complete parenting classes and cooperate with the caseworker. And T. R. promised to consider C. R.’s welfare before making any decisions that affected C. R., such as whether to have another child, whether to work on educational goals, or whether to cooperate with the case manager.

In May 1999, DFACS petitioned for the termination of T. R.’s parental rights in C. R., alleging C. R. was without parental care, control, and support because T. R. failed to obtain adequate housing and had not maintained employment, contributed to the support of C. R., visited C. R. regularly, or completed the goals of her case plan. These same circumstances underlie the additional allegation that, for the year preceding the filing of the termination petition, T. R. had significantly failed to communicate with and support the child in a meaningful, supportive manner.

At the September 1999 adjudicatory hearing, sixteen-year-old T. R. was six months pregnant with her second child. Despite the juvenile court’s earlier directive to stay in school or else maintain full-time employment, T. R. did not go to school most of the time, attending only 42 days in 1998 and 55 days in 1999. At one point, T. R. used a death in the family as an excuse to skip school for more than two weeks, after which she failed to attend for the remainder of the school year and was refused enrollment for the next school year. T. R. did accept part-time employment at a fast food restaurant but was unable to work for a two-week period because her physician allegedly placed her on “bed rest.” T. R. had quit a temporary job at the Jekyll Island Community Center because she did not like working “weekends and stuff.” T. R. never obtained a full-time position.

T. R. frequently failed to follow through on scheduled visitations, although her aunt would arrive with C. R. Out of thirty possible one-hour visits at DFACS under this case plan, T. R. actually visited with C. R. only five times. Seven times T. R. arrived, but C. R. did not because T. R. had not telephoned to confirm the visitation. T. R. does not like it when C. R. refers to the aunt as her mother, but acts immature with the child and does not treat the relationship as that of parent and child. The case manager expected T. R. to initiate a deeper kind of interaction, such as teaching C. R. a song or reading to her. In the five instances of visitation, T. R. did not always stay for the full hour. In one instance, T. R. cut the visitation short after only 15 minutes because she had an appointment to have her nose pierced. T. R. did manage to obtain a certificate of completion for parenting classes, but not a certificate of achievement, which is awarded when the instructor feels the parent will use the skills learned in the class. As for maintaining a stable residence, since C. R. was placed in foster care, T. R. has stayed at twelve different known locations, and for an eight-month period her whereabouts were unknown. T. R. had lived with her twenty-year-old sister on four occasions but was kicked out because of T. R.’s temper and because the sister felt that T. R. would never recover C. R. until she had her own residence.

T. R. leases an apartment month-to-month, for $200. Her telephone service has been shut off and not reconnected. Utilities cost approximately $60 per month. She makes $7 per hour at her part-time job at the restaurant. As to future behavior, T. R. testified that she intended to obtain her GED when she is old enough to attend adult education. But the psychological evaluation of T. R. indicated that she has an adjustment disorder with withdrawal, a learning disorder, and developmental reading disorder and will likely have difficulty motivating herself to participate in school, parenting classes, and other activities. T. R. conceded that it was not responsible to have a baby at age 14, nor to become pregnant with a second child at age 16.

1. In considering the termination of parental rights, the juvenile court shall first determine whether there is present clear and convincing evidence of parental misconduct or inability. If there is, the court shall then determine whether termination of parental rights is in the best interest of the child. Termination of parental rights based on parental misconduct or inability may be authorized by the juvenile court’s determination

that the child is deprived due to lack of parental care or control, subsistence, or education as required by law or as necessary for the child’s physical, mental, or emotional health or morals; that such deprivation is likely to continue; and that continued deprivation will cause serious physical, mental, emotional, and moral harm to the child.

In addition, where the child is not in the custody of the parent whose rights are in issue, the juvenile court shall consider whether the lack of proper parental care or control is demonstrated by proof that, for a period of one year or longer prior to the filing of the termination petition, the parent without justifiable cause failed significantly to develop and maintain a parental bond with the child in a meaningful, supportive way.

2. The evidence authorizes the juvenile court's determination that C. R. is deprived because of T. R.'s inability to provide the parental care, subsistence, and education necessary for C. R.'s physical, mental, emotional, and moral development. At not quite 17, T. R. is pregnant again, unemancipated, unmarried, and has not demonstrated an ability to maintain consistent employment at even a subsistence level. The lack of proper parental care and control is further demonstrated by T. R.'s inability or unwillingness to exercise her scheduled visitations (five visitations out of a possible thirty), her inability or unwillingness to take some initiative and confirm her scheduled visitations (seven visits missed because C. R. was not there), and her inability or unwillingness to use her visitations to establish a parental relationship with C. R. (such as teaching C. R. a song or a game). T. R. failed to maintain a parental bond with C. R. in any meaningful, supportive way. Thus, T. R.'s reliance on Chancey v. Dept. of Human Resources is misplaced.

The evidence also authorizes the conclusion that this deprivation is likely to continue or will not be remedied, since T. R. has no realistic plans to support herself, much less her two small children. There is expert opinion evidence that T. R. will not, by herself, be motivated to finish school or otherwise take charge of her life. Moreover, T. R.'s second unwed pregnancy indicates that she continues to exercise poor judgment, to the detriment of C. R. And the continued deprivation will likely cause serious physical, mental, emotional, or moral harm to C. R.

The same factors indicating deprivation due to T. R.'s parental unfitness or inability also support the juvenille court's judgment that termination is in the best interest of C. R.

Decided August 28, 2000.

Steven L. Morgan, for appellant.

Thurbert E. Baker, Attorney General, Shalen A. Sgrosso, Assistant Attorney General, James A. Chamberlin, Jr., for appellee.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

        In the Interest of W. M., 239 Ga. App. 319, 321 (1) (521 SE2d 230) (1999).

         The putative father was unnamed until the adjudicatory hearing two years later.

       OCGA § 15-11-94 (a), formerly OCGA § 15-11-81 (a).

       (Citations omitted.) In the Interest of V. H. W., 241 Ga. App. 332, 333 (1) (527 SE2d 30) (1999).

