author: Ruffin, Judge.

text:
    A00A0489.
    SMITH v. THE STATE.
    (534 SE2d 903)
   Ruffin, Judge.

Jermaine Anton Smith was charged with numerous offenses relating to several different incidents occurring between May 16 and October 31,1995. Following a jury trial, Smith was convicted of three counts of rape, one count of kidnapping, two counts of aggravated sodomy, one count of armed robbery, and three counts of burglary. He appeals, raising several issues. For reasons discussed below, we affirm his conviction on all counts except the armed robbery count, which we reverse for insufficient evidence.

1. In his first enumeration, Smith contends that the trial court erred in allowing evidence of two pretrial lineups in which two of the rape victims identified him as the attacker. In considering these contentions, we note that:

[c]onvictions based on eyewitness identification at trial following a questionable pre-trial identification will be set aside only if the pre-trial identification was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

With respect to the first incident, K. C. testified that Smith raped her at her house on May 16, 1995. Although he had a pair of white pantyhose over his head, she immediately recognized him because he had come to her house several times previously that evening, introducing himself as Antonio. K. C. testified that, after Smith finished raping her, he took his mask off, and they talked for a while before he left. After he left, K. C. called the police, who took her to Grady Hospital for a pelvic examination. K. C. was subsequently shown several photographic and live lineups, none of which involved Smith, and did not identify any of the individuals shown as her assailant.

On June 10, 1995, Smith was arrested on other charges, and Detective Donald Chase arranged for K. C. to view a live lineup involving Smith and six other individuals. K. C. identified Smith as the assailant, but placed a question mark on the written form in which she made her identification. When Detective Chase asked her about the question mark, she stated that she had tried to put the incident out of her mind, but that she was sure Smith was the assailant. When questioned by Detective Chase, Smith admitted that he had been with K. C. the night in question, but denied having any sexual encounter. However, a subsequent DNA test showed that Smith’s DNA matched sperm found during K. C.’s pelvic examination.

On appeal, Smith does not articulate exactly why he believes the pretrial identification by K. C. was inadmissible, but simply points out that K. C. initially placed a question mark on the form identifying Smith, indicating that she was not sure of her identification. Of course, this would not go to the suggestiveness of the lineup, but to the strength of her identification. Since Smith makes no showing that the lineup was impermissibly suggestive, it is not necessary to consider whether there was a substantial likelihood of irreparable misidentification. However, even if we were to consider the issue, we could not say that there was a substantial likelihood of irreparable misidentification, given that Smith admitted to being with K. C. the night of the attack and that his DNA was found in her vagina. Accordingly, the trial court did not err in allowing evidence of the pretrial identification.

With respect to the second incident, A. G. testified that she awoke around 2:30 a.m. on June 10, 1995, to find a man holding a knife at her throat. The man, who was wearing blue denim shorts and had a white stocking over his face, forced A. G. to perform oral sex on him and then raped her. After he finished, the man took off his stocking mask and smoked a cigarette in view of A. G. The next morning, A. G. was shown a photographic lineup including pictures of Smith and several other individuals. A. G. immediately identified Smith as the assailant. The officer who showed her the lineup testified that A. G. showed no doubt or hesitation in identifying Smith. A. G. identified Smith at trial as the rapist.

On appeal, Smith argues that the photographic lineup was impermissibly suggestive because he was the only individual shown without a shirt. We question whether, simply because an attacker was not wearing a shirt at the time of the attack, a photographic lineup containing a picture of a shirtless suspect is unduly suggestive. Such a lineup is far less suggestive than, for example, one in which the suspect is shown wearing the same clothing worn by the attacker. Nevertheless, even assuming that the lineup was suggestive, we cannot say that it was so suggestive as to create a substantial likelihood of irreparable misidentification. A. G. had the opportunity to view her attacker for a significant period of time both during and after the rape; the lineup occurred the day after the attack; A. G. showed no doubt or hesitation in making her pretrial identification; and she positively identified Smith at trial as the attacker. Considering the totality of the circumstances, the trial court did not err in admitting evidence of the pretrial identification.

2. Without citing any authority, Smith asserts that the trial court erred in allowing A. G.’s mother to testify that A. G. had been a “basket case” since the attack. The only objection raised by A. G.’s counsel went to the relevancy of this testimony. We have previously recognized that evidence of a purported rape victim’s state of mind following the attack may corroborate her claim that she was raped. “Evidence of doubtful relevancy or competency should be admitted and its weight left to the jurors.” Accordingly, the trial court did not abuse its discretion in allowing such testimony over Smith’s relevancy objection. Moreover, Smith has wholly failed to show how admission of the mother’s testimony, which occupies one paragraph of the more than 500-page trial transcript, had any impact on the outcome of the trial.

3. Joyce Harbin, a crime scene technician for the City of East Point, testified that certain fingerprints found at one of the crime scenes belonged to Smith. In response to the prosecutor’s question, “How do you know those are his prints?”, Harbin responded, “Because they match up with the criminal history —,” at which point the prosecutor cut her off. Smith’s attorney moved for a mistrial on the grounds that the response placed Smith’s character in issue. The trial court denied the motion for mistrial but issued curative instructions advising the jury to disregard the witness’ answer. Smith’s attorney then renewed his motion for mistrial.

Smith’s third enumeration on appeal asserts that “[t]he trial court erred by allowing the State to place Defendant’s character into issue during the trial of this case.” Smith provides no argument with respect to this enumeration but simply recites the facts mentioned above and then states conclusorily that “[t]he violation of O.C.G.A. § 24-9-20 (b) resulted in harmful error.” To the extent that any type of “argument” may be inferred from Smith’s recitation of the facts, it appears that he is contending that the trial court erred in denying his motion for mistrial.

“The decision whether to grant a mistrial or give a curative instruction ordinarily rests in the trial judge’s sound discretion.” “[TJhat discretion will not be interfered with on appeal unless it is apparent that a mistrial is essential to the preservation of the right to a fair trial.” In Dimauro v. State, we held that the trial judge did not err in refusing to grant a mistrial after a police witness testified that he had used a photograph of the defendant on file from “a previous arrest.” We held that the court’s curative instruction “served to prevent the alleged harmful testimony from having any prejudicial impact on appellant.” Similarly, in Dunn v. State, the Supreme Court held that a mistrial was not required where a State’s witness testified that the defendant had an arrest record, because the trial court instructed the jury to disregard the testimony. The court stated that “Reference to an arrest, made in the presence of the jury without other detail, is harmless error where proper instructions are given to disregard the reference to the past arrest and it is not error to overrule a motion for mistrial based thereon.”

In this case, the reference to Smith’s criminal history was fleeting and incomplete, and the trial court immediately instructed the jurors to disregard it. Smith makes absolutely no showing in his brief (indeed, he does not even assert as a conclusion) that the grant of a mistrial was necessary to preserve his right to a fair trial. Under the circumstances, therefore, we cannot say that the trial court abused its discretion in electing to give curative instructions rather than granting a mistrial.

4. In his final enumeration, Smith contends the evidence was insufficient to support his conviction of armed robbery. With respect to this charge, the indictment alleged that Smith took $2 from K. C. On appeal, Smith argues that, although there was evidence he demanded money during the attack, there is no evidence that he actually took any money. The State in. its brief does not point to any such evidence but simply asserts that Smith waived the right to raise this issue by failing to address it in a motion for new trial.

K. C. testified that, after Smith threatened to rape her if she did not give him some money, she told him that she had $2 in her jeans pocket. However, the State fails to point to any evidence that the money was actually taken. In reviewing K. C.’s testimony, we see no place where she stated that Smith took any money. In the absence of any evidence that Smith actually took the money, the jury had no evidentiary basis to convict him of armed robbery.

With respect to Smith’s alleged failure to raise this issue in his motion for new trial, we note that the motion did assert the general ground of evidence insufficiency, although it did not state specifically what evidence was lacking. More fundamentally, however, the State is simply incorrect in asserting that the failure to challenge the sufficiency of the evidence in a motion for new trial precludes appellate review of the issue. OCGA § 5-5-40 (g) specifically states that “[o]n appeal, a party shall not be limited to the grounds urged in the motion [for new trial] or any amendment thereof.” OCGA § 5-6-36 (a) states that, except in limited circumstances,

the motion for new trial need not be transmitted as a part of the record on appeal; nor shall it be necessary that the overruling thereof be enumerated as error . . . , as the appellate court may consider all questions included in the enumeration of errors provided for in Code Section 5-6-40. The entry of judgment on a verdict by the trial court constitutes an adjudication by the trial court as to the sufficiency of the evidence to sustain the verdict, affording a basis for review on appeal without further ruling by the trial court.

Thus, “an appellant is entitled to argue all enumerations of error which are properly raised in addition to the matters contained in the new trial motion.” Therefore, Smith is not barred from challenging the sufficiency of the evidence as to an essential element simply by the failure to specifically raise such issue in his motion for new trial.

Decided May 24, 2000.

Cynthia W. Harrison, for appellant.

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

The State also suggests that Smith waived the right to raise this issue based on certain comments made by his attorney in connection with his motion for a directed verdict. While arguing his motion, Smith’s attorney stated that “the evidence has not indicated that the money was taken from the immediate presence of [K. C.] It was taken from jeans that were across the room from her.” According to the State, this comment amounts to a concession that money was in fact taken from K. C.’s jeans.

The State cites no authority for the proposition that, if defense counsel misstates the facts to his client’s detriment while arguing a directed verdict motion in a jury trial, the defendant is precluded from challenging the sufficiency of the evidence on appeal. Such a proposition has little to recommend it, since it is the jury, and not the judge, that is the trier of fact, and it must decide whether the State has proven beyond a reasonable doubt the essential elements of the crime based on the evidence introduced at trial. In any event, we do not think defense counsel’s comments in this case are properly construed as an admission or stipulation that the money was in fact taken. Rather, we construe that counsel was simply arguing that if the money was taken, it was not taken from the victim’s immediate presence.

Because the taking of property of another is an essential element of the crime of armed robbery, and the State did not prove that any money was in fact taken from K. C., Smith’s conviction for armed robbery must be reversed.

Judgment affirmed in part and reversed in part.

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

        Zachery v. State, 238 Ga. App. 191, 193 (3) (517 SE2d 71) (1999).

       See James v. State, 157 Ga. App. 645, 646-647 (2) (278 SE2d 187) (1981).

