text:
    A00A1573.
    ESPY v. THE STATE.
    (539 SE2d 513)
   Ruffin, Judge.

A jury found Kieno Leon Espy guilty of armed robbery and possession of a firearm during the commission of a crime. Espy appeals, asserting that the trial court erred in admitting hearsay testimony, allowing his character to be placed in issue, commenting on his defense, and in instructing the jury. Espy also contends that he received ineffective assistance of counsel. As Espy’s claims of error lack merit, we affirm.

Succinctly stated, the evidence shows that, on January 1, 1998, Bharat Brahmbhatt was working at the front desk of a Ramada Inn. That evening, two men entered the hotel and inquired about room rates. After Brahmbhatt handed the men a registration card, the taller of the two men produced a gun and demanded money. The second man opened the cash drawer and stole between $800 and $1,000.

As the two men entered the hotel, the gunman held a Coke can, which he put down on the counter before reaching for his gun. After the robbery, he left the can on the counter. The police were able to lift a latent fingerprint from the can, which matched Espy’s fingerprint. Brahmbhatt also identified Espy as the gunman during the trial.

1. In his first enumeration of error, Espy contends that the trial court erred in allowing the State to place his character in issue. Detective Harry McCann, who initially attempted to serve Espy with the arrest warrant, testified that he told Espy’s father that the warrant was for a probation violation. Pretermitting whether Detective McCann’s testimony put Espy’s character in issue, Espy waived any error by failing to object to its admission on this basis.

2. Espy also asserts that the trial court erred in admitting hearsay testimony. After the robbery, a husband and wife who were staying at the hotel approached police officer Joseph Blackard, who was investigating the crime. The wife told Officer Blackard that, approximately 15-20 minutes earlier, she had seen two men who loosely matched Brahmbhatt’s description of the perpetrators near the hotel. The husband, who had been parking the car, told the officer that he had seen only one man, but that the man had been wearing a coat the same color as that worn by the gunman. Although the two witnesses were not present at trial, their statements were introduced through Blackard’s testimony. Espy objected to this evidence as hearsay, but the trial court determined that it was admissible as part of the res gestae.

OCGA § 24-3-3 provides that “[declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, shall be admissible in evidence as part of the res gestae.” “The admissibility of declarations as part of the res gestae is left to-the sound discretion of the trial court, considering the time, circumstances, and statements in question.” So long as the statement is relevant and made without premeditation, the trial court may admit the evidence.

Prior to admitting Blackard’s testimony, the trial court established that the two witnesses voluntarily approached the officer after seeing police activity at the hotel. The witnesses provided the information within 15-20 minutes from the time the crime occurred. Under these circumstances, we cannot say that the trial court abused its discretion in admitting the evidence as part of the res gestae.

3. Espy maintains that the trial court improperly commented on his defense. During his case-in-chief, Espy took the stand and testified that, on the night of the robbery, he, his girlfriend, and their baby were driving around looking for a hotel room. According to Espy, a stranger asked him for a quarter to buy a Coke, and Espy handed him the Coke that he had just purchased. Following Espy’s testimony, the trial court asked him “Why didn’t you shop by phone for this [hotel] room instead of carrying your girlfriend and baby around at 6:00 o’clock in the nighttime? Why didn’t you just have her pick up the telephone and call and check on the prices?” Espy contends that, by asking the question “in a prosecutorial tone,” the trial court improperly commented on the credibility of his defense. At trial, however, Espy failed to object to this question and, thus, waived any error on appeal.

4. Espy asserts that the trial court erred in defining armed robbery for the jury. The trial court instructed the jury that

a person commits armed robbery when, with intent to commit theft, that person takes property of another from the person or the immediate presence of another by use of an offensive weapon or by any replica, article or device having the appearance of such a weapon.

Espy argues that, because the indictment specifically alleged armed robbery with an actual firearm, the jury should not have been instructed that the offense could have been committed with a replica, article, or device having the appearance of a handgun. However, by failing to object to the instruction after the trial court asked for objections, Espy waived the alleged error. Even if Espy had objected, Esp/s argument presents no basis for reversal.

5. Espy contends that his trial counsel was ineffective for failing to object to the admission of certain evidence and failing to reserve exceptions to the jury instructions. To establish ineffectiveness, a defendant must show that trial counsel’s performance was deficient and that the deficiency caused sufficient prejudice to deprive him of a fair trial. With respect to the prejudice prong, “[t]he test is whether there is a reasonable probability the jury would have reached a different verdict, absent the error of counsel.”