       OCGA 15-11-94 (b) (4) (C) (i). Because the first citizen review panel recommended termination of T. R.'s parental rights, we do not consider whether her failure to abide by subsequent case plans authorized termination under OCGA 15-11-94 (b) (4) (C) (iii), since such plans were not, in our view, designed to reunite C. R. with her mother.

       In the Interest of W. M., supra, 239 Ga. App. at 322 (2). Compare In the Interest of T. B., 242 Ga. App. 564, 567 (3) (b) (iii) (529 SE2d 620) (2000) (physical precedent only) (caseworker readily admitted that 16-year-old natural mother maintained meaningful contact, had not missed a visit, and sought additional visitation beyond one hour per week supervised by DFACS).

       156 Ga. App. 338, 340 (1) (274 SE2d 728) (1980) (whole court) (no indication that the natural mother ever engaged in misconduct detrimental to child or that she suffered from inability to care for child).

         In the Interest of V. H. W., supra, 241 Ga. App. at 334 (1).

       In the Interest of J. M. B., 231 Ga. App. 875, 878 (1) (c) (501 SE2d 259) (1998) (evidence that natural mother placed her convenience and personal ambitions before the welfare of her child authorized conclusion that deprivation would continue).

       In the Interest of V. H. W., supra, 241 Ga. App. at 334 (2). Accord In the Interest of C. W. S., 231 Ga. App. 444, 448 (4) (498 SE2d 813) (1998).


author: Mikell, Judge.

text:
    A00A1744.
    SANDERS v. THE STATE.
    (538 SE2d 772)
   Mikell, Judge.

A Macon County jury convicted Bryan Sanders of armed robbery and aggravated assault. On appeal from the denial of his motion for new trial, Sanders claims the trial court improperly (1) denied his request for a continuance, (2) allowed inadmissible hearsay testimony, and (3) improperly allowed the investigating officer to place his character in issue. Sanders also claims he was denied effective assistance of counsel. Finding no error, we affirm.

Viewed in the light most favorable to the verdict, the evidence shows that John Keith Brannen was driving home from work on the afternoon of March 5, 1996, when the back of his car was struck by a dark object. As he stopped his car to investigate, Brannen saw Sanders, Jermaine Smith and Levoski McDonald. Smith, who had thrown the object, ran away. Brannen got out to inspect his car, but saw no damage. Smith rejoined Sanders and McDonald while Brannen was looking over his car. Sanders then pulled out a .22 pistol, held it to Brannen’s head, and said, “give up your money.” Smith took Brannen’s wallet and removed the $6 that were inside. Sanders continued to hold the gun on Brannen while Smith searched Brannen’s car. Smith then struck Brannen in the face with his fist, and Sanders, Smith and McDonald fled.

1. On the morning of the trial, Sanders asked the trial court for a continuance so that he could hire new counsel to replace his court-appointed trial counsel. The case had been pending for over a year. Sanders did not identify a particular attorney that he wished to retain, but told the trial court that he would hire a lawyer “as soon as I get my first paycheck.” He gave no specific reason why he was dissatisfied with his court-appointed trial attorney, who was prepared for trial. The state had gathered its witnesses, including the victim, who had driven to Macon County from Norcross. Sanders’s court-appointed attorney supported his client’s request for a continuance because he was experiencing very poor relations with his client’s family.

The decision to deny a motion for continuance is in the discretion of the trial court, and there must be a clear showing of abuse of that discretion in order to warrant a reversal. We agree with Sanders that he had the right to seek his own counsel at his own expense, but here he had had many months before the trial to exercise that right. The trial court was justified in preventing Sanders from using a last-minute discharge of counsel as a dilatory tactic. And although Sanders’s attorney supported his continuance request, the trial court was not required to release defense counsel because of friction with his client’s family. The trial court did not abuse its discretion in denying Sanders’s request for a continuance.

2. At the state’s request, McDonald read aloud to the jury his statement describing the roadside encounter. McDonald testified that the written statement was an accurate reflection of what happened and was the truth as he remembered it. Sanders claims that the tried court committed reversible error by allowing McDonald to read his prior written statement into evidence because the statement constituted impermissible hearsay. However, because Sanders failed to object to the introduction of the statement, he has waived the right to contest this issue on appeal.

3. Sanders next claims that the state impermissibly put his character into issue. At trial, Major Finch of the Montezuma Police Department recounted how the victim identified Sanders and McDonald from a local high school yearbook. The prosecutor then asked whether and how Finch had known Sanders and McDonald. Finch replied that he knew them, “from coming — they had been down to the police on several occasions in the past.” Testimony that a defendant is known to the police does not impermissibly place the defendant’s character into issue. In any case, as counsel failed to object at trial, the issue is waived on appeal.

4. Sanders claims that he was denied effective assistance of counsel because his trial attorney (a) failed to object to the introduction of McDonald’s statement, (b) failed to object to the testimony of Major Finch that he had been “down to the police on several occasions,” and (c) failed to request a Jackson-Denno hearing to determine the admissibility of his written statement. To establish a claim of ineffective assistance of counsel, Sanders must show both that his trial counsel’s performance was deficient and that, but for the deficient performance, a reasonable probability exists that the results of the proceedings would have been different. Counsel’s decisions on matters of strategy, even if unwise, do not amount to ineffective assistance. We note at the outset that Sanders has failed to provide a transcript of the hearing on his motion for new trial, so we are unable to address any matters which may appear there but not in the trial transcript.

(a) In his statement, McDonald wrote that Sanders “took out the gun.” McDonald’s statement is consistent with Smith’s testimony that Sanders only held the gun at his side and arguably contradicts the testimony of the victim, who said that Sanders pointed the gun at his head. Assuming, without deciding, that McDonald’s written statement was technically inadmissible hearsay, Sanders’s trial counsel had legitimate reason for wanting the statement to be read into evidence because portions of the statement were beneficial to Sanders, and the inculpatory portions of the statement were not uniquely damaging. Trial counsel’s failure to object to the introduction of McDonald’s statement was a matter of trial strategy and was not ineffective assistance.

(b) Sanders cannot complain of his trial counsel’s failure to object to Major Finch’s statement that he had been “down to the police” because, as discussed in Division 3 above, the statement did not impermissibly put his character in issue.