       See Whitaker v. State, 269 Ga. 462, 463 (2) (499 SE2d 888) (1998).

       Smith also suggests that he was denied the right to have counsel present during this lineup. This contention is without merit. See Ferguson v. State, 211 Ga. App. 218, 219-220 (1) (438 SE2d 682) (1993) (no right to have counsel present for preindictment lineup).

       The night before, A. G. had been shown photographs of other individuals, and stated that one of them was similar in build to the attacker. She did not, however, identify this person as the rapist.

        See Huff v. State, 239 Ga. App. 83, 85-86 (1) (519 SE2d 263) (1999).

       Smith’s counsel raised the relevancy objection after the prosecutor asked, “And how has [A. GJ been since that time?” After the court stated that it would allow a “brief exploration” of the issue, the mother gave a short answer including the “basket case” comment. Counsel did not move to strike the mother’s response or otherwise renew his objection after her response. For purposes of this appeal, we assume that the objection was sufficient to preserve this issue for our review.

       See Harvey v. State, 165 Ga. App. 7-8 (1) (299 SE2d 61) (1983); Jones v. State, 159 Ga. App. 472 (283 SE2d 691) (1981).

       (Punctuation omitted.) Hestley v. State, 216 Ga. App. 573, 576 (2) (455 SE2d 333) (1995).

       OCGA § 24-9-20 (b) deals with the admissibility of character and impeachment evidence when the defendant elects to testify at trial. Smith did not, however, testify at trial.

        Dimauro v. State, 185 Ga. App. 524 (2) (364 SE2d 900) (1988).

       (Punctuation omitted.) Cowards v. State, 266 Ga. 191, 194 (3) (c) (465 SE2d 677) (1996).

        Dimauro, supra at 524-525 (2).

       Id. at 525 (2).

       251 Ga. 731, 734 (4) (309 SE2d 370) (1983).

       (Punctuation omitted.) Id.

       See Court of Appeals Rule 27 (c) (3) (ii) (“A contention that certain matters are not supported by the record may be answered by reference to particular pages where they appear.”).

       See Woodall v. State, 235 Ga. 525, 533 (221 SE2d 794) (1975) (taking of property of another is essential element of armed robbery).

        Hulsey v. Sears, Roebuck & Co., 138 Ga. App. 523, 525 (1) (226 SE2d 791) (1976). Citing McGhee v. State, 237 Ga. App. 541, 544-545 (1) (b) (515 SE2d 656) (1999), the State asserts in its brief that “[r]eeently, this Court has said that ‘[I]f the opportunity to present such a claim was available, the failure to seize that opportunity is a procedural bar to raising that issue at a later time.’ ” (Emphasis supplied.) However, this is a clear misrepresentation of the holding in McGhee, which did not deal with a claim of evidence sufficiency, but with a claim of ineffective assistance of counsel. As noted in McGhee, ineffective assistance claims must be asserted at the earliest possible time. If an appellant had the chance to assert such a claim in a motion for new trial, his failure to do so would preclude appellate consideration.

       Compare Scott v. State, 201 Ga. App. 162-163 (1) (410 SE2d 362) (1991) (defendant waived right to contest evidence sufficiency following bench trial, where counsel led trial court to believe he was stipulating to certain facts).

       See Woodall, supra.


source: Caselaw Access Project

license: Public Domain

text:
    A00A0551.
    In the Interest of J. M. M. et al., children.
    (534 SE2d 892)
   Ruffin, Judge.

The juvenile court entered an order terminating the parental rights of appellant with respect to her two daughters, J. M. M. and J. A. M. Appellant contends that there was insufficient evidence that she is presently unfit to parent. We disagree and affirm.

A juvenile court may terminate parental rights only if there is “present clear and convincing evidence of parental misconduct or inability” and termination would be in the best interest of the child. The juvenile court determines parental misconduct or inability by finding that (1) the child is deprived; (2) lack of proper parental care or control by the parent in question caused the deprivation; (3) the deprivation is likely to continue or will not likely be remedied; and (4) continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child.

In determining whether a child is without proper parental care or control, the court must consider a number of factors, three of which are relevant here: (1) whether the parent has a medically verifiable mental or emotional deficiency that renders her unable to meet the child’s needs; (2) whether the parent has an excessive use or history of chronic unrehabilitated substance abuse that makes her incapable of meeting the child’s needs; and (3) “[ijnjury or death of a sibling under circumstances which constitute substantial evidence that such injury or death resulted from parental neglect or abuse ” In addition, when the child is not in the custody of the parent, the court shall consider whether the parent “without justifiable cause has failed significantly for a period of one year or longer” prior to the filing of the termination petition to comply with a court-ordered plan designed to reunite her with the child.

On appeal of a termination of parental rights, we view the evidence in the light most favorable to the juvenile court’s decision to determine whether any rational trier of fact could conclude by clear and convincing evidence that the parent’s rights to custody have been lost. We do not weigh the evidence or determine the credibility of the witnesses, and we defer to the juvenile court’s factfinding.

Applying this standard, the record shows that appellant has had four children, all fathered by her husband, James. Her first child, a boy, was born when appellant was 16 years old. James allegedly physically abused the boy, who now lives with his maternal grandmother. Appellant’s second child, a girl, was born when appellant was 17 years old. This child died at the age of three months after appellant allegedly rolled on top of her and suffocated her.

Appellant’s third child, J. M. M., was born on September 14, 1994, when appellant was 18 years old. On October 26,1994, J. M. M. was taken to the hospital with severe bruising on her face. Appellant testified that J. M. M. was home with her father when the injuries occurred. On November 9, 1994, J. M. M. was taken to the hospital again and was found to have a broken leg. The Department of Family & Children Services (DFCS) obtained emergency custody of J. M. M. on November 10, 1994, and after a hearing, the juvenile court ruled that she was deprived. That order was not appealed. J. M. M. was placed with her mother’s aunt and uncle.

DFCS developed a case plan to reunite appellant with J. M. M., and the plan was approved by the juvenile court. The plan required appellant to (1) visit with J. M. M. weekly, if possible; (2) successfully complete parenting classes or group therapy as required by her DFCS caseworker; (3) submit to a psychological evaluation and follow any resulting recommendations; (4) pay child support in the amount of $10 per month; (5) use nonphysical means of discipline with J. M. M.; and (6) participate in a support group for battered women. According to Beth Miller, appellant’s first DFCS caseworker, appellant failed to meet these requirements. Between December 1994 and September 1995, appellant visited J. M. M. only about once per month; she enrolled in a parenting class but dropped out after three sessions; she paid child support only once; and she did not participate in a battered women’s support group. Appellant did undergo a psychological evaluation but failed to attend recommended followup counseling sessions.

In August 1995, a Citizens Review Panel reviewed J. M. M.’s situation and recommended termination of appellant’s parental rights. The juvenile court entered an order extending DFCS’ custody of J. M. M. and continuing the same case plan. Miller testified that, following the court’s order, she tried again to convince appellant to take a parenting class. She also discussed with appellant “the irregular visitation and the need to pay child support.” Appellant eventually completed a parenting class in October 1995.

Also in August 1995, J. M. M. was diagnosed with fetal alcohol syndrome. Appellant was pregnant with a fourth child at the time. As a result of the fetal alcohol syndrome diagnosis, appellant’s case plan was amended to include the requirement that she complete a substance abuse program. According to Miller, appellant told her that she began drinking heavily after the death of her second child. However, appellant failed to understand that her drinking during pregnancy had an effect on any child being carried in the womb. Miller testified that appellant never completed a substance abuse program while Miller was the caseworker. Miller enrolled her in a program, but appellant would always say “that she was going to go and be there but, yet, would not follow through.” In October 1995, appellant gave birth to her fourth child, J. A. M., who was temporarily placed with her maternal grandmother. After holding a hearing, the juvenile court ruled that J. A. M. was deprived and would remain in the custody of DFCS. This order was not appealed.

In March 1996, the juvenile court entered an order continuing J. M. M. and J. A. M. in the custody of DFCS. The order noted that an additional requirement had been added to the case plan — that appellant “[r]emain drug and alcohol free and submit to periodic screens.” Miller testified that appellant and her husband were then separated and that she had trouble locating appellant. After she found appellant, Miller took her for an unannounced drug screen on May 1, 1996, which was positive for alcohol and marijuana. Six days later, appellant was taken for another drug screen immediately after a court hearing, and the results were negative. Appellant was supposed to get additional drug screens as part of her treatment program, but she did not follow the program.

Following a hearing in May 1996, the juvenile court entered another order extending DFCS’ custody of J. M. M. The order, which was not appealed, stated that appellant had a volatile relationship with her husband, that she had moved several times and did not have a permanent address, that she had failed to complete recommended counseling programs, and that she had a “history of chronic, unrehabilitated substance abuse.” The order added to the existing case plan the requirements that appellant (1) “[p]rovide a stable, adequate, and safe residence”; (2) notify her caseworker of changes in her address, telephone number, or living arrangements; and (3) find stable employment or other means of providing for J. M. M.

Miller testified that from the date of that order until she left DFCS in August 1996, “basically there was no change” in appellant’s lack of compliance with the case plan. Appellant moved frequently and had an unstable personal life. One morning she told a Citizens Review Panel that she planned to marry a trucker; later that day she told Miller that she wanted to reconcile with her husband. She continued to miss counseling appointments and visitations with her children, even though she lived on a bus route and Miller offered her bus tickets. Miller reviewed the case plan with appellant on a monthly basis and explained that appellant’s parental rights could be terminated if she did not comply with the plan. According to Miller, “[t]he problem was, she was good at verbalizing what her intents were to get the kids back but as far as a consistent follow through, that didn’t happen.”

In August 1996, a different DFCS caseworker, Karen Sisk, took over the case of J. M. M. and J. A. M. At that point, appellant was living in South Carolina with a new boyfriend, John Moore, and his mother. Appellant indicated that Ms. Moore would help her take care of the girls, but when Sisk tried to evaluate Ms. Moore’s situation, she was unable to find her. Sisk later learned that appellant and John Moore had left Ms. Moore’s home and moved twice by Thanksgiving 1996.