Here, Espy’s fingerprint was found on a Coke can left by the gunman, and the victim positively identified him as one of the robbers. Espy does not challenge his lawyer’s failure to object to the admissibility of this evidence, which is sufficient to establish Espy’s guilt. Thus, Espy’s inability to show prejudice precludes reversal on this basis.

Decided September 14, 2000.

Chapman & Pope, Daniel C. Chapman III, for appellant.

Richard R. Read, District Attorney, Robert D. James, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

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

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

       (Punctuation and emphasis omitted.) Perkins v. State, 226 Ga. App. 613, 614 (1) (a) (487 SE2d 365) (1997).

       Id.

       See id. (witness’ statement to police made seven to eight minutes after crime was admissible as res gestae); see also Gilbert v. State, 241 Ga. App. 57, 60 (3) (526 SE2d 88) (1999) (witness’ statement to police made 30 minutes after robbery admissible as res gestae).

       See Paul v. State, 240 Ga. App. 699, 701 (2) (524 SE2d 549) (1999).

       See Miller v. State, 240 Ga. App. 18, 20 (3) (522 SE2d 519) (1999) (failure to object after a direct request for objections constitutes waiver unless substantial error results in prejudice).

       See Daniels v. State, 207 Ga. App. 689, 690 (2) (428 SE2d 820) (1993); Hambrick v. State, 204 Ga. App. 668, 671 (4) (420 SE2d 308) (1992); Mattison v. State, 215 Ga. App. 635 (1) (451 SE2d 807) (1994) (physical precedent only).

        Earnest v. State, 262 Ga. 494, 496 (5) (422 SE2d 188) (1992).

       (Punctuation omitted.) McClarity v. State, 234 Ga. App. 348, 350 (3) (506 SE2d 392) (1998).

       See Ortiz v. State, 222 Ga. App. 432, 434 (5) (474 SE2d 300) (1996) (“Absent a showing of prejudice, no inquiry need be made into counsel’s alleged deficiency.”).


source: Caselaw Access Project

author: Johnson, Chief Judge.

license: Public Domain

text:
    A00A1672.
    PATTON v. ST. FRANCIS HOSPITAL et al.
    (539 SE2d 526)
   Johnson, Chief Judge.

This case concerns the applicability of the statutory discovery cloak afforded under the peer review and medical review statutes. Dr. Robert Patton contends the trial court erred in denying his motion to compel discovery directed to St. Francis Hospital because (1) a malice exception applies to the discovery privileges, (2) the medical review and peer review statutes do not apply where the process itself is under attack, and (3) the medical review committee failed to strictly adhere to its bylaws. We find no merit in Patton’s arguments and affirm the trial court’s order denying Patton’s motion to compel discovery.

Patton is a board-certified cardiologist, a sole practitioner, and was a member of the medical staff of St. Francis Hospital from 1975 to 1995. On December 19, 1995, the board of trustees of the hospital formally terminated Patton’s clinical privileges. Termination was made at the recommendation of the Medical Staff Executive Committee (“MSEC”), which is responsible under medical staff bylaws for conducting peer reviews of its staff. The recommendation by the MSEC was preceded by a yearlong peer review process. The review was initially requested, following the death of one of Patton’s patients, by Dr. Fred M. Burdette, who is a board-certified cardiothoracic surgeon and was a member of the MSEC when he made the request. The peer review proceeding represented the fourth time the hospital had disciplined Patton because of patient care concerns.

During the peer review process, several different committees convened, each of which gathered and reviewed information concerning the care and treatment given by Patton to the deceased patient. The stated purpose of this review was to evaluate and improve the quality of health care rendered at the hospital.

Following a hearing during which Patton was represented by counsel and exercised his right to call, examine, and cross-examine witnesses and to present evidence on his own behalf, the MSEC Ad Hoc Committee issued a report recommending that Patton merely be reprimanded for failing to timely order a specific test on the patient who died. The report stated that the care rendered by Patton was not inappropriate, but also stated that Patton “should have considered and ordered a [specific test] early on in her care.” The report questioned whether the test would have changed the outcome. Based on the conflicting language in the committee’s report, the MSEC requested reconsideration of the committee’s recommendation and added another physician to the committee. The committee then changed its recommendation and instead recommended that Patton’s privileges be terminated. Based on the new recommendation, the MSEC voted to recommend termination of Dr. Patton’s privileges. An appellate review committee appointed by the hospital board of trustees affirmed the decision of the MSEC, and the board of trustees made the final determination to terminate Patton’s privileges.