(c) Sanders cannot show he was prejudiced by trial counsel’s failure to request a Jackson-Denno hearing. Although he was 15 years old when this incident occurred, and age is a factor in gauging the voluntariness of a statement, Sanders’s guardian was present during Sanders’s police interview. Evidence also shows that Sanders was informed of his Miranda rights before making the statement, and that the statement was made without threat of force or promise of reward. In order to show ineffective assistance, Sanders must establish that his statement was not voluntary, and he cannot show that from the record here. Trial counsel was not ineffective when he failed to request a separate Jackson-Denno hearing.

Decided August 28, 2000.

Donald L. Lamberth, for appellant.

John R. Parks, District Attorney, Denise D. Fachini, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

       Gill, Sanders’s trial attorney, told the court that “[Sanders’s] family has no faith and no confidence in me. I mean, his uncle’s been calling me a punk this morning because he thinks I’m in cahoots with the DA’s office in trying to talk him into pleading guilty . . . and it’s just been a nightmare.”

        Pulliam v. State, 236 Ga. 460, 462 (224 SE2d 8) (1976).

        United States v. Koblitz, 803 F2d 1523, 1528 (11th Cir. 1986).

        Brannon v. State, 220 Ga. App. 572, 574 (2) (469 SE2d 716) (1996); Wills v. State, 216 Ga. App. 157, 158 (1) (453 SE2d 762) (1995).

       See Cox v. State, 205 Ga. App. 375, 376 (4) (422 SE2d 68) (1992).

       See Grant v. State, 161 Ga. App. 403-404 (2) (288 SE2d 118) (1982); see also Williams v. State, 178 Ga. App. 80, 82 (2) (342 SE2d 18) (1986) (reference to a defendant’s “mug shot” does not impermissibly place character in issue).

        Beecher v. State, 240 Ga. App. 457, 459 (3) (523 SE2d 54) (1999).

        Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964).

        Davis v. State, 221 Ga. App. 131, 133 (3) (470 SE2d 520) (1996).

        Scott v. State, 238 Ga. App. 258, 260 (2) (518 SE2d 468) (1999).

       See Roberts v. State, 244 Ga. App. 330, 332 (2) (c) (534 SE2d 526) (2000).

       McDonald was called to the stand and asked to read his written statement as opposed to testifying from memory about the incident. Whether the statement was inadmissible under the hearsay rules was not extensively briefed by the parties, and the resolution of that issue is not determinative here. We make no ruling on that issue.

       See Attaway v. State, 244 Ga. App. 5 (534 SE2d 580) (2000).

       See McKoon v. State, 266 Ga. 149, 150 (2) (465 SE2d 272) (1996).

        Powell v. State, 210 Ga. App. 409, 414 (6) (c) (437 SE2d 598) (1993).

       See Hubbard v. State, 224 Ga. App. 614 (481 SE2d 601) (1997).


text:
    A00A1440.
    HAYES v. COLLINS.
    (538 SE2d 785)
   Mikell, Judge.

Lisa Hayes sued Jennifer Collins seeking repayment of a loan and tort damages for emotional distress. On the motion of Collins, the trial court dismissed Hayes’ tort claim. The court granted summary judgment to Collins on the claim for repayment of a loan, and Hayes appeals. We affirm.

The evidence shows that Hayes’ late husband, Tony Hayes, loaned Corporate Staffing Solutions, Inc. (the “Corporation”) a total of $33,500, by writing three checks from his home equity line of credit. Mr. Hayes made two of the checks payable to the Corporation, and the third payable to himself. The third check was deposited into the Corporation’s account. The terms of the loan were not reduced to writing, and Mr. Hayes did not establish any deadlines for repayment.

Mr. Hayes died in February 1998. On May 28, 1998, Ms. Hayes and Collins held a meeting with the executor of the estate. Collins, who is the Corporation’s president and sole shareholder, stated that she would attempt to repay the loan made to the Corporation. Ms. Hayes testified that she subsequently discovered that her late husband and Collins had been engaged in an adulterous relationship prior to his death.

Ms. Hayes filed suit against Collins individually. The complaint alleged that Collins had failed to repay the loan made to the Corporation and sought judgment in the amount of the outstanding corporate debt, as well as tort damages for the emotional distress suffered by Ms. Hayes as a result of the adulterous relationship between her late husband and Collins. Collins filed an answer in which she denied individual liability for the corporate debt and a counterclaim alleging the tort of invasion of privacy. The trial court dismissed Ms. Hayes' tort claim. The parties subsequently filed cross-motions for summary judgment, and the court entered judgment in favor of Collins.

In reviewing grants of summary judgment, "this court conducts a de novo review of the law and the evidence." To prevail at summary judgment under OCGA 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

We conclude that the trial court properly entered summary judgment in favor of Collins. It is an undisputed fact that Mr. Hayes made the loan at issue to the Corporation. It is also undisputed that the Corporation has not repaid the loan; however, Collins cannot be held personally liable for corporate debts absent evidence to warrant piercing the corporate veil. "Because the cardinal rule of corporate law is that a corporation possesses a legal existence separate and apart from that of its officers and shareholders, the mere operation of a corporate business does not render one personally liable for corporate acts."

Whether to pierce the corporate veil is normally a question for jury determination. However, in order for the trial court to submit the issue to a jury, the plaintiff must introduce evidence "that the corporate arrangement was a sham, used to defeat justice, to perpetrate fraud, or to evade statutory, contractual or tort responsibility." There is no such evidence in the record. Contrary to the argument of Ms. Hayes, "[s]ole ownership of a corporation by one person . . . is not a factor, and neither is the fact that the sole owner uses and controls it to promote [her] ends."

Ms. Hayes argues that fraud and deceit on the part of Collins justified piercing the corporate veil. It is Ms. Hayes' contention that Collins fraudulently induced Mr. Hayes to make the loan to the Corporation through their “improper relationship.” However, Ms. Hayes did not allege fraud in her complaint or in her motion for summary judgment.

Decided August 29, 2000.

Michael A. Gabel, for appellant.