On February 19, 1997, DFCS filed a petition to terminate appellant’s parental rights. After a hearing later that month, the juvenile court entered an order extending DFCS’ custody of J. M. M: pending the outcome of the termination hearing. In late February, appellant asked Sisk to evaluate her South Carolina residence for placement of J. M. M. and J. A. M. South Carolina authorities completed the evaluation through an interstate compact agreement and disapproved the placement. Since Sisk became the caseworker, appellant has visited her daughters more regularly, but she still misses visitations. Appellant did not visit J. M. M. and J. A. M. at all in December 1996 because she was having “some problems” with her boyfriend, Moore. They reconciled, however, and appellant continued to live with Moore, although she remained married to the girls’ father. Sisk encouraged Moore to come to the visitations, as he would be a primary caretaker if custody were returned to appellant, but Moore attended only one visit and the girls did not know him. At one point, Sisk asked Moore for some information over the telephone, and he “became belligerent and began to curse.”

At the time of the termination hearing, appellant still had not completed a substance abuse treatment program. Sisk testified that she had tried three times to contact appellant for a drug screen but could not reach her. Appellant had paid only $80 in child support and was $210 in arrears. Although appellant claimed to be enrolled in adult education classes, Sisk received no verification of this.

Sisk testified that J. M. M. and J. A. M. are currently in suitable placements with relatives and that they are adoptable.

Dr. Frances Hinchey, the psychologist who evaluated appellant, testified that she suffers from a personality disorder, is immature and self-centered, has difficulty maintaining a stable lifestyle, and does not empathize well with the needs of others. Dr. Hinchey concluded that appellant is not “a good candidate to be a custodial parent,” particularly with respect to J. M. M., who will require “considerable academic remediation” due to the fetal alcohol syndrome. According to Dr. Hinchey, the children would be “in danger” if placed in their mother’s custody because she is not likely to change. Dr. Hinchey also testified that she smelled alcohol on appellant’s breath during one visit.

Appellant’s aunt testified that appellant had no parental relationship with her son. The aunt also testified that she saw appellant hitting her son on the head at a family gathering in 1996. Another witness testified that appellant does not contribute to her son’s care, that she was using drugs the night her second child died, that she “never shed a tear” when the child died, and that she never puts her children ahead of herself. Finally, J. M. M.’s custodial parent testified that appellant would sometimes schedule visits with J. M. M. and not appear.

Based on this evidence, the juvenile court found that appellant had not complied with the case plans designed to reunite her with her children, that she had a history of unrehabilitated substance abuse, and that she was not likely to change. Thus, the court concluded that appellant could not adequately care for her children, and it terminated her parental rights.

Appellant concedes that J. M. M. and J. A. M. are deprived and that the deprivation is caused by a lack of proper parental care or control. She argues, however, that there is no evidence that the deprivation is likely to continue. According to appellant, the juvenile court based its conclusions on stale evidence and failed to consider her recent progress. We disagree.

“The past conduct of the parent is properly considered by the court in determining whether . . . conditions of deprivation are likely to continue.” There was ample evidence of appellant’s past parental unfitness. First, she had no parental relationship with her oldest child, and she smothered her second child to death while apparently on drugs. Second, she has been diagnosed with a personality disorder that impairs her ability to meet the needs of her children. The psychologist who evaluated appellant testified that this disorder is unlikely to change over time and that her children would be “in danger” if returned to her custody. Third, there was evidence that appellant has a chronic, unrehabilitated substance abuse problem. Among other things, appellant admitted that she began drinking heavily after the death of her second child; her third child, J. M. M., has been diagnosed with fetal alcohol syndrome; appellant failed an unannounced drug screen even though she knew alcohol abuse was an issue in this case; her psychologist smelled alcohol on her breath during a counseling session; and she has never completed a substance abuse treatment program. Fourth, although the DFCS case plans designed to reunite her with her children were in place for more than two and one-half years before the termination hearing, appellant never completed the goals of those plans. She paid only about one-third of the child support she owed, did not follow through with recommended counseling, missed scheduled visits with her children, and did not complete a substance abuse treatment program. Additionally, she failed to establish a safe, stable residence and instead moved frequently and had volatile personal relationships.

Appellant insists that “May of 1996 was a turning point,” after which “her efforts increased dramatically.” The record does show that appellant eventually completed a parenting class, paid some child support, and began visiting her children more regularly. But other case plan goals, such as mental health counseling and substance abuse treatment, remained unfulfilled. In addition, appellant moved out of the state and began living with a man who did not know her children and showed no interest in them, and South Carolina officials disapproved their residence as a placement for J. M. M. and J. A. M. And, the psychologist testified that appellant’s personality disorder is unlikely to improve. Thus, appellant’s recent efforts, “while commendable, are insufficient to invalidate the juvenile court’s finding of clear and convincing evidence demonstrating that the deprivation was likely to continue.” Moreover, “[t]he court must base its decision on more than positive promises of good behavior which the past has proven will not be carried out.”

Because we conclude that there was sufficient clear and convincing evidence that the deprivation of J. M. M. and J. A. M. would likely continue if they were returned to appellant’s custody, we affirm.

Decided May 24, 2000.

Quillian, Lonson & Edwards, Michael L. Edwards, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Beckmann & Lewis, Leo G. Beckmann, Jr., for appellee.

Judgment affirmed.

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

       OCGA § 15-11-81 (a).

       OCGA § 15-11-81 (b) (4) (A).

       OCGA § 15-11-81 (b) (4) (B) (i).

       OCGA § 15-11-81 (b) (4) (B) (ii).

       OCGA § 15-11-81 (b) (4) (B) (vi).

       OCGA § 15-11-81 (b) (4) (C) (iii).

        In the Interest of M. N. H., 237 Ga. App. 471, 472 (1) (517 SE2d 344) (1999).

       Id.

       Some of these facts are taken from unappealed interim orders of the juvenile court. Appellant does not challenge the factual findings in those orders.

       The plan was also designed to reunite J. M. M. with her father. As he voluntarily-relinquished his parental rights in August 1996, however, we do not discuss the plan as it applied to him.

       See In the Interest of L. H., 236 Ga. App. 132, 134 (511 SE2d 253) (1999) (“Since no appeal was taken from the deprivation order, [the parent] is bound by that determination.”).

       (Punctuation omitted.) Id. at 136.

       See id. at 135-136 (parent’s inability to care for previous children was “properly considered in the decision to terminate her parental rights”).

       See id. at 135 (“A mental disability that renders a parent incapable of caring for the child is a valid legal basis for termination.”) (punctuation omitted).

       See In the Interest of M. N. H., supra at 473-474 (failure to meet goals of reunification plan will support termination).

        In the Interest of J. C., 237 Ga. App. 533, 536 (1) (515 SE2d 847) (1999); see also In the Interest of J. S., 232 Ga. App. 876, 880 (502 SE2d 788) (1998) (“a few months of partial stability does not establish for the court that the parents are capable of maintaining the progress”) (punctuation omitted).

        In the Interest of C. W. D., 232 Ga. App. 200, 204 (1) (501 SE2d 232) (1998).

       As appellant does not challenge the sufficiency of the evidence to support the juvenile court’s conclusion that termination of appellant’s parental rights was in the best interests of the children, we need not consider that issue.


author: Eldridge, Judge.

text:
    A00A1266.
    AVERY v. THE STATE.
    (534 SE2d 897)
   Eldridge, Judge.

Quinton Avery was convicted by a jury of the offenses of aggravated assault, violation of OCGA § 16-11-106, and armed robbery. Avery appeals from the denial of his motion for new trial. Without challenging the sufficiency of the evidence, Avery raises four enumerations of error.

At trial, the evidence showed the following. On March 22, 1995, Elijah Lofton was visiting relatives in Bowen Homes. Lofton left his relatives’ home between 10:30 and 11:00 p.m. As he was walking to his car, Lofton was approached by Avery and Spencer Compton Fluellen (“Compton”). Lofton testified that the area was well lit and that he recognized both men. Lofton further testified that he had known both men for at least eight to ten years. When the two men were three to five feet from him, Lofton testified that he noticed that Avery was carrying a semiautomatic handgun. Lofton testified that he asked the two men, “What’s up?” As Lofton turned to face Compton, Avery raised the gun and pointed it at Lofton’s left leg and fired a shot. The bullet shattered Lofton’s leg just above his left knee. After being shot, Lofton was standing on his right leg. Lofton testified that Compton circled behind him and “tripped his good leg” causing him to fall.

Avery demanded that Lofton, “Give it up.” In response to Avery’s demand, Lofton threw $200 cash, his gold necklace, and his car keys in the direction of Avery and Compton. Both men picked up the items. Lofton testified that Avery then stated, “Oh, boy, you know you got to go, you know[,] you know me, I know you.” Avery placed the gun to Lofton’s head. A neighbor who had witnessed the event shouted, “No Fat, . . . don’t do it,” and Avery and Compton took off running.

1. Avery argues that the trial court erred in allowing the introduction of similar transaction evidence. We disagree.

Before evidence of an independent offense or act may be admitted into evidence, the State must make three affirmative showings: First, the State must demonstrate that it seeks to introduce such evidence for an appropriate purpose, such as illustrating the defendant’s identity, intent, course of conduct, or bent of mind; second, the State must show sufficient evidence to establish that the accused committed the independent offense or act; and third, the State must demonstrate a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter. Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991). The trial court made such determination prior to trial after the prosecution made a proper showing.

The law does not require that a similar transaction crime be identical to the crime charged. There can be a substantial variation of circumstances where there exists a logical connection between crimes which are essentially dissimilar. The issue of admissibility of extrinsic transactions has never been one of mere similarity. It is, rather, relevance to the issues in the trial of the case. The State may only have the burden of showing a logical connection between crimes which are essentially dissimilar. When similar transaction evidence is being introduced to prove motive, intent, or bent of mind, it requires a lesser degree of similarity to meet the test of admissibility than when such evidence is being introduced to prove identity.

(Citation and punctuation omitted; emphasis in original.) Maxey v. State, 239 Ga. App. 638, 640-641 (3) (521 SE2d 673) (1999).

In this case, the State introduced the similar transaction evidence to show bent of mind, course of conduct, and modus operandi. The evidence relating to the similar transaction revealed that on December 12, 1995, the victim, Eric Harris, was driving through Bowen Homes and stopped to talk with a girl he knew. Harris testified that while he was standing on the street talking, he noticed Avery and several other men standing on a nearby wall. Harris further testified that he knew Avery and the other men, that they were friends, and that he had known Avery for about seven years. One of the men, Steve Beasley, came over and said to Harris that “Tony” was looking for him. Harris asked Beasley to tell Tony he would be back shortly. When Harris made such statement, the girl shook her head no.