Patton sued the hospital and Burdette for damages. Patton contends there were numerous bylaw violations during the peer review process. Thus, he sought to utilize the discovery process to obtain peer review information surrounding the termination of his privileges and evidence of any hospital bylaw violations. He requested copies of committee meeting minutes, committee reports, and information about who voted during what meetings, who was present at the meetings, and what was discussed during the various peer review meetings. The hospital objected to the discovery requests on the grounds that such information was not discoverable pursuant to the peer review statutes and the medical review statutes, OCGA §§ 31-7-130 et seq. and 31-7-140 et seq. Patton filed a motion to compel discovery, which was denied by the trial court. He then filed a motion for interlocutory review with this Court, which we granted.

1. Patton first contends that the trial court erred in denying his motion to compel discovery because the discovery protections were eviscerated by a showing that the hospital’s proceedings against him were motivated by malice. We agree with the trial court that no malice exception exists to the discovery privilege provided by the peer review and medical review statutes.

The peer review statute provides that: “[e]xcept in proceedings alleging violation of this article, the proceedings and records of a review organization shall be held in confidence and shall not be subject to discovery or introduction into evidence in any civil action. . . ,” Similarly,

proceedings and records of medical review committees shall not be subject to discovery or introduction into evidence in any civil action against a provider of professional health services arising out of the matters which are the subject of evaluation and review by such committee. . . .

These statutes express the legislature’s intent to foster the delivery of quality medical services by protecting the confidentiality of peer review records and preserving the candor necessary for the effective functioning of hospital medical review committees. Further, the Supreme Court has held that both peer review and medical review proceedings are absolutely privileged,

Although there is evidence that Patton may not have been treated fairly and impartially, the case law is clear that the peer review and medical review proceedings are privileged. Patton argues that the Supreme Court created a malice exception when more than a bare allegation of malice is pleaded. However, Patton misconstrues the majority position in Freeman. In Freeman, the Supreme Court stated as follows: “The use of a bare allegation of malice is not sufficient to elevate a plaintiff’s access to evidence over this court’s previously-stated preference for preserving the candor necessary for effective peer review. [Cit.]”

Contrary to Patton’s argument, the majority opinion in Freeman does not support the creation of a malice exception. The majority noted that to allow an allegation of malice to destroy the discovery shield would result in full discovery in virtually all of the peer review cases, thus swallowing the rule. The majority further noted that a malice exception is found only in a neighboring immunity from liability statute. Since neither the peer review nor medical review statutes pertaining to the discovery privilege mention malice, it is doubtful that the legislature intended to expand the malice exception to the Code sections affording a discovery privilege to peer review proceedings. This Court finds no authority to support the creation of a malice exception to the discovery privileges set forth in OCGA §§ 31-7-133 and 31-7-143.

2. Patton next argues that a bylaw exception exists to the absolute discovery cloak. According to Patton, the alleged failure of a medical review committee to strictly adhere to bylaws strips it of the protection of confidentiality otherwise afforded it in OCGA § 31-7-143. He bases this argument on OCGA § 31-7-140, which defines a medical review committee as a committee of a medical staff or peer review committee, “provided the medical staff operates pursuant to written bylaws. . . .” We find Patton’s assertion unpersuasive.

First of all, OCGA § 31-7-140 requires only that the “medical staff” operate pursuant to written bylaws. The statute does not say that the “medical review committee” must operate pursuant to written bylaws or that the review committee must act at all times in perfect compliance with the bylaws in order to be a “medical review committee.”

In addition, even assuming that each of the committees here does statutorily qualify as a medical review committee, the only two recognized exceptions to the discovery cloak are named in the second sentence of OCGA § 31-7-143. These include the “original sources” exception and the “matters within [one’s] knowledge” exception. Allegations of bylaw violations do not fall within the ambit of either noted exception. This Court finds from a fair reading of the medical review statute that there is no legislative intent to create a “bylaw exception.” Likewise, no cases have been cited in support of this position.