Lee Sexton & Associates, John S. Mixon, Jr., Bruce R. Millar, for appellee.

Rather, Ms. Hayes has argued fraud for the first time on appeal. “Issues not raised in the court below may not be raised for the first time on appeal.” Accordingly, we are precluded from considering Ms. Hayes’ allegation of fraud. Even if we were to consider it, there is no evidence to support the argument that the loan was induced by an improper relationship.

“One who deals with a corporation as such an entity cannot, in the absence of fraud, deny the legality of the corporate existence for the purpose of holding the owner liable.” Because the record is devoid of evidence to warrant piercing the corporate veil, Ms. Hayes cannot recover from Collins individually for repayment of the corporate loan. The trial court properly granted summary judgment to Collins.

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

       Desai v. Silver Dollar City, 229 Ga. App. 160, 163 (1) (493 SE2d 540) (1997).

       OCGA 9-11-56 (c); Lau's Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

       Davis v. Southern Exposition Mgmt. Co., 232 Ga. App. 773, 775 (3) (503 SE2d 649) (1998).

        (Punctuation omitted.) Fuda v. Kroen, 204 Ga. App. 836, 837 (1) (420 SE2d 767) (1992).

        (Punctuation omitted.) J & J Materials v. Conyers Seafood Co., 214 Ga. App. 63, 65 (4) (446 SE2d 781) (1994).

       (Punctuation omitted.) Fuda, supra, 204 Ga. App. at 837.

        Mapp v. Drake, 178 Ga. App. 830, 831 (344 SE2d 682) (1986). See also Hembree v. Johnson, 224 Ga. App. 680, 681 (2) (482 SE2d 407) (1997).

       (Citations and punctuation omitted.) Gen. Ins. Svcs. v. Marcola, 231 Ga. App. 144, 149 (7) (497 SE2d 679) (1998). See also Garrett v. Women’s Health Care of Gwinnett, P.C., 243 Ga. App. 53 (532 SE2d 164) (2000).


author: Eldridge, Judge.

text:
    A00A1932.
    BROWN v. THE STATE.
    (538 SE2d 788)
   Eldridge, Judge.

A Long County jury found Stanley L. Brown guilty of trafficking in cocaine. He appeals, challenging the sufficiency of the evidence introduced against him and alleging error in the trial court’s charge. We have reviewed both claims of error and affirm Brown’s conviction.

1. When viewed to uphold the verdict, the evidence shows that, at approximately 4:45 p.m., Brown and his co-defendant Patrick Johnson were stopped at a routine license check roadblock set up by the Georgia State Patrol northbound on Highway 57 in Long County close to the Long/McIntosh County line. Brown was driving a rented Mitsubishi Gallant; Johnson was in the passenger seat. The roadblock was manned by Georgia State Patrol Officers Pimentel and Hodges. Hodges approached the Mitsubishi, and on request, Brown produced his license and the rental agreement for the car. Officer Hodges noted that Brown’s name was not on the rental agreement. He asked Brown to step to the rear of the car; Hodges then approached the passenger side to determine if the passenger’s name was on the agreement. When the passenger door was opened, a brown paper bag fell out which contained numerous small ziplock bags with a marijuana leaf imprinted on each bag. Officer Hodges shut the passenger door and immediately approached Brown to ask for permission to search the car. Brown consented to the search. However, before Hodges could begin, Johnson climbed from the passenger’s seat into the driver’s seat and drove off.

Hodges’ partner, Officer Pimentel, saw Johnson take off and gave chase. Speeds reached over 120 mph before Pimentel found the Mitsubishi driven off the road and abandoned. Backup was called, and Johnson was located several hours later, after the tracking dog arrived. The Mitsubishi was inventoried. A duct tape-wrapped package of cocaine was found in plain view on the floorboard of the passenger side of the car; the cocaine had a street value of $13,000. Two packages of marijuana were also found under the passenger seat of the Mitsubishi, also having a street value of several thousand dollars.

When questioned, appellant Brown told an officer that his mother-in-law rented the car. Brown told the officer that he did not know Johnson at all, but was just giving him a ride to Darien, Georgia. When Brown was reminded that he had already come through Darien and was heading north, he had no response. Brown then told a different officer that “he had picked up the passenger in Darien and that, you know, he didn’t know him and he didn’t know about any drugs in the vehicle.”

Co-defendant Johnson told an officer that he “[n]ever saw [Brown] before today” and that Johnson picked up the drugs in St. Augustine, Florida. Johnson stated that he was going to Claxton to “party” with the drugs: “I was going to give them away. I was going to have a party.” Thereafter, he told the officer that he got the drugs in the men’s room of a McDonald’s in Jacksonville, Florida. When reminded that he had said St. Augustine earlier, Johnson stated, “No, that is where he [Brown] picked me up.” Johnson stated that he already had the drugs when Brown picked him up in St. Augustine and that Brown “didn’t know anything.” However, St. Augustine, where Brown allegedly picked Johnson up, is well south of Jacksonville, where Johnson claims to have obtained the drugs. And the two men were heading north.

In fact, Brown and Johnson are cousins. Brown is not married and does not have a mother-in-law. The Mitsubishi had been rented for Brown in Miami by the mother of a girl that Brown was dating. Brown and Johnson were both from Claxton, Evans County, Georgia, which was where both men were heading when they were stopped at the Long County roadblock.

Before this Court, Brown contends that because (a) he denied knowledge of the drugs; (b) he was cooperative with the police; (c) Johnson stated that Brown knew nothing about the drugs; and (d) the drugs were found on the passenger side of the car where Johnson was riding, the evidence is insufficient to demonstrate the criminal intent necessary to support Brown's conviction. We do not agree.

One who intentionally aids or abets in the commission of a crime is a party to it. OCGA 16-2-20 (b) (3). It is true mere presence at the scene of a crime, even coupled with knowledge and approval, is insufficient to convict one of being a party. However, presence, companionship, and conduct before and after the offense are circumstances from which one's participation in the criminal intent may be inferred. A person will not be presumed to act with criminal intention but the trier of facts may find such intention upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.