Harris returned about five or ten minutes later, and Tony was standing on the street. Harris spoke with Tony shortly before Tony was called into his house. Harris told Avery and the other men to tell Tony he would be back. As he turned around, Harris was shot from behind in his left thigh by Irvin Brown. As Harris turned around, he saw Avery coming across the street. Pursuant to Brown’s demand, Harris gave him everything in his pockets, including the keys to his truck. Avery took the truck keys from Brown. All of the men who were standing nearby left in Harris’ truck, with Avery driving.

The decision to admit prior similar transaction evidence is within the discretion of the trial court and will not be disturbed absent an abuse of discretion. Brooks v. State, 230 Ga. App. 846 (1) (498 SE2d 139) (1998). In both the present case and the similar transaction, both incidents occurred in Bowen Homes; both incidents involved an assault and robbery; both victims were acquaintances of Avery; both victims were shot in the left leg and robbed; and in both cases the person who shot the victim worked with an accomplice. Under these circumstances, we find the evidence of similarity sufficient. Accordingly, as there was compliance with Williams v. State, supra at 642, and Stephens v. State, 261 Ga. 467, 468-469 (405 SE2d 483) (1991), the trial court did not abuse its discretion in admitting the similar transaction evidence.

2. Avery asserts that his trial counsel was ineffective because during jury selection he mistakenly struck the wrong juror. At trial, Avery’s counsel made an objection to the jury as selected and requested a mistrial, both of which were denied by the court.

On September 13, 1996, Avery’s trial counsel filed a motion for new trial which did not assert ineffective assistance of counsel as a ground. Subsequently, Avery’s trial counsel made a motion to withdraw, stating that there were issues of ineffective assistance of counsel which needed to be raised. On January 5, 1998, trial counsel was allowed to withdraw, and, on January 16, 1998, Avery was appointed new counsel. While an amended motion for new trial was not filed prior to the court’s May 13, 1999 order denying the motion for new trial, the order stated that the trial court considered Avery’s ineffective assistance of counsel claim. However, the specific grounds which Avery had contended were the basis for his ineffective assistance of counsel claim were not included in that order. Further, the record does not include a transcript of the motion for new trial hearing, and this Court’s inquiry with the clerk of the trial court revealed that a transcript of the hearing on Avery’s motion for new trial was not a part of the trial court’s record.

Our Supreme Court has stated that an ineffective assistance of trial counsel claim must be raised at the first practicable moment. Bailey v. State, 264 Ga. 300 (443 SE2d 836) (1991). The Court has further held that a claim of ineffective counsel must be raised before appeal if an opportunity to do so is available. Glover v. State, 266 Ga. 183, 184 (2) (465 SE2d 659) (1996). If the opportunity to present such a claim was available, “the failure to seize that opportunity is a procedural bar to raising that issue at a later time.” Id.

Wilcox v. State, 236 Ga. App. 235, 239 (511 SE2d 597) (1999).

Here, Avery had an opportunity to raise any ineffective assistance of counsel claims at the trial level and did so. However, his failure to amend his motion for new trial or provide this Court with a transcript precludes this Court from making a determination of whether the ground now asserted by Avery was raised at the first opportunity to present such issue, i.e., the trial level. Hence, Avery’s claim is waived.

3. Avery alleges that the trial court erred in denying his motion for mistrial. Avery filed a motion in limine requesting that the trial court prohibit any reference to Avery’s legal name of Quinton Wallace or any other aliases and to require that Avery be referred to exclusively by the name under which defendant was indicted, which was Quinton Avery. Prior to trial, the State agreed to refer to the defendant only as Quinton Avery.

During the direct testimony of State’s witness Investigator C. L. White, the following colloquy took place:

Q: Were you able to locate Fat and Spencer?
A: Not Fat and Spencer. I located Mr. Quinton Wallace at the time.
Ms. Hall: Objection, your honor, at this time.
The Court: Objection sustained.
Ms. Hall: And we do have a motion.
Ms. Miller-Terry: Well, the person you located, what was his name?
The defendant [sic]: The name given to me was Quinton Wallace.

At this point, counsel for Avery made a motion for mistrial on the grounds that the testimony of the witness referring to Avery’s name placed his character in evidence.

“Testimony as to the use of an alias does not place the character of an accused in issue. McClendon v. State, [170 Ga. App. 790, 791 (2) (318 SE2d 145) (1984)].” McCord v. State, 268 Ga. 842, 843 (2) (493 SE2d 129) (1997). Hence, there was no abuse of discretion in the trial court’s denial of Avery’s request for a mistrial and curative instruction.

4. Avery’s co-conspirator Compton testified at trial for the State. Compton testified that he had not been offered any “deal” by the State in exchange for his testimony. Originally, the trial court appointed counsel to represent Compton. However, at the time of Avery’s trial, Compton had obtained private counsel. Avery sought to call Compton’s first attorney to rebut Compton’s testimony that he had not been offered a “deal” by the State. Avery’s counsel contended that he had been informed by Compton’s first attorney that the State had offered Compton a reduced sentence in exchange for his testimony at trial.

The State objected to the calling of such witness on two grounds. First, the State asserted that all negotiations made with Compton’s first attorney were withdrawn. The prosecutor stated that because Compton’s first attorney never indicated his client would accept the offered “deal” and would not allow the State to interview his client, she withdrew the offer and decided to call Compton as a witness without making any favorable offer. The State further asserted that, after Compton’s testimony which alerted Avery to the possibility he would need to call Compton’s first counsel, the State was not given timely notice of Avery’s intentions to call such witness. Compton’s first counsel’s name had not been provided to the State prior to trial as a possible defense witness. After Compton’s testimony, the State put two additional witnesses on the stand, and the defense put up its first witness. It was only after the defense’s first witness that Avery’s counsel mentioned the possibility she might want to call Compton’s first attorney to rebut Compton’s testimony. At such time, counsel for Avery asked for a recess until the next morning to locate a rebuttal witness but did not state the name of the witness. The name of the witness was not given until the trial court made inquiry.

The trial court denied Avery’s request to call Compton’s first counsel to testify and found that Avery, after learning of the need to call the witness during Compton’s testimony, had not given the State timely notice of his intent to call such witness. Avery was allowed to put Compton’s first attorney on the stand and make a proffer of the excluded evidence. Compton’s first counsel testified that, in exchange for Compton’s testimony at trial, the prosecutor offered to recommend that the charges against Compton be reduced to robbery and that Compton be sentenced to five years, to serve three, the balance to be served on probation; that he communicated such offer to Compton; that Compton refused the offer; and that no “deal” was ever made.

Decided May 24, 2000.

Patrick G. Longhi, for appellant.

Without deciding whether Avery gave timely notice of his intent to call Compton’s first counsel, we find that the testimony that Avery sought to elicit is barred because it comes within the attorney-client privilege. “Under the common law of Georgia, as codified in OCGA §§ 24-9-21 (2), 24-9-24, and 24-9-25, the attorney-client privilege bars revelation, discovery, and testimony of a lawyer except when waived by the client or in very limited circumstances.” (Citation and punctuation omitted; emphasis supplied.) NationsBank, N.A. v. SouthTrust Bank &c., 226 Ga. App. 888, 896 (487 SE2d 701) (1997). Here, the testimony that Avery seeks to put into evidence, i.e., that Compton’s first lawyer communicated the State’s offer to Compton and that Compton refused such offer, clearly falls within the attorney-client privilege. “It is axiomatic that the attorney-client privilege belongs to the client, not the attorney.” (Citations and punctuation omitted.) Osborn v. State, 233 Ga. App. 257, 260 (504 SE2d 74) (1998). “Therefore, the attorney-client privilege can be waived [only] by the client. [Cit.]” Id. There is no evidence that Compton waived this privilege. Further, while the attorney-client privilege can be waived when communications are made to an attorney with the intention of having this communication imparted to the opposite party, there is no evidence that Compton intended for his attorney to communicate to the State his refusal of the State’s offer. Moclaire v. State, 215 Ga. App. 360, 363 (451 SE2d 68) (1994). “The mere fact that the attorney discussed the communications with others, without evidence that [Compton] authorized those discussions, does not prove that [Compton] waived the attorney-client privilege.” Id.

Moreover, even if the trial court erred in excluding the testimony of the witness, such error would be harmless beyond a reasonable doubt because there was overwhelming evidence of Avery’s guilt. The victim and an eyewitness positively identified Avery as the individual who shot and robbed the victim. See Byrd v. State, 262 Ga. 426, 428 (420 SE2d 748) (1992); Massaline v. State, 234 Ga. App. 35 (506 SE2d 181) (1998).

Judgment affirmed.

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

Paul L. Howard, Jr., District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.

       Allegations of ineffective assistance of counsel which are raised on appeal that differ from those raised before the trial court are waived. Hayes v. State, 262 Ga. 881, 882 (2) (426 SE2d 886) (1993); Beecher v. State, 240 Ga. App. 457 (523 SE2d 54) (1999).

       Avery signed his name on the indictment pleading not guilty as Quinton Wallace, not Quinton Avery, the name under which he was indicted.


author: Ellington, Judge.

text:
    A00A0353.
    GRIFFIN et al. v. ASSOCIATED PAYPHONE.
    (534 SE2d 540)
   Ellington, Judge.

Associated Payphone, a general partnership, sued Ray’s All American Food Store, Inc. and its president, Marvin R. Griffin, for breach of contract and Ultra Telecom, Inc. and its president, Nick Damani, for tortious interference with contractual relations. The trial court entered judgment on the jury verdict against Griffin, for contract damages and attorney fees, and against Damani and Ultra, for tort damages, attorney fees and punitive damages. Following the denial of their motions for new trial, all four defendants appeal, assigning error to the trial court’s denial of their motions for directed verdict, the form of the verdict, the charge on the law, and the admission of certain evidence. For the following reasons, we affirm.

1. The appellants contend the trial court erred in denying the motions for directed verdict of the two individual defendants, Griffin and Damani.

A directed verdict is proper only if there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict. OCGA § 9-11-50 (a). In determining whether any conflict in the evidence exists, the court must construe the evidence most favorably to the party opposing the motion for directed verdict. The standard used to review the grant or denial of a directed verdict is the any evidence test.

(Citation and punctuation omitted.) Evans Timber Co. v. Central of Ga. R. Co., 239 Ga. App. 262 (1) (519 SE2d 706) (1999).