From a practical standpoint, to allow a “bylaw exception” would virtually destroy the candor sought in the setting of hospital peer review. Ministerial compliance with bylaws is beyond the control of the vast majority of medical review participants. For instance, witnesses testifying such as nurses and physicians have no control over bylaw compliance. To hold that bylaw infractions committed by hospital attorneys or other administrative staff constitute a sufficient basis for destroying the discovery privilege would have an enormous detrimental impact on physician candor.

Moreover, Patton’s argument fails for a more obvious reason. This Court finds that each of the named committees here qualifies under the broader peer review statute found at OCGA § 31-7-131 (1). Hence, the discovery cloak enjoyed by these groups pursuant to OCGA § 31-7-133 (a) applies equally to the committees in this case as well. And, as such, there is no condition precedent attached requiring them to operate according to written bylaws in order to enjoy equal discovery protections. The trial court did not abuse its discretion by upholding the clearly expressed discovery privilege provided by OCGA § 31-7-133.

3. Patton asserts that neither the medical review nor peer review statutes apply in this case because the peer review process itself is being challenged. He argues that the introductory phrase “[e]xcept in proceedings alleging violation of this article” in OCGA § 31-7-133 (a) governing peer review means that suits challenging the peer review process itself are exempt from the privilege. He also argues that a case challenging the peer review process is not one “arising out of the matters which are the subject of evaluation and review by such committee,” within the meaning of OCGA § 31-7-143 governing medical review committees. We disagree.

The statutes do not create and the appellate courts have not recognized any such exception. The discovery embargo applicable to peer review groups applies in “any civil action.” Similarly, the embargo covering medical review committees applies to “any civil action against a provider of professional health services arising out of the matters which are the subject of evaluation and review by such committee.” This case certainly is a “civil action” and was filed against a physician and a hospital, who certainly qualify as “providers of professional health services.” The subject of the evaluations and reviews was Patton’s treatment of a patient and his disciplinary history.

To allow the exception urged by Patton would undermine the confidentiality afforded medical review committees and would swallow the rule. It is a rare case in which disciplined physicians do not challenge the peer review process. Moreover, both the Supreme Court of Georgia and this Court have confirmed that the absolute embargo applies to civil actions brought by a disciplined physician challenging the peer review process. The trial court did not abuse its discretion in denying Patton’s motion to compel discovery.

4. Patton contends that denying him access to the peer review material deprives him of his constitutional right of access to the courts. This issue has been addressed and rejected by the Supreme Court of Georgia. The applicable statutes do not deprive Patton of his right to access to the courts; they merely withhold from him a certain type of evidence which would otherwise be available to him.

Judgment affirmed.

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

Decided September 14, 2000

Chilivis, Cochran, Larkins & Bever, Anthony L. Cochran, James D. Durham, for appellant.

Hawkins & Parnell, Alan F. Herman, Love & Willingham, Kimberly L. Woodland, for appellees.

       OCGA §§ 31-7-133 (a); 31-7-143.

       OCGA § 31-7-133 (a).

       OCGA § 31-7-143.

        Eubanks v. Ferrier, 245 Ga. 763, 766 (4) (267 SE2d 230) (1980).

        Emory Clinic v. Houston, 258 Ga. 434-435 (1) (369 SE2d 913) (1988).

       See id.; Eubanks, supra. See also Freeman v. Piedmont Hosp., 264 Ga. 343 (444 SE2d 796) (1994); Baldwin County Hosp. Auth. v. Wright, 202 Ga. App. 9 (413 SE2d 484) (1991).

       See Freeman, supra.

       Id. at 345.

       Id.

       OCGA § 31-7-132 (a).

       OCGA § 31-7-133 (a).

       OCGA § 31-7-143.

       See Freeman, supra; Baldwin, supra.

        Eubanks, supra at 766 (4).

       Id.


text:
    A00A1688.
    BERRY v. THE STATE.
    (539 SE2d 516)
   Johnson, Chief Judge.

Sterling Berry was accused of possessing cocaine. He pled not guilty to the accusation, and the case was set for trial. The day before his trial, Berry filed a motion to suppress the cocaine on the basis that it had been unlawfully seized. The judge denied the motion because it was untimely.

Berry then moved in limine to exclude evidence of the cocaine because he had not received a copy of the state laboratory report. The prosecutors explained that they had gotten the report from the state laboratory only seven days before trial and that they had immediately mailed a copy of the report to Berry. Berry apparently did not receive this mailed copy, but was given a copy of the report the morning of trial. The court denied the motion in limine, and Berry next asked for a continuance of the trial so he could possibly hire his own expert witness. The trial court denied the motion to continue.