If the totality of circumstantial evidence is sufficient to connect the defendant with the possession of the drugs, the conviction will be sustained, even though there is evidence to authorize a contrary finding. "Moreover, where transactions involving relatives are under review, slight circumstances are often sufficient to induce a belief that there was collusion between the parties."

In this case, the jury was authorized to infer Brown knew that he and Johnson were transporting cocaine from the fact that the vehicle was in Brown's possession and the duct-taped brick of cocaine was in plain view on the floor of the car; that Brown and Johnson are cousins; that together the two men were traveling from Florida to Claxton; and that, before being questioned by police, Brown volunteered that he did not know anything about any “dope in the car.” In addition, when Johnson demonstrated his guilt by fleeing, Brown lied to police about his relationship with Johnson, claiming that he did not even know him; Brown lied to police about where he picked Johnson up and where he was going to drop him off; and Brown told different stories to different officers regarding the purpose for which Johnson and he were together.

Decided August 29, 2000.

C. Nathaniel Merritt, for appellant.

J. Thomas Durden, Jr., District Attorney, for appellee.

Whether or not in a given case circumstances are sufficient to exclude every reasonable hypothesis save the guilt of the accused, is primarily a question for determination by the jury. This of necessity is so, for we have no legal yardstick by which we can ordinarily determine what in a given case is a reasonable hypothesis, save the opinion of twelve upright and intelligent jurors. Only where the evidence is insupportable as a matter of law may the jury’s verdict be disturbed, even where the evidence is circumstantial.

We will not disturb the jury’s verdict in this case. The circumstantial evidence was sufficient for a rational trier of fact to find Brown guilty beyond a reasonable doubt of trafficking in cocaine. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. We also find no basis for reversal in the trial court’s failure to charge on the definitions of actual and constructive possession. The charge was not requested. Moreover, when the jury asked for clarification, counsel for Brown expressly objected to charging on such definitions: “Well, that’s not what the jury asked for. I’m objecting ... to any additional charges on it. What she [foreperson] requested was the statute as it applied to trafficking and possession.” On appeal, one cannot complain of a judgment, order, ruling, or charge that his own procedure or conduct aided in causing.

Judgment affirmed.

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

       Brown was found not guilty on a second count of possession of marijuana with intent to distribute.

        Singleton v. State, 231 Ga. App. 694 (1) (500 SE2d 411) (1998).

       (Citations and punctuation omitted.) Cummings v. State, 227 Ga. App. 564, 566 (489 SE2d 370) (1997).

         Eason v. State, 234 Ga. App. 595, 596-597 (507 SE2d 175) (1998); Blair v. State, 216 Ga. App. 545, 546-547 (1) (455 SE2d 97) (1995).

       (Punctuation omitted.) Eason v. State, supra at 597; Carter v. State, 188 Ga. App. 464, 465 (1) (373 SE2d 277) (1988).

       (Citations and punctuation omitted.) Lathan v. State, 241 Ga. App. 750, 751 (1) (526 SE2d 350) (1999). See also Cantrell v. State, 230 Ga. App. 693, 695 (498 SE2d 90) (1998).

        Wright v. State, 199 Ga. App. 718, 719 (2) (405 SE2d 757) (1991).


author: Johnson, Chief Judge.

text:
    A00A1294.
    A00A1295.
    JOHNS et al. v. RIDLEY et al. HEARD COUNTY DEPARTMENT OF FAMILY & CHILDREN SERVICES v. JOHNS et al.
    (537 SE2d 746)
   Johnson, Chief Judge.

Jane Johns worked for Heard County Department of Family & Children Services (“DFCS”) as a child protective services worker. She claims that from May 1994 to June 1995 she was harassed by Jere Ridley, her supervisor at DFCS, resulting in claims of libel, slander, intentional infliction of emotional distress and invasion of privacy. Her husband, Thomas Johns, alleges he suffered a loss of consortium and intentional infliction of emotional distress. Both these appeals stem from the trial court’s order granting summary judgment to Ridley and partial summary judgment to DFCS.

Case No. A00A1294

In Johns v. Ridley, Jane and Thomas Johns appeal the trial court’s grant of summary judgment to Ridley. At issue is whether Ridley is immune from liability under OCGA § 50-21-25 (a), which holds that a state employee who commits a tort while acting within his official duties or employment is not subject to lawsuit or liability therefor. Jane Johns claims that Ridley should be individually liable because he acted with actual malice or with an intent to cause injury in the performance of his official functions. Other issues include whether the trial court erred in finding Jane Johns’ claim for invasion of privacy should be dismissed and whether the trial court erred in finding that Thomas Johns does not have a direct claim against Ridley.

1. Jane Johns claims the trial court erred in finding that statutory immunity barred all claims against Ridley individually. We agree.

OCGA § 50-21-25 (a) provides:

This article constitutes the exclusive remedy for any tort committed by a state officer or employee. A state officer or employee who commits a tort while acting within the scope of his or her official duties or employment is not subject to lawsuit or liability therefor. However, nothing in this article shall be construed to give a state officer or employee immunity from suit and liability if it is proved that the officer’s or employee’s conduct was not within the scope of his or her official duties or employment.

The trial court found that Ridley’s conduct fell within the scope of his employment and, therefore, Johns’ suit against him was barred by statutory immunity. Johns apparently concedes that Ridley’s conduct fell within his scope of employment since she does not allege this finding as error on appeal. However, Johns argues that the trial court erred in applying statutory immunity because Ridley acted with actual malice or with actual intent to cause injury in the performance of his official functions.

The 1991 amendment to the Georgia Constitution provides that state officers and employees “may be liable for injuries and damages if they act with actual malice or with actual intent to cause injury in the performance of their official functions.” In the context of official immunity, actual malice means a deliberate intention to do a wrongful act, and such an act may be accomplished with or without ill will and whether or not injury was intended.

On Ridley’s motion for summary judgment, we must construe the evidence in favor of Johns and her husband; Johns and her husband are given the benefit of all doubts and all reasonable inferences therefrom are indulged in their favor. The burden is on Ridley to show that no genuine issue of material fact exists and that he is entitled to summary judgment as a matter of law. Since Ridley has failed to meet this burden, the grant of summary judgment based on statutory immunity was error.