Viewed in this light, the evidence at trial showed that Ray’s operated an Amoco station and convenience store at 3819 Jonesboro Road in Atlanta. On December 17, 1992, Associated obtained a contract giving it the exclusive right to install and maintain coin-operated telephones at Ray’s store for a ten-year term. Associated agreed to pay Ray’s the greater of $300 per month or half of the net receipts from the telephones. Griffin signed the contract following the designation “Proprietor” and directly above Ray’s corporate name. There is no indication near his signature of Griffin’s office or position in the corporation. Less than three years later, Associated removed its telephones because Griffin was in the process of demolishing the building and grading the property to build a larger convenience and package store on the site.

More than two years passed before the new store was ready. In early October 1997, Associated’s principal, Don Malcolm, and Griffin discussed installing payphones in the new store. Griffin told Malcolm he wanted to increase the monthly minimum. A few days later, Malcolm learned that Ultra was competing for the payphone contract at Ray’s. Griffin asked Malcolm if Associated would match the $3,000 signing bonus Ultra offered. At first, Malcolm agreed, but when the Ultra representative raised the bid, Malcolm contacted Damani at Ultra and told him that he had the payphone contract at Ray’s. Damani asked for a copy of the contract and indicated that Ultra would not interfere with a valid contract. Malcolm called Griffin again and offered $6,000, but the Ultra representative immediately increased the bid to $6,500. Malcolm refused to match Ultra’s offer. Malcolm testified that at that point he insisted that Ray’s abide by the 1992 contract, but Griffin did not recall that. Griffin sent Malcolm a letter stating that the contract was terminated when Associated removed its payphones in 1995 and instructing Malcolm not to install payphones at the 3819 Jonesboro Road store. Ray’s entered a contract with Ultra dated the day after Griffin’s letter to Malcolm.

(a) The appellants contend Griffin’s motion for directed verdict should have been granted because he was not a party to the contract allegedly breached. As the trial court correctly determined, the contract itself was ambiguous as to the capacity in which Griffin signed the 1992 contract with Associated: his signature appeared above the name of the allegedly represented party (Ray’s) but failed to reflect his office in that entity (president) or otherwise show that he was signing in a representative capacity. See Hartkopf v. Heinrich Ad. Berkemann, 200 Ga. App. 355, 356 (1) (408 SE2d 450) (1991) (discussing former OCGA § 11-3-403). Although Griffin might have intended to sign the contract in his representative capacity only, he failed to limit his personal liability under the contract by showing his corporate office when he signed. Talmadge v. Respess, 224 Ga. App. 768, 770 (2) (482 SE2d 709) (1997). Evidence supporting the jury’s finding that Griffin was a party included: the contract term designating Griffin “doing business as Ray’s All American Food Store” as “proprietor”; the contract term certifying that Griffin owned the business; and Malcolm’s testimony that he understood the contract was with Griffin personally. Because there was some evidence from which the jury could conclude that Griffin signed the contract in his individual capacity, and not as an agent for Ray’s, the trial court did not err in denying Griffin’s motion for directed verdict. Schroeder v. Hunter Douglas, Inc., 172 Ga. App. 897, 901 (9) (324 SE2d 746) (1984).

(b) The appellants contend Associated failed to make out a prima facie case for tortious interference against Damani. To establish liability for this tort, the plaintiff must prove that the defendant (i) acted improperly and without privilege; (ii) acted purposefully and maliciously with the intent to injure; (iii) induced a third party to breach a contract with the plaintiff; and (iv) caused the plaintiff some financial injury. NationsBank, N.A. v. SouthTrust Bank &c., 226 Ga. App. 888, 892 (1) (487 SE2d 701) (1997). There was evidence before the jury that Damani knew Associated had an exclusive payphone operator contract with Ray’s and directed Ultra’s representative to offer Griffin whatever signing bonus was required to induce Griffin to give Ray’s business to Ultra. The any evidence standard of review for the denial of the motion for directed verdict requires the affirmance of the trial court. Witty v. McNeal Agency, 239 Ga. App. 554, 561-562 (4) (521 SE2d 619) (1999).

2. Three of the appellants’ enumerations relate to certain procedural irregularities at trial with regard to the form of the verdict. At the trial on Associated’s claims, the trial court sent the jury to deliberate with a verdict form which had twelve separate parts: a finding for or against each of the four defendants as to three elements of recovery (compensatory damages, attorney fees, and punitive damages). The defendants objected to the verdict form and stated as follows: “after all these subparts, the defense submits there ought to be a clause . . . that simply says, we, the jury, find for defendants. . . . This is heavy loaded plaintiff’s damages.” The jury initially returned a verdict for Associated and against the two individuals for compensatory damages (breach of contract against Griffin; tortious interference against Damani) and attorney fees. The jury did not award punitive damages against the individuals. As to the two corporations, the jury found “for the plaintiff” on compensatory damages and attorney fees, but in the amount of $0. The jury awarded punitive damages against the corporations, leaving the amount to be determined after the second phase of the trial. The trial court rejected the verdict and instructed the jury that it could not award punitive damages unless it first awarded breach of contract damages, then amended that to be compensatory damages, either breach of contract or tortious interference, depending on the claim asserted against that party.

The jury returned a second verdict substantially similar to the first but which apportioned the original breach of contract damages between Griffin and Ray’s and apportioned the original tortious interference damages between Damani and Ultra. While the jury deliberated on the amount of punitive damages, Associated’s lawyer pointed out that punitive damages are not available on breach of contract claims. See OCGA § 51-12-5.1 (b). The trial court admitted the error and instructed the jury that it would be calculating punitive damages against Ultra only. The trial court later realized that its error in charging the jury that punitive damages could be awarded only if they first awarded breach of contract damages had apparently induced the jury to award the plaintiff breach of contract damages against Ray’s where it had originally decided not to award compensatory damages against Ray’s. The trial court suggested that if Associated would give up its claim against Ray’s, the verdict could be allowed to stand. Associated agreed, and the trial court entered judgment on the jury’s verdict as to Griffin, Damani and Ultra, noting Associated had “waived and relinquished” its claim against Ray’s.

(a) The appellants contend the verdict form misled and confused the jury by allowing the jury to find a breach of contract separately against Griffin and Ray’s when only one of them could have been a party to the agreement. By failing to object on this basis, the appellants failed to preserve this alleged error for our review. Brannan Auto Parts v. Raymark Indus., 183 Ga. App. 82, 83 (1) (357 SE2d 807) (1987) (comment that proposed verdict form was “loaded up against the defendants” was not sufficiently specific and therefore waived objection that form allowed for inconsistent verdict). Furthermore, as discussed in Division 1 (a), the evidence supported the jury’s finding that Associated had a contractual relationship with Griffin. As to Ray’s, the prejudicial effect of any error was cured by Associated’s agreement to relinquish all claims against Ray’s. We will not reverse on the basis of an error which caused no harm. Thompson v. Crouch Contracting Co., 164 Ga. App. 532, 533 (2) (297 SE2d 524) (1982).

(b) The appellants contend the verdict form misled and confused the jury by allowing it to award damages separately against Damani and Ultra when they could be held liable only for tortious interference jointly and severally. Again, by failing to object on this basis, the appellants failed to preserve this alleged error for our review. Brannan Auto Parts, 183 Ga. App. at 83 (1).

(c) The appellants contend the trial court erred in recharging the jury after the jury returned an improper verdict. But where the jury returns an inconsistent and void verdict, it is proper for the trial judge to refuse to receive the verdict and to require the jury to return for further deliberations under proper instructions. Zurich American Ins. Co. v. Bruce, 193 Ga. App. 804, 805 (1) (388 SE2d 923) (1989). This enumeration is without merit.

3. The appellants contend the trial court erred in admitting plaintiff’s Exhibit 26, a chart showing Associated’s calculations of the profit it would have made at the Ray’s location for the 60 months remaining on the contract after Ray’s breached the agreement. The defendants objected on the basis that the document had not been produced in response to their discovery requests and was provided to them only on the morning of the trial. The defendants did not request a continuance to investigate the contents of the document or to prepare a cross-examination, and the trial court gave the defendants an opportunity to review the document. The record is undisputed that the document was created shortly before it was tendered; therefore, Associated did not deliberately withhold the document during discovery but rather produced it at the earliest opportunity. The trial court did not abuse its discretion in admitting the document. Wilson v. Southern R. Co., 208 Ga. App. 598, 603 (3) (431 SE2d 383) (1993).

Decided May 10, 2000

Reconsideration denied May 25, 2000

Greene, Buckley, Jones & McQueen, Francis C. Schenck, Daniel A. Angelo, William D. Matthews, Louis T. Cain, Jr., for appellants.

Evans & Bell, Mark G. Evans, S. Bradley Shipe, for appellee.

4. The appellants contend the trial court erred in charging the jury on novation. Associated requested the charge to dispel the suggestion that Malcolm’s conversation with Griffin about changing the terms of their agreement supported the defendants’ position that there had been a mutual departure from the 1992 contract. We find no basis for concluding that the superfluous charge on novation contributed, either positively or negatively, to the jury’s deliberations. Therefore, reversible error has not been shown. Bynum v. Standard (Chevron) Oil Co., 157 Ga. App. 819, 821-822 (4) (278 SE2d 669) (1981).

Judgment affirmed. Ruffin, J., concurs.

Andrews, P. J., concurs in the judgment only.

       The contract also included a certification by “the proprietor” that he owned the business at 3819 Jonesboro Road.


author: McMurray, Senior Appellate Judge.

text:
    A00A1171.
    WOOD v. WINN-DIXIE STORES, INC. et al.
    (534 SE2d 556)
   McMurray, Senior Appellate Judge.

Early one chilly, drizzly morning, Lois Wood stepped onto the painted concrete entrance ramp fronting a Winn-Dixie store, slipped and fell, injuring her right hand. Wood sued Winn-Dixie as well as NationsBank Corporation, which owns and maintains the property upon which the store is situated. The defendants moved for summary judgment. After conducting oral argument, the trial court issued a one-sentence order granting the motion. Wood appeals. Held:

Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403), sets forth a two-part test for determining whether an invitee can recover damages in a slip and fall claim. First, an invitee must prove that the defendant had actual or constructive knowledge of the hazard. Second, a plaintiff must prove that, despite the exercise of ordinary care, .plaintiff lacked knowledge of the hazard due to actions or conditions within the owner/occupier’s control. Id. at 748-749 (2) (b).