Berry then agreed to waive a jury trial and to proceed with a bench trial based solely on stipulated facts as set forth in the police report and the lab report, but only if he still preserved his rights to challenge on appeal the denials of his motions to suppress, in limine and for a continuance. The state and the court agreed with the procedure, and the case was tried before the judge without a jury.

The stipulated facts as set forth in the police report show that an officer saw Berry and two other men sitting on a bench at a bus stop. When the officer and his partner approached the men, they stood up and got on a bus. But the bus driver would not let Berry and one of the other men stay on the bus because they did not have bus fare. The officer asked Berry why he had tried to get on a bus without bus fare, and as he talked to Berry he noticed a bulge that looked like a knife or other weapon in Berry’s pocket. The officer checked the pocket and found two hits of suspected cocaine. According to the laboratory report, the substance taken from Berry tested positive for cocaine. Based on the police and laboratory reports, the court found Berry guilty of possessing cocaine.

Berry appeals from his conviction, challenging the denials of his motions to suppress, in limine and for a continuance. Berry’s challenges are without merit, and we therefore affirm his possession of cocaine conviction.

1. A motion to suppress unlawfully seized evidence must be filed at or before the defendant’s arraignment unless the time for filing is extended by the judge. Berry did not file his motion to suppress at or before arraignment and, instead, without having gotten an extension from the judge, waited until the day before trial to file the motion. Because of the untimely filing of his motion, the trial court did not err in finding that Berry had waived his right to challenge the admissibility of the evidence seized from him.

2. No later than ten days before trial, the prosecuting attorney shall permit the defendant to inspect and copy any scientific test reports. If the state gives the defendant late notice of a scientific report, the court may order the state to permit the discovery, grant a continuance or, upon a showing of prejudice and bad faith, exclude the evidence.

(a) Motion in limine. In the instant case, Berry made no showing of bad faith by the state. On the contrary, it is apparent that the prosecutors acted in good faith by immediately mailing a copy of the report to Berry once they had received it themselves. Absent any evidence of bad faith, the trial court did not err in denying Berry’s motion in limine to exclude evidence of the scientific test results.

(b) Request for a continuance. The trial court’s denial of Berry’s request for a continuance will not be interfered with unless the court abused its discretion. Berry asked for the continuance so he could hire his own expert, and he certainly would have been entitled to have an independent expert examine the substance if he had filed a timely motion for such an examination. Berry had several months before trial when he could have moved for an independent expert examination of the substance seized from him; he did not have to wait until he received the state’s report to move for such an examination. But Berry failed to make such a pre-trial motion and instead waited until the day of trial to orally ask for his own expert examination. Given such an untimely oral request, the trial court did not abuse its discretion in denying Berry a continuance on that basis.

Decided September 14, 2000.

David D. Bishop, for appellant.

Paul L. Howard, Jr., District Attorney, George W. K. Snyder, Jr., Assistant District Attorney, for appellee.

In his appellate brief, Berry argues that he needed the continuance in order to research the state crime laboratory testing methods so that he could adequately cross-examine the state’s expert witness. Berry, however, has not indicated where in the trial transcript he raised this argument, and our review of the transcript has not revealed that he made this argument at trial. Berry’s failure to raise this argument in the trial court precludes us from considering it for the first time on appeal.

Judgment affirmed.

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

       Uniform Superior Court Rule 31.1; Stewart v. State, 232 Ga. App. 565, 567 (2) (502 SE2d 502) (1998).

       See id.; Belcher v. State, 230 Ga. App. 235, 236 (1) (496 SE2d 306) (1998).

       OCGA § 17-16-4 (a) (4).

        Pace v. State, 271 Ga. 829, 839 (21) (a) (524 SE2d 490) (1999); Brady v. State, 233 Ga. App. 287, 289 (2) (503 SE2d 906) (1998).

       See id. at 290-291 (2).

       See Patrick v. State, 219 Ga. App. 888, 890 (1) (467 SE2d 211) (1996).

       See id.; Hunt v. State, 173 Ga. App. 638, 639 (327 SE2d 500) (1985).

       See id.; Stroud v. State, 176 Ga. App. 300, 301-302 (2) (335 SE2d 678) (1985).

       See Williams a State, 231 Ga. App. 123, 124, n. 3 (497 SE2d 660) (1998).


text:
    A00A1739.
    BONAR v. BONAR.
    (539 SE2d 521)
   Johnson, Chief Judge.