The 13-month course of conduct to which Jane Johns attests establishes that Ridley may have acted with actual malice or with actual intent to cause injury in the performance of his official functions as Director of DFCS and Johns’ supervisor. For example, the evidence shows that when Johns told Ridley she was going to call personnel and report his conduct, Ridley physically threatened her when he stood up, leaned over the desk and drew back his fist as if to hit her. Johns also claims Ridley called her to his office and told her he had killed a dog and stuffed it in the owner’s mailbox because the owner had made him mad. He then reminded Johns that he knew where she lived. Ridley was aware from multiple photographs on Johns’ desk that she had a pet dog. Ridley later called Johns into his office and told her, “you screw me in the back again, I’ll get you and you won’t even know what happened.” Johns further describes a number of other deliberate actions taken by Ridley over the 13-month period in an effort to force Johns to quit.

Whether this evidence is credible or rises to the level of actual malice or actual intent to harm is for a jury to decide. Jane Johns’ complaint and affidavit allege a number of deliberate actions taken by Ridley and assert that Ridley’s conduct has been with actual malice and with actual intent to cause injury, including mental and physical distress, loss of enjoyment of life, and loss of her employment. The intention with which an act is done is peculiarly a question for the jury, and proof of actual malice does not readily lend itself to summary disposition. Since the evidence, construed in favor of Johns, presents facts from which a rational trier of fact could find the existence of actual malice or actual intent to injure, the trial court erred in granting summary judgment to Ridley.

2. The trial court did not err in finding that Jane Johns’ claims for invasion of privacy should be dismissed. An invasion of privacy must fall within one of the following four categories: (1) intrusion upon Johns’ seclusion or solitude, or into her private affairs; (2) public disclosure of embarrassing facts about Johns; (3) publicity which places Johns in a false light in the public eye or (4) appropriation of Johns’ name or likeness for Ridley’s advantage. Jane Johns’ claims for invasion of privacy are based upon Ridley’s alleged intrusion upon her seclusion, solitude and private affairs, specifically her marital relationship and bond.

With regard to this type of invasion of privacy, the Supreme Court has held that the “unreasonable intrusion” aspect involves a prying or intrusion, which would be offensive or objectionable to a reasonable person, into a person’s private concerns. We agree with the trial court’s determination that Jane Johns’ allegations do not constitute an unreasonable intrusion which would support a claim of an invasion of privacy.

Johns worked as a DFCS child protective services supervisor. As part of her job, she wore a pager and was on call twenty-four hours a day, seven days a week for the caseworkers working under her, her supervisor and the various police agencies. Johns’ affidavit alleges Ridley contacted her at her home on a number of occasions. However, she does not allege that any of these conversations involved a discussion of personal or private matters, or matters unrelated to her employment. Johns’ husband spoke with Ridley only one time to tell him that he did not wish to speak with Ridley. Calling Johns at home about work-related matters does not rise to the level of an unreasonable intrusion upon her seclusion or solitude, or into her private affairs. Although Ridley’s conduct as a whole may rise to the level of intentional infliction of emotional distress, Jane Johns’ affidavit simply does not support a cognizable claim for invasion of privacy.

3. The trial court did not err in finding that Thomas Johns does not have a direct claim against Ridley. Thomas Johns’ testimony is that Ridley intentionally inflicted emotional distress upon him by harassing his wife. He testified to no act committed upon him personally. In fact, Thomas Johns’ only direct contact with Ridley was initiated by Thomas Johns, when he attempted to send dead flowers to Ridley’s office. None of the conduct allegedly committed by Ridley was committed against Thomas Johns or in his presence. Thus, the record is devoid of any evidence establishing a direct claim against Ridley for either intentional infliction of emotional distress or invasion of privacy.

Likewise, the record is devoid of any evidence establishing that Thomas Johns has a direct cause of action against DFCS for either intentional infliction of emotional distress or invasion of privacy. Thomas Johns’ only contact with a representative of DFCS was a meeting he had with a Department of Human Resources’ employee where he discussed the situation between his wife and Ridley. The employee promised to look into the matter. Based on the evidence in the record, Thomas Johns’ only possible claim is a derivative loss of consortium claim, and the trial court properly granted Ridley’s and DFCS’s motions for summary judgment on any independent claim alleged by Thomas Johns.

Case No. A00A1295

In Dept. of Family &c. Svcs. v. Johns, DFCS appeals from the trial court’s grant of partial summary judgment to DFCS, claiming it was entitled to summary judgment on all grounds. While the trial court dismissed a number of Jane and Thomas Johns’ claims, it left pending Jane Johns’ claim for intentional infliction of emotional distress, Thomas Johns’ claim for loss of consortium, and a claim for attorney fees. DFCS argues on appeal that summary judgment should have been granted in its favor on all claims.

4. DFCS first claims that the trial court erred in denying its motion for summary judgment with regard to Jane Johns’ claim for intentional infliction of emotional distress. Because sufficient evidence exists for a jury to find intentional infliction of emotional distress by DFCS based on the alleged conduct of its employee Ridley over the 13-month period, we find the trial court did not err in denying DFCS’s motion for summary judgment on this ground.

We find no merit in DFCS’s argument that it cannot be vicariously liable for any intentional harassment by Ridley because DFCS did not ratify Ridley’s conduct. Liability in this case is not predicated on vicarious liability, but on OCGA § 50-21-23, regarding the state’s waiver of sovereign immunity “for the torts of state officers and employees while acting within the scope of their official duties or employment.”

To establish a claim of intentional infliction of emotional distress, Jane Johns must show that (a) through its employee Ridley, DFCS’s conduct was intentional or reckless, (b) the conduct was extreme and outrageous, (c) there is a causal connection between the wrongful conduct and the emotional distress and (d) the emotional distress was severe. The conduct must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions or other trivialities; individuals are “expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind.”