Viewed in the light most favorable to the nonmovant, as we are required to do on appeal from a grant of summary judgment, Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684), the evidence shows that whether the ramp presented a hazardous condition and whether the defendants had constructive knowledge of the alleged hazard are issues for a jury to decide. However, Wood has failed to demonstrate that she lacked knowledge of the alleged hazard. Accordingly, her claim fails under the second prong of Robinson.

Wood’s expert witness, Deborah Hayes Hyde, a building safety expert whose credentials include a Ph.D. in architecture, deposed that the ramp was defective for two reasons: it did not have a slip-resistant surface, and customers had to pivot on the sloped surface before entering the store. Dr. Hyde testified that the ramp was comprised of “brushed concrete with a fairly smooth surface that had been painted over multiple times . . that the paint lacked abrasive material that would increase its coefficient of friction; and that vendors loaded and unloaded their wares and entered the store using the same ramp, depositing grime and debris. Finally, Dr. Hyde testified that the ramp violated American National Standards Institute (“ANSI”) standards as well as Gwinnett County Life Safety Code 5-2.5.4.3, which states that “[a] ramp shall have a slip-resistant surface.”

Next, whether the defendants had constructive knowledge of the alleged hazard is an issue for jury determination. Defendants argue that the fact that no other slip and fall incidents have been reported to occur upon the entrance ramp establishes its lack of constructive knowledge as a matter of law. However, constructive knowledge can be demonstrated by failure to institute a reasonable inspection process to discover defects.

[The duty] to exercise diligence in making the premises safe[ ] includfes] a duty to inspect the premises to discover possibly dangerous conditions. Robinson at 740. The record contains no evidence as to any exercise of diligence on the part of defendant or explanation as to why the defective [paint] could not have been discovered and remedied. . . . Consequently, whether defendant had constructive knowledge of this hazard is an issue for determination by a jury.

Yeh v. Arnold, 232 Ga. App. 725, 726 (503 SE2d 645). See also Burnett v. Ingles Markets, 236 Ga. App. 865, 867 (514 SE2d 65); Avery v. Cleveland Ave. Motel, 239 Ga. App. 644, 645-646 (2) (521 SE2d 668).

As in Yeh, defendants in the case sub judice put forth no evidence to show the ramp was inspected, nor any reason slip-resistant paint was not utilized. Therefore, summary adjudication of this issue was erroneous.

However, Wood’s claim fails under the second prong of the Robinson test, which requires proof that a plaintiff “lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier.” Robinson, supra at 749.

It is true that the plaintiff does not bear the burden of proof on this issue until the defendant first shows that the plaintiff intentionally and unreasonably exposed herself to a hazard which she knew or, in the exercise of ordinary care, should have discerned. Robinson, supra at 749.

However, it is equally well established that:

[a] claim involving a static defect differs from other slip and fall cases. . . . [W]hen a person has successfully negotiated an alleged dangerous condition on a previous occasion, that person is presumed to have knowledge of it and cannot recover for a subsequent injury resulting therefrom.

(Citations and punctuation omitted.) Hannah v. Hampton Auto Parts, 234 Ga. App. 392, 394 (506 SE2d 910).

Wood testified that prior to this incident, she had traversed the ramp three times each week for thirty years, in rainy weather as well as dry. Never before had she slipped or fallen. She also testified that the ramp had not changed in those 30 years. In addition, the store manager attested that his inspection of the store’s records revealed no slip and fall claims involving the ramp. This fact establishes defendants’ lack of superior knowledge of the alleged hazard as a matter of law. See Mechanical Equip. Co. v. Hoose, 241 Ga. App. 412 (523 SE2d 575) (evidence that plaintiff traversed steps without injury numerous times over an eight-year period precluded recovery); Johnson v. J. H. Harvey Co., 240 Ga. App. 265, 266-267 (523 SE2d 95) (evidence that plaintiff traversed grocery store’s concrete ramp without incident “for years” barred recovery).

Wood urges this Court to follow our holding in Flournoy v. Hosp. Auth. of Houston County, 232 Ga. App. 791, 792 (504 SE2d 198).

Decided May 11, 2000

Reconsideration denied May 25, 2000

Robert S. Windholz, for appellant.

Drew, Eckl & Farnham, Peter H. Schmidt II, for appellees.

In Flournoy the plaintiff slipped while going down a ramp. . . . [W]e held that the rule barring recovery based on an individual’s previous use of the alleged dangerous condition was inapplicable because the dangerous condition in Flournoy resulted from a combination of factors (the slope of the ramp, the fact that the non-skid paint had worn off and that the ramp was wet) that could not be appreciated by someone who had previously gone only up the ramp.

Mechanical Equip. Co., supra at 413.

Flournoy is distinguishable from the case sub judice. Unlike the plaintiff in Flournoy, Wood had traversed the ramp numerous times in rainy weather. No evidence was offered to show that the type of paint had changed. Also, yellow stripes had been painted on the ramp, and Wood testified that she believed the stripes signified “danger.” Thus, Wood’s prior successful negotiation of the ramp bars her recovery.

Finally, Wood claims the absence of slip-resistant paint on the ramp constituted a violation of ANSI standards and local ordinances. Even if such violations were proved and the defendants knew they existed, Wood cannot recover because she had equal knowledge of the alleged hazard. Febuary v. Averitt Properties, 242 Ga. App. 137, 140 (1) (528 SE2d 880); Hannah, supra at 395; Parks-Nietzold v. J. C. Penney, Inc., 227 Ga. App. 724, 726 (490 SE2d 133) (equal knowledge rule precluded recovery even if broken door latch in public restroom violated building code).

While this Court is to remain mindful “that the ‘routine’ issues of premises liability, i.e., the negligence of the defendant and the plaintiff, and the plaintiff’s lack of ordinary care for personal safety are generally not susceptible of summary adjudication,” this is one of those cases in which the evidence is plain and palpable that the defendants are not liable. Robinson v. Kroger Co., [supra at] 748.

Hannah, supra at 395.

Judgment affirmed.

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


text:
    A00A1222.
    BANKS v. THE STATE.
    (535 SE2d 22)
   Eldridge, Judge.

A Butts County jury convicted Michael Banks of two counts of armed robbery, aggravated assault, and possession of a firearm during the commission of a crime. The charges arose from Banks’ participation in the carjacking of a 1992 Ford Mustang, during which Banks and co-defendant Derrez White followed the Mustang in their car; each fired several rounds from his automatic weapon into the driver’s window of the Mustang, hitting both the driver and the passenger; and, when the car stopped and the occupants fled into some nearby woods, Banks and White took the Mustang in order to sell the rims. Banks appeals. We affirm.

1. Banks first raises a claim of ineffective assistance of counsel.

In order to prevail on a claim of ineffective assistance of counsel, [Banks] must show both deficient performance and actual prejudice. To show deficient performance, he must demonstrate that his counsel’s performance was not reasonable under the circumstances confronting his counsel at the time, without resorting to hindsight. [Banks’] burden is high because his counsel is presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. To show actual prejudice, he must demonstrate a reasonable probability that he would have been acquitted but for counsel’s unprofessional errors.

(Citations and punctuation omitted.) Millwood v. State, 237 Ga. App. 748, 749 (2) (a) (516 SE2d 799) (1999).

(a) Banks contends that the State failed to lay a foundation for admission of his audiotaped statement to the police and, thus, his attorney was ineffective for failing to object to the tape’s admission on that basis. However, Banks’ statement to the police corroborated in all respects his trial defense that he was an innocent bystander to co-defendant White’s carjacking scheme. At the motion for new trial, defense counsel testified that “[therefore I thought it would be helpful to have his statement to Major Overbey come in as corroborating and consistent with his statements during the course of the trial.” Such strategic decision with regard to the admission of evidence does not constitute ineffective assistance of counsel. Hamilton v. State, 238 Ga. App. 320, 322 (3) (517 SE2d 118) (1999).

(b) Banks’ statement to the police contained three references to his prior criminal conviction. He contends that his attorney was ineffective for failing to move in limine with regard to such improper character evidence. However, a review of the references about which Banks now complains shows that each was made as an explanation for why Banks would not consider engaging in the indicted acts: ‘You know, I don’t fool around with them [guns], you know, as far as pointing at people. I’m a convicted felon, I don’t need it”; “I wouldn’t put no gun on nobody and try to make nobody do nothing. I’m not that type of person. Like I say, I already got a case coming up Monday, and, you know, I ain’t in no predicament to do that”; and “When I leave the house I don’t, my intention don’t be to get in no trouble. Like I say, I’m on a five-year probation.” At the motion for new trial, defense counsel testified such statements were “brought up by Mr. Banks to explain his actions to Major Overbey, and then by extension of that it was brought up to explain his action to the jury and they were consistent.” The attorney’s decision not to object was part of a legitimate trial strategy and, thus, falls within the range of reasonable professional assistance. Fargason v. State, 266 Ga. 463, 465 (467 SE2d 551) (1996).

(c) Banks contends that his trial attorney was ineffective for failing to move for a directed verdict. At the motion for new trial hearing, defense counsel testified that “I had no good faith basis to make such a motion, that in fact the State had met the burden of proof in the case and it was a question for the trier of fact and not susceptible to a directed verdict.” In that regard, co-defendant White testified at trial on behalf of the State and established Banks’ participation in each of the offenses for which he was convicted. White’s statement was corroborated in many respects by the testimony of the victims of the carjacking. Also, Banks’ own statement to the police corroborated White’s testimony, except for the assignment of blame, and included an admission that he was present at the carjacking. Thus, the evidence was sufficient to support the jury’s verdict under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), and a motion for directed verdict would have been futile. Failure to pursue a meritless motion cannot be evidence of ineffective assistance. See Hayes v. State, 262 Ga. 881, 884-885 (426 SE2d 886) (1993).

(d) Banks contends that his trial attorney was ineffective for failing to object to the trial court’s charge to the jury on the concept of double jeopardy in response to a jury question with regard thereto.

In his motion for new trial, Banks raised the issue of the jury charge on double jeopardy as an independent claim of error on the part of the trial court. However, Banks’ trial attorney did not object or reserve objection to such charge, and thus, the issue was waived. On motion for new trial, the trial court was not required to rule on the merits. See, e.g., Smith v. State, 268 Ga. 42 (2) (485 SE2d 189) (1997).

Decided May 17, 2000

Reconsideration denied May 25, 2000

Bruce S. Harvey, David S. West, for appellant.