David Bonar appeals from an order of the Superior Court of Stewart County, Georgia, modifying his visitation rights. He contends that the Georgia court lacked jurisdiction to modify the decree entered by the Louisiana court. We agree and reverse the judgment of the trial court.

Kimberly Bonar filed for divorce from David Bonar in Louisiana on July 30, 1997. On August 18, 1997, the trial court entered a consent judgment, which provided that the parties’ two minor children would live primarily with Kimberly Bonar in Georgia, and set out a schedule by which they would visit David Bonar. The final judgment of divorce was entered in March 1998.

On August 5, 1998, the court ruled on a motion for contempt and to specify conditions of visitation filed by David Bonar. In the order, the trial court specified a visitation schedule and expressly provided that “[t]he [Louisiana] Court retains continuing, exclusive jurisdiction of the case under the provisions of La. R.S. 13:355.17, to enforce the terms of custody and visitation and to resolve any future disputes.”

In September 1998, after she had moved with the children to Georgia, Kimberly Bonar filed a petition in Stewart County, Georgia, seeking to modify David Bonar’s visitation rights. David Bonar, who had remained in Louisiana, challenged the subject matter jurisdiction of the court. The trial court found that it had jurisdiction, but denied Kimberly Bonar’s petition, finding that there had been no material change of circumstances and also that it was without jurisdiction to consider the matter because the Louisiana court had considered the issue less than two years before Kimberly Bonar filed the petition to modify the decree.

In January 2000, Kimberly Bonar filed another petition to modify visitation in Stewart County, Georgia. Again, David Bonar challenged jurisdiction. After determining that it had jurisdiction over the case, the Georgia court granted Kimberly Bonar’s petition to modify visitation. We granted David Bonar’s application for discretionary appeal.

1. The federal Parental Kidnapping Prevention Act (“PKPA”) applies in all interstate child custody disputes and provides uniform guidelines for resolving such disputes. The PKPA imposes on states a duty, under standards derived from the Uniform Child Custody Jurisdiction Act, to give full faith and credit to a custody decree of another state. The PKPA limits when a state, which would otherwise have jurisdiction over a child custody dispute, may modify the custody order of another state.

Under the PKPA, a court of one state can modify the child custody order of another state’s court only if: (1) it has jurisdiction to make such a child custody determination; and (2) the court of the other state no longer has jurisdiction or has declined to exercise its jurisdiction.

The first part of the test is satisfied. The Georgia court clearly had jurisdiction to modify the Louisiana judgment, since Georgia was the children’s home state at the time the modification petition was filed. Resolution of this case, therefore, depends upon whether the Louisiana court has continuing jurisdiction over the subject matter. If the Louisiana court has continuing jurisdiction and has not declined to exercise that jurisdiction, Georgia’s courts lack jurisdiction to modify the Louisiana court’s custody order.

According to the PKPA, the Louisiana court still has jurisdiction to modify its custody order so long as jurisdiction continues under the laws of Louisiana and Louisiana remains the state of residence of the children or either parent. Because David Bonar is a Louisiana resident, the only question remaining is whether jurisdiction continues under Louisiana law.

Under Louisiana law, “[i]f the court grants authorization to relocate, the court may retain continuing, exclusive jurisdiction of the case after relocation of the child as long as the non-relocating parent remains in the state.” In this case, the Louisiana court has continuing jurisdiction because it authorized the relocation and David Bonar remained a resident of the state. Moreover, the fact that the Louisiana court intended to retain jurisdiction is evidenced by the express terms of its judgment, which refer to the state’s continuing jurisdiction statute. That Georgia also may have a “significant connection” as the current “home state” or because “substantial evidence” may be available here does not change the fact that Louisiana retained continuing jurisdiction over the case.

We disagree with Kimberly Bonar’s contention that certain appellate court decisions require a contrary result. The cases upon which she relies either do not involve Louisiana law or were decided under the law as it existed before Louisiana’s recently enacted “continuing jurisdiction” statute became effective.

2. We also disagree with Kimberly Bonar’s assertion that, because the jurisdiction issue was already decided adversely to David Bonar in the earlier case, he is precluded from challenging jurisdiction in this case. Although the basis for her argument is not clear, she apparently relies on the “law of the case” rule. That reliance is misplaced, however, since that rule only applies to rulings by the Supreme Court or the Court of Appeals, and the previous case was not considered by an appellate court.