Jane Johns’ affidavit alleges a course of conduct committed by Ridley consisting of 36 separate occurrences of harassment. The conduct began around May 5, 1994, and terminated around June or July 1995. Neither Ridley nor DFCS disputed that the alleged course of conduct occurred. Contrary to DFCS’s assertion, Johns’ claims of harassment are not 36 separate occurrences of intentional infliction of emotional distress. It is only when all the incidents of harassment occurring over the 13-month period are considered together that Johns’ claim for intentional infliction of emotional distress arises. Thus, DFCS’s argument that these claims are barred because some of the incidents occurred outside the 12-month period before Johns filed her notice of claim is without merit.

The trial court noted four indications of outrageousness: (a) the length and continuity of Ridley’s alleged course of conduct; (b) the intent behind the conduct, specifically Ridley’s intent to “punish” Johns; (c) the position of authority and control Ridley held over Johns and (d) the specific instances of harassment involving Ridley’s veiled threat to kill Johns’ dog and stuff it in her mailbox and his act of standing up, leaning over her desk and drawing back his fist as if to hit her. Viewing the 13-month period as a whole, including the two specific incidents cited above, the trial court did not err in denying DFCS’s motion for summary judgment as to Johns’ claim for intentional infliction of emotional distress. “[Reasonable persons might find the presence of extreme and outrageous conduct and resultingly severe emotional distress.”

5. DFCS next argues that even if Jane Johns has a viable claim for intentional infliction of emotional distress, her claim is barred by her failure to comply with OCGA § 50-21-26, requiring notice of a claim against a state department. According to DFCS, Johns’ notice was insufficient because it failed to name any act or omission on the part of DFCS or allege that DFCS condoned Ridley’s behavior. We find that Johns complied with the provisions in OCGA § 50-21-26.

Johns’ ante litem notice reads: “This letter is notice of a claim against the Department and the State of Georgia, pursuant to O.C.G.A. § 50-21-26, on behalf of Mr. and Mrs. Johns. Mr. and Mrs. Johns’s claims are against Mr. Jere Ridley, individually, and in his official position as Director of the Department.” The letter states where the actions of Ridley occurred, describes the actions of Ridley and notes the damages suffered by Jane and Thomas Johns. “Department” is defined in the notice as the Heard County Department of Family & Children Services.

This notice complies with the requirements of OCGA § 50-21-26. Moreover, as we stated in Division 4, this notice was timely; it was filed one month after the alleged period of harassment ceased.

6. DFCS alleges that the trial court erred in failing to grant summary judgment as to Jane and Thomas Johns’ claim for attorney fees. DFCS first argues that since OCGA § 50-21-23 does not specifically provide for the recovery of attorney fees, the state is immune from suit for such a claim. However, this Court has repeatedly held that such a ruling “would create judicially an expanded immunity which the legislature and the voting populace have not chosen to confer on governmental entities.” OCGA § 13-6-11 does not state a cause of action, but merely establishes the circumstances in which a plaintiff may recover the expenses of litigation as an additional element of damages. Therefore, no separate statutory waiver of immunity is required to allow the recovery of such damages against a governmental entity. Accordingly, Jane and Thomas Johns are entitled to recover attorney fees if they can establish the grounds set out in OCGA § 13-6-11.

DFCS also argues that Jane and Thomas Johns are not entitled to attorney fees because their argument in favor of attorney fees evidences that these fees are sought to punish and deter DFCS, and OCGA § 50-21-30 does not allow punitive or exemplary damages against the state. While the Johnses’ argument in support of attorney fees may contain an element of bad faith, the fact is they may be entitled to OCGA § 13-6-11 expenses of litigation as an additional element of their damages. Contrary to DFCS’s assertion, it is well established that attorney fees are not exemplary damages. Although they may often have a punitive effect on the party against whom they are awarded, the purpose of attorney fees is not to punish or penalize; it is to compensate an injured party for costs incurred as a result of the necessity of seeking legal redress for legitimate grievances.

DFCS further maintains that the denial of summary judgment as to the attorney fees issue was error because (1) the Johnses’ notice of claim did not include a claim for attorney fees, and they are, therefore, barred from bringing this claim under OCGA § 50-21-26 (a); and (2) there are no grounds for an award of attorney fees in this case because some of the Johnses’ claims have been dismissed by the trial court, and therefore, a bona fide controversy existed. DFCS did not raise these arguments in its motion for summary judgment. In the trial court, DFCS argued that the Johnses were not entitled to attorney fees because attorney fees constituted exemplary damages. In denying DFCS’s motion for summary judgment on the issue of attorney fees, the trial court found that the claim for attorney fees was not barred by sovereign immunity. The trial court never addressed or considered DFCS’s present contention that the claim for attorney fees fails as a matter of law. “Where a trial court does not rule on an issue, it remains outside the jurisdiction of this Court and we cannot consider it.”

Judgment affirmed in part and reversed in part.

Smith, P. J, and Phipps, J., concur.

Decided July 21, 2000

Reconsiderations denied August 15, 2000 and August 30, 2000

David C. Moss, for appellants.

Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, Senior Assistant Attorney General, Kimberly L. Schwartz, Assistant Attorney General, for appellees.

       Ga. Const, of 1983, Art. I, Sec. II, Par. IX (d); see also Adams v. Hazelwood, 271 Ga. 414 (1) (520 SE2d 896) (1999).

       Id. at 415 (2).

        Fincher v. State of Ga., 231 Ga. App. 49, 50 (497 SE2d 632) (1998); Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832) (1993).

        Fincher, supra; Moore, supra.

       See Hodges v. Youmans, 122 Ga. App. 487, 489-493 (2) (177 SE2d 577) (1970).

       See Barber v. Perdue, 194 Ga. App. 287, 289 (390 SE2d 234) (1990).

        Yarbray v. Southern Bell Tel. &c. Co., 261 Ga. 703, 704-705 (409 SE2d 835) (1991).

       Id. at 705.

       Id. at 705-706.

       See generally Sanders v. Brown, 178 Ga. App. 447, 448-451 (1) (343 SE2d 722) (1986) (a party is not entitled to recover for intentional infliction of emotional distress resulting from having witnessed another party’s intentional infliction of emotional distress).