Richard G. Milam, District Attorney, James L. Moss, Jr., Assistant District Attorney, for appellee.

Now, on appeal, Banks raises this issue in the context of his ineffective assistance of counsel claim; however, Banks’ trial attorney was not questioned at all with regard to the court’s charge on double jeopardy or whether his failure to object thereto was based on strategic grounds. “In the absence of testimony to the contrary, counsel’s actions are presumed strategic.” (Citations and punctuation omitted.) Clark v. State, 239 Ga. App. 245, 248 (520 SE2d 245) (1999). Further, the trial court did not rule on this issue in the context of the ineffective assistance of counsel claim. Absent a ruling by the trial court on this issue, there is nothing for this Court to review. Darby v. State, 230 Ga. App. 32, 33 (3) (495 SE2d 146) (1997). “Because this allegation of ineffectiveness raised by [Banks] on appeal differs from those raised before the trial court, this ground is deemed waived. [Cits.]” Beecher v. State, 240 Ga. App. 457, 459 (3) (523 SE2d 54) (1999); Holland v. State, 232 Ga. App. 284, 285 (2) (501 SE2d 829) (1998).

2. The trial court did not err in sentencing Banks for armed robbery and possession of a firearm during the commission of the armed robbery. It is the express intention of the legislature that these offenses should not merge for sentencing purposes. OCGA § 16-11-106 (e); Golden v. State, 233 Ga. App. 703, 705 (505 SE2d 242) (1998).

Judgment affirmed.

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

       White pled guilty to the charges and is not before this Court on appeal.


author: Andrews, Presiding Judge.

text:
    A00A0062.
    LAMB v. SALVAGE DISPOSAL COMPANY OF GEORGIA et al.
    (535 SE2d 258)
   Andrews, Presiding Judge.

Matthew K. Lamb appeals from the trial court’s order granting the motions to dismiss or for summary judgment of Salvage Disposal Company of Georgia (Sadisco) and State Farm Mutual Auto Insurance Companies (State Farm). Because the trial court reached the proper decision, we affirm.

In reviewing the grant or denial of summary judgment, we apply a de novo standard of review and view the evidence with all reasonable inferences and conclusions in favor of the party opposing summary judgment. Goring v. Martinez, 224 Ga. App. 137, 138 (2) (479 SE2d 432) (1996). When so viewed, the evidence presented showed that on March 9, 1996, Sally A. Soggs’ vehicle, insured by State Farm, collided with a car Lamb was driving. Lamb’s 1987 Honda CRX sustained severe front end damage, including a bent steering wheel, broken windshield, and dashboard damage. Chadwick’s Wrecker Service towed the damaged vehicle to Chadwick’s lot in Columbus. State Farm determined that this 1987 Honda CRX which had more than 177,000 miles was a total loss. While settlement negotiations were pending, State Farm arranged for Sadisco to tow the vehicle from Chadwick’s to a salvage yard in Atlanta belonging to Sadisco.

Lamb sued Soggs for the property damage to his vehicle and for damages for personal injuries. A jury awarded $26,461.39 in damages to Lamb in that litigation. Lamb brought a separate suit for conversion against State Farm in the Superior Court of Muscogee County. Lamb alleged that State Farm had arranged for his vehicle to be moved from Columbus to Atlanta without his permission, a claim vigorously repudiated by State Farm. In suing State Farm for conversion, Lamb sought general damages, punitive damages, costs, interest, and attorney fees. After State Farm won a directed verdict on all issues except the purported conversion of the vehicle, Lamb voluntarily dismissed the action. Lamb, however, appealed the directed verdict. In Lamb v. State Farm &c. Ins. Co., 240 Ga. App. 363 (522 SE2d 573) (1999), we affirmed the trial court’s ruling.

While Lamb’s appeal was pending, Lamb instituted litigation in the Superior Court of Fulton County on March 16, 1998. In this suit, Lamb again sued State Farm for conversion but added Sadisco as a defendant. Lamb alleged that the defendants “unlawfully seized, detained and converted to their own use” his 1987 Honda CRX. Lamb sought $4,500 in general damages for the value of the Honda, punitive damages, interest, costs, and attorney fees. In responding to Sadisco’s interrogatories, Lamb claimed that OCGA § 44-12-150 et seq. applied and that his “damages are based on the value before the conversion and the value after the conversion.”

Sadisco and State Farm filed separate motions to dismiss or in the alternative for summary judgment. In its motion, Sadisco claimed that because a State Farm representative had instructed it to move Lamb’s vehicle and since it acted only as State Farm’s agent, it was in lawful possession of the vehicle. Sadisco further contended that no genuine issue of material fact existed about any intentional breach on its part of any duty to Lamb. The trial court agreed and awarded summary judgment to Sadisco.

Noting that the Superior Court of Muscogee County had directed a verdict in favor of State Farm on Lamb’s claims for punitive damages, attorney fees, and expenses of litigation, the trial court dismissed those claims. The court also decided Lamb’s “prayer for general relief ($4,500.00 for value of the car) must be DISMISSED as the Plaintiff has already received compensation for the value of the vehicle in the January 7, 1998, jury verdict (in his Muscogee County personal injury case).” The court noted, “[Lamb] is not allowed a double recovery.”

In his sole enumeration of error, Lamb contends the trial court erred in granting Sadisco’s and State Farm’s motions to dismiss or for summary judgment. While we arrive at the same decision as the trial court, we utilize a different route. See Precise v. City of Rossville, 261 Ga. 210, 211 (3) (403 SE2d 47) (1991) (judgment right for any reason will be affirmed).

In a suit to recover personal property, a plaintiff may elect to recover, alternatively, the property or its value, damages only, or the property and its hire. Howard v. Parker, 163 Ga. App. 159, 160 (293 SE2d 548) (1982). In this case, notwithstanding the return of his personal property, Lamb sought to recover solely damages. But the statute offering an election of remedies must be construed in conjunction with OCGA § 44-12-153. Trammel v. Mallory Bros. & Co., 115 Ga. 748, 750-751 (42 SE 62) (1902); Walton v. Henderson, 4 Ga. App. 173, 176 (3) (61 SE 28) (1908) (formerly Civil Code 1895, § 3897).

OCGA § 44-12-153 provides:

In actions for the recovery of personal property, if the defendant disclaims all title and tenders the property to the plaintiff when he files his answer, together with reasonable hire for the same since the conversion, the costs of the action shall be paid by the plaintiff unless he proves a previous demand of the defendant and a refusal to deliver.

Here, it is undisputed that State Farm never claimed title to the property and tendered the property back to Lamb by returning the vehicle before it answered Lamb’s complaint. See Connors v. Omni Ins. Co., 195 Ga. App. 607 (1) (394 SE2d 402) (1990) (demand and wrongful refusal are prerequisites to trover action). When a plaintiff does not ask for any reasonable hire, a defendant may comply with this statute without tendering reasonable hire from the date of the conversion. Harris v. Barry Finance Co., 76 Ga. App. 663, 666 (1) (47 SE2d 201) (1948). When Lamb submitted a written demand in September 1996 for the return of his car, he did not make any request for reasonable hire, insisting only that the car be returned to him in Columbus by October 10, 1996. In any event, it would not appear that this totaled vehicle could have any value “for hire” even had Lamb sought an amount. See Trammell, 115 Ga. at 751 (no recovery of damages for hire when property has no such value).

Lamb asserted his entitlement to “damages . . . based on the value before the conversion and the value after the conversion.” Under OCGA § 44-12-152, “the plaintiff may recover a sum in the amount of the highest value which he is able to prove existed between the time of the conversion and the trial.” Nevertheless, in an action for conversion, the measure of damages as set forth in OCGA § 44-12-152 applies only when the property continues to be “unlawfully detained.” Campbell v. Bausch, 195 Ga. App. 791, 792 (1) (395 SE2d 267) (1990). When a party elects to sue for damages for conversion and the property has been returned before trial, as here, the damages are limited to recovery “for the diminution in value of the [property] only for the time period between the alleged conversion and the property’s return.” Id. Compare Stephens v. Southern Discount Co., 105 Ga. App. 667, 670 (1) (125 SE2d 235) (1962) (in action in trover, a plaintiff may elect money damages after defendant refuses to comply with demand to deliver property); see Trammell, 115 Ga. at 751 (when defendant complies with Section 3897 (now OCGA § 44-12-153) plaintiff cannot elect to take a verdict for damages as provided in Section 5335 (now OCGA § 44-12-151)).

Even assuming arguendo that Sadisco and State Farm converted the car in March 1996 as Lamb claims, the evidence indisputably established that the vehicle was returned to Lamb before trial. Even further assuming the measure of damages was the diminution in value of this 1987 Honda CKX between March 1996 and March 1997, the amount in damages is zero. Campbell, 195 Ga. App. at 792 (1). Before the alleged conversion, the car had sustained severe body damage in excess of the vehicle’s fair market value. No evidence suggested otherwise. Thus, in March 1996 at the time of the alleged conversion, the Honda was a total loss, and in March 1997, it was still a total loss. Since the only claim remaining against State Farm is the amount, if any, of damages for the alleged conversion, and those damages are zero, State Farm was entitled to judgment as a matter of law. See id.; see also Bowling v. Gober, 206 Ga. App. 38, 39 (3) (424 SE2d 335) (1992) (when insurer fully satisfies automobile damages claim, law will not allow a double recovery).

Lamb also contends that Sadisco was not entitled to benefit from the directed verdict obtained by State Farm on the issues of punitive damages, costs, and attorney fees. He asserts that a jury must resolve the issue of conversion and the amount of damages he can recover from Sadisco.

Decided May 25, 2000

Peter G. Williams, for appellant.

Smith, Welch & Brittain, Bruce R. Vail, Tisinger, Tisinger, Vance & Greer, Douglas C. Vassy, Joe M. Harris, Jr., for appellees.

Lamb’s argument overlooks the fact that OCGA § 13-6-11 does not create an independent cause of action but merely permits in certain limited circumstances the recovery of the expenses of litigation incurred as an additional element of damages. Brown v. Baker, 197 Ga. App. 466, 467 (2) (398 SE2d 797) (1990). Similarly, punitive damages are not recoverable unless general damages have been awarded. Mayfield v. Ideal Enterprises, 157 Ga. App. 266, 267 (1) (277 SE2d 62) (1981). Since Lamb cannot establish under OCGA § 44-12-150 et seq. any amount of damages for the alleged conversion of his vehicle, he cannot obtain the other relief he seeks. See Connors, 195 Ga. App. at 607 (2) (return of vehicle can disprove essential element of trover action). Accordingly, we find that Sadisco was entitled to judgment as a matter of law. See Rent-A-Tool Co. v. Jackson, 142 Ga. App. 781 (237 SE2d 14) (1977) (no theory of recovery authorizes the return of the object plus its market value as damages).