       See Mears v. Gulfstream Aerospace Corp., 225 Ga. App. 636 (484 SE2d 659) (1997); Trimble v. Circuit City Stores, 220 Ga. App. 498 (469 SE2d 776) (1996).

        Bridges v. Winn-Dixie Atlanta, 176 Ga. App. 227 (335 SE2d 445) (1985).

       (Punctuation omitted.) Yarbrough v. SAS Systems, 204 Ga. App. 428, 429 (3) (419 SE2d 507) (1992).

       (Punctuation omitted.) Moses v. Prudential Ins. Co. &c., 187 Ga. App. 222, 225 (369 SE2d 541) (1988); Jenkins v. Gen. Hosp. of Humana, 196 Ga. App. 150, 152 (395 SE2d 396) (1990).

       See Bridges, supra at 230 (1) (“the existence of a special relationship in which one person has control over another, as in the employer-employee relationship, may produce a character of outrageousness that might otherwise not exist”).

        Yarbray, supra at 706 (2).

        Eastern Air Lines v. Fulton County, 183 Ga. App. 891, 895 (4) (360 SE2d 425) (1987).

        Waters v. Glynn County, 237 Ga. App. 438, 440 (3) (514 SE2d 680) (1999).

        City of Warner Robins v. Holt, 220 Ga. App. 794 (470 SE2d 238) (1996); Dept. of Transp. v. Fru-Con Constr. Corp., 206 Ga. App. 821, 826 (5) (426 SE2d 905) (1992).

       Id.

        Waters, supra at 441 (4).


author: Ruffin, Judge.

text:
    A00A0967.
    BARNETT v. THE STATE.
    (538 SE2d 812)
   Ruffin, Judge.

Following a bench trial on stipulated facts, Jackie Barnett was found guilty of possessing cocaine and giving a false name to an officer. In his sole enumeration of error, Barnett challenges the trial court’s denial of his motion to suppress. For reasons that follow, we affirm.

In reviewing a trial court’s denial of a motion to suppress, we view the evidence in the light most favorable to upholding that court’s ruling. “It is the trial court’s duty to resolve conflicts in the evidence, and its findings of credibility and fact will not be disturbed on appeal unless they are clearly erroneous.”

On June 5, 1999, at approximately 10:00 p.m., Athens-Clarke County Police Officer Jeffrey Herold was participating in a sting operation, in which other officers were posing as prostitutes. While the undercover officers were talking to people in a white van, a known prostitute shoved the officers aside and got into the van. When Herold saw the van, which had a broken taillight, he activated his blue lights and stopped the van.

As Herold approached the van, he saw Barnett, who was sitting in the front passenger seat, attempting to stuff a piece of paper into the air conditioner vent using his left hand. Herold also saw that Barnett’s right hand was moving, but, because of poor lighting, he was unable to see what Barnett was doing with that hand. For safety purposes, Herold ordered Barnett to show his hands, which Barnett failed to do. After demanding that Barnett show his hands “[a]t least two or three times,” Herold and another officer reached in the window, grabbed Barnett’s hands, and forced his hands open to ensure that he did not have a weapon. Barnett’s hands were empty. The officers then removed Barnett from the van, and Herold found a scrap of paper that contained crack cocaine on the floorboard of the passenger side.

On appeal, Barnett contends that there was no evidence that he posed any threat to the officers’ safety. Thus, he contends that the officers had no basis for forcing his hand open or for requiring him to exit the car. Barnett asserts that it was this unlawful police activity that caused him to drop the piece of paper in which he had an expectation of privacy. We disagree.

As Barnett acknowledges, the police acted within their authority in stopping the van. Having validly stopped the van, the police were permitted to conduct a reasonable search for weapons regardless of whether they had probable cause to arrest Barnett. A search is permitted even if the officer is not certain that an individual is armed so long as “a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.”

Here, Barnett was a passenger in a van that had just picked up a known prostitute. Although Barnett was not driving the van, “the officers need not disregard the passenger in the [van] given the number of cases in which police officers are attacked, sometimes fatally, by passengers in vehicles.” Herold could see that Barnett was moving his hands inside the car, and it was reasonable to fear that Barnett was reaching for a gun. Accordingly, Herold acted within his authority in demanding that Barnett show his hands.

According to Barnett, even if the officers had the authority to demand that he exit the van, they exceeded their authority in forcibly grabbing his arms and opening his hands. Again, we disagree. Normally, searches for weapons involve a two-step process where an officer first pats down the surface of a person’s clothing before intruding further. However, “[w]hen faced with threatening conduct by a suspect, an officer is entitled to take reasonable action to protect himself, which may involve an immediate intrusive search.” Barnett’s failure to comply with repeated police demands that he show his hands constitutes such threatening conduct. Accordingly, the police officers acted reasonably in grabbing his arms and opening his hands to ensure that he did not possess any weapons.

Decided August 30, 2000.

Elizabeth M. Grant, for appellant.

Harry N. Gordon, District Attorney, Henry R. Thompson, Assistant District Attorney, for appellee.

As the police acted within their lawful authority, it cannot be said that they coerced Barnett into abandoning the crack cocaine. Accordingly, the trial court did not err in denying Barnett’s motion to suppress.

Judgment affirmed.

Andrews, P. J., and Ellington, J., concur.

        Wilburn v. State, 230 Ga. App. 619 (1) (497 SE2d 380) (1998).

       Id.

        Williams v. State, 236 Ga. App. 102, 105 (2) (511 SE2d 216) (1999).

       (Punctuation omitted.) Id.

        Dowdy v. State, 209 Ga. App. 311, 312 (433 SE2d 293) (1993).

       See Sultenfuss v. State, 185 Ga. App. 47, 48 (1) (363 SE2d 337) (1987) (officers did not exceed authority in requiring defendant to show his hands and step from car and in forcibly removing him when he failed to comply).

        Thomas v. State, 231 Ga. App. 173, 174 (498 SE2d 760) (1998).

       Id. at 175.

         See id. (defendant’s refusal to remove hand from pocket reasonably caused officer to fear for Ms safety).

       See Edwards v. State, 239 Ga. App. 44, 46 (1) (518 SE2d 426) (1999) (abandonment not coerced where police conduct lawful).