Judgment affirmed.

Ruffin, J., concurs. Ellington, J., concurs in the judgment only.

       In his suit against Soggs, Lamb sought $4,500 for the property damage to Ms veMcle. In his action against State Farm, Lamb expressed the value of the car as being $4,500 at the time of the alleged conversion.


text:
    A00A0360.
    CHEROKEE WAREHOUSES, INC. et al. v. BABB LUMBER COMPANY, INC.
    (535 SE2d 254)
   Ruffin, Judge.

We granted the application for discretionary appeal filed by Cherokee Warehouses, Inc. d/b/a Cherokee Warehouses Material Handling Division (Cherokee). In five enumerations of error, Cherokee contends that the trial court erred in concluding that it had received valid service of process.

The undisputed facts show that Cherokee was a Tennessee corporation that was registered to do business in Georgia and that it maintained a registered agent in this state for service of process. In 1995, Cherokee sold a forklift to Babb Lumber Company, Inc. Babb Lumber filed suit against Cherokee in Georgia alleging that the forklift was defective. On December 17, 1998, Babb Lumber moved for appointment of a process server, and the trial court appointed Jerry Morris. Rather than serving Cherokee’s registered agent, Morris served the owner of the company at his Tennessee office.

Cherokee did not respond to Babb Lumber’s complaint, and on April 21, 1999, the trial court granted Babb Lumber’s motion for defáult judgment. The trial court entered judgment against Cherokee in the amount of $95,006 plus interest. Cherokee subsequently filed a motion to set aside the default judgment, arguing that the extraterritorial service of process was invalid. The trial court concluded that Babb Lumber was authorized to serve Cherokee by serving an officer of the company and denied Cherokee’s motion.

Under OCGA § 9-11-4 (d) (1), if an action is against a corporation incorporated or domesticated under the laws of this state or a foreign corporation authorized to do business in this state, then service shall be made by delivering a copy of the summons “to the president or other officer of the corporation, secretary, cashier, managing agent, or other agent thereof.” Based upon the language of this Code section, the trial court concluded that extraterritorial service upon an officer of the company was permitted. We disagree.

In construing statutes, a court must “give meaning to and harmonize all parts of the statute to give them sensible and intelligent effect, while avoiding constructions that make any part of the statute mere surplusage.” In construing OCGA § 9-11-4, we must address subsection (f), which provides that “process may be served anywhere within the territorial limits of the state and, when a statute so provides, beyond the territorial limits of the state.” Although the trial court concluded that OCGA § 9-11-4 (d) (1) permits extraterritorial service on an officer of the corporation, nothing in that subsection expressly permits service of process beyond Georgia’s borders.

Moreover, OCGA § 9-11-4 (d) (2) specifically provides that service of process upon a foreign corporation doing business within this state and having an agent within this state shall be made “to such agent, cashier, or secretary or to an agent designated for service of process.” The trial court’s determination that extraterritorial service of process can be made to an officer of the company renders this subsection unnecessary, which runs counter to the rules of statutory construction. Accordingly, to the extent the trial court concluded that extraterritorial service of process was proper under OCGA § 9-11-4 (d) (1), the trial court erred.

Although the reason for the trial court’s ruling may be wrong, we may still affirm that ruling if it is right for any reason. Here, Babb Lumber contends that the trial court’s ruling was right because, even if service was improper under OCGA § 9-11-4, it was proper under Georgia’s Long Arm Statute. Again, we disagree. The Long Arm Statute applies only to nonresidents, which term is defined, in pertinent part, as a corporation that “is not organized or existing under the laws of this state and is not authorized to do or transact business in this state at the time a claim or cause of action . . . arises.” As Cherokee was authorized to do business in Georgia, it is not subject to service of process under the Long Arm Statute.

Decided May 25, 2000

Witt, Gaither & Whitaker, Paul Campbell III, Cynthia D. Hall, for appellants.

John O. Wiggins, for appellee.

Finally, Babb Lumber contends that service was proper because it was made in the manner “most reasonably calculated to give [Cherokee] notice.” In other words, Babb Lumber suggests that, having received actual notice, Cherokee has no grounds for complaint. We find Babb Lumber’s argument flawed.

“A court’s power to render a judgment binding on the parties depends at the outset upon it having jurisdiction.” “In the absence of service in conformity with the statutory rules, or the waiver thereof, no jurisdiction over the defendant is obtained by the court, and any judgment adverse to the defendant is absolutely void.” And actual knowledge of a pending suit does not obviate the need for valid service of process.

In this case, the record does not demonstrate either that Cherokee received service of process in accordance with the law or that Cherokee waived such service. Accordingly, the trial court lacked jurisdiction over Cherokee, and its judgment is void.

Judgment reversed.

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

        Tolbert v. Maner, 271 Ga. 207, 208 (1) (518 SE2d 423) (1999).

       See id.

       See Todd v. Harnischfeger Corp., 177 Ga. App. 356, 357 (340 SE2d 22) (1985) (physical precedent only) (as defendant “did not have an agent, secretary, or cashier within the state, personal service was required to be made on its registered agent”).

        Rozier v. Berto, 230 Ga. App. 427, 430 (496 SE2d 544) (1998).

       See OCGA § 9-10-90 et seq.

        Allstate Ins. Co. v. Klein, 262 Ga. 599, 600 (422 SE2d 863) (1992).

       OCGA § 9-10-90; see Allstate, supra at 601 (“[i]t is apparent from the language of this definition that a corporation which is ‘authorized to do or transact business in this state at the time a claim’ arises is a ‘resident’ ”) (emphasis in original).

        Hoesch America v. Dai Yang Metal Co., Ltd., 217 Ga. App. 845 (1) (459 SE2d 187) (1995).

       (Punctuation omitted.) Stamps v. Bank South, N.A., 221 Ga. App. 406, 408 (1) (471 SE2d 323) (1996).

        In the Interest of D. R. W., 229 Ga. App. 571, 574 (1) (494 SE2d 379) (1997).


text:
    A00A0534.
    SCANDRETT v. THE STATE.
    (534 SE2d 908)
   Ruffin, Judge.

A Clayton County jury found Charlie Horace Scandrett, Jr. guilty of possessing cocaine. On appeal, Scandrett asserts that the trial court erroneously denied his motion to suppress the cocaine. Because we agree with the trial court that Scandrett lacks standing to challenge the search that yielded the cocaine, we affirm.

Two Forest Park police officers, William Donald Raiford and Willie Martin, were patrolling an area of Forest Park known for high drug activity. They saw a car parked in the yard of a residence and a man — later identified as Scandrett — leaning into the driver’s side window with his hands inside the car. Thinking that a drug sale was in progress, the officers stopped to investigate. As Raiford approached the car, Scandrett looked at him, then removed his hands from the car and put them in his jacket pockets. As Scandrett started walking toward the back of the car, Raiford told him to put his hands on the car. Scandrett “made a sudden movement like he was breaking to run,” and Raiford grabbed him. With his right hand, Scandrett threw a bag over the top of the car. Martin retrieved the bag, which contained crack cocaine.

Scandrett moved to suppress the cocaine as the fruit of an illegal detention and search. At a hearing on the motion to suppress, Scandrett testified that the bag was not his and denied throwing it over the car. Scandrett began to give his version of events, but the prosecutor objected that Scandrett lacked standing to contest the search of the bag unless he admitted possession of it. Scandrett’s attorney stated, ‘Your Honor, I would cede [sic] to [the prosecutor’s] objection.” The trial court then denied Scandrett’s motion on the ground that he lacked standing to challenge the search of the bag, and defense counsel stated, “I completely understand, Your Honor.”

On appeal, Scandrett argues that the cocaine should have been suppressed because the police lacked reasonable suspicion to detain him, and the illegal detention coerced him into abandoning the bag. The State contends that the police had sufficient specific and articulable facts to justify a Terry-type stop. Oddly, neither party addresses the basis for the trial court’s ruling — that Scandrett lacked standing to challenge the search of the bag. We, however, agree with the trial court.

It is well established that “[t]he Fourth Amendment right against unreasonable search and seizure is a personal right and may not be asserted vicariously.” Accordingly, “[w]hen . . . the accused disavows ownership of or other legitimate possessory interest in the item searched, he has no legitimate expectation of privacy in that item, and thus a search violates no right.” In Wade v. State, police found a bag that contained drug paraphernalia on the defendant’s person. The defendant insisted that “just prior to his detention, he had seen the bag lying beside the path and had picked it up.” As the defendant disavowed ownership of the bag, we held that the search was lawful. Likewise, in Deych v. State, police found cocaine in a piece of airport luggage for which the defendant had a claim check. Because the defendant insisted that the luggage was not his, we ruled that the trial court properly denied his motion to suppress the cocaine.

Decided May 25, 2000.

Emmett J. Arnold TV, for appellant.

Robert E. Keller, District Attorney, Lalaine A. Briones, Assistant District Attorney, for appellee.

Here, Scandrett testified unequivocally at the hearing on his motion to suppress that the bag containing cocaine was not his. In view of Scandrett’s denial of any possessory interest in the bag, he lacked standing to contest its search. The trial court properly denied the motion to suppress on this basis.

Judgment affirmed.

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

       Arguably, we need not even address the merits of the trial court’s ruling on standing, as defense counsel apparently acquiesced in the trial court’s ruling and does not enumerate it as error on appeal.

       (Punctuation omitted.) Henderson v. State, 211 Ga. App. 102, 103 (2) (438 SE2d 181) (1993).

       (Punctuation omitted.) Id. See also State v. Harris, 236 Ga. App. 525, 529 (3) (513 SE2d 1) (1999).

       184 Ga. App. 97 (360 SE2d 647) (1987).

       Id.

       Id. at 97-98.

       188 Ga. App. 901-902 (2) (374 SE2d 753) (1988).

       Id. See also Young v. State, 187 Ga. App. 161, 164 (369 SE2d 772) (1988); Johnson v. State, 208 Ga. App. 747, 749-750 (3) (431 SE2d 737) (1993) (physical precedent only); Henderson, supra.