Furthermore, the issue of whether the Georgia court has jurisdiction is only one of two prongs which must be considered in these cases. In its order in the first action, the trial court did not address the second prong of the PKPA, which is whether the Louisiana court has continuing jurisdiction or has declined to exercise jurisdiction.

3. Finally, Kimberly Bonar’s argument that we should not consider Louisiana law because David Bonar did not properly introduce the foreign law is without merit. Under the terms of the PKPA, the law of Louisiana is relevant in deciding whether that state still has jurisdiction over the case. Moreover, David Bonar put Kimberly Bonar on notice of his intent to rely on foreign law in his answer to the petition. And, Kimberly Bonar has herself relied upon foreign law in responding to David Bonar’s appeal. Therefore, we are not required to presume that the law in Louisiana is the same as that of Georgia.

Decided September 14, 2000.

McKelvey & Calhoun, Howard S. McKelvey, Jr., for appellant.

Bowles & Bowles, Jesse G. Bowles III, for appellee.

4. Because the trial court lacked authority to consider the merits of the petition for' the reasons set out above, the judgment must be reversed. The case is remanded to the trial court with direction that it dispose of the matter in a manner consistent with this opinion.

Judgment reversed and case remanded with direction.

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

       Although the trial court cited La. R.S. 13:355.17, it apparently intended to cite La. R.S. 9:355.17, inasmuch as the latter statute concerns continuing, exclusive jurisdiction, and 13:355.17 is nonexistent.

       28 USC § 1738A.

        Wilson v. Gouse, 263 Ga. 887, 889 (1) (441 SE2d 57) (1994); Henderson v. Justice, 237 Ga. App. 284, 289 (3) (514 SE2d 713) (1999).

       Id.

        Garrett v. Garrett, 267 Ga. 356, 357 (477 SE2d 804) (1996).

       28 USC § 1738A (f); Henderson, supra.

       OCGA § 19-9-43 (a) (1) (A).

       See Garrett, supra at 357 (2).

       La. R.S. 9:355.17.

        Garrett, supra at 358 (2).

       La. R.S. 9:355.17 (providing that the court may retain continuing, exclusive jurisdiction of the case as long as the nonrelocating parent remains in Louisiana) was enacted in 1997 and applies to, inter alia, custody/visitation orders issued on or after August 15, 1997.

       See Bruce v. Garges, 259 Ga. 268, 270 (2) (379 SE2d 783) (1989).

       See Garrett, supra at 357-358 (2).

        Meeker v. Eufaula Bank &c., 208 Ga. App. 702, 704 (2) (431 SE2d 475) (1993).


author: Ruffin, Judge.

text:
    A00A1750.
    BROOKS v. MERIWETHER MEMORIAL HOSPITAL AUTHORITY et al.
    (539 SE2d 518)
   Ruffin, Judge.

Willa Mae Brooks sued Meriwether Memorial Hospital Authority for malpractice in connection with the death of her husband. Meriwether moved for summary judgment on the grounds that the suit was filed outside the five-year statute of repose set forth in OCGA § 9-3-71 (b). The trial court granted Meriwether’s motion, and Brooks appeals. For reasons discussed below, we affirm.

1. Brooks argues that OCGA § 9-3-71 (b) is unconstitutional because it arbitrarily treats medical malpractice claims differently from other tort claims. This Court generally does not have jurisdiction to rule on the constitutionality of a statute. However, “[w]here a law has been held to be constitutional as against the same attack being made, the case requires merely an application of unquestioned and unambiguous constitutional provisions and jurisdiction of the appeal is in the Court of Appeals.”

In Hamby v. Neurological Assoc., the Supreme Court considered a challenge to the constitutionality of Code Ann. § 3-1102, the predecessor to OCGA § 9-3-71 (a), which established a two-year statute of limitation for medical malpractice actions. The Court held that “the separate classification of medical malpractice actions is a rational exercise of the legislative power.” Thus, the Court held that there was a rational basis for treating loss of consortium claims arising out of medical malpractice differently from other loss of consortium claims. The Court later reaffirmed this decision in Perry v. Atlanta Hosp. &c.

In 1985, the legislature amended OCGA § 9-3-71 to, among other things, add subsection (b) setting forth the five-year statute of ultimate repose for medical malpractice actions. In Craven v. Lowndes County Hosp. Auth., the plaintiff claimed that the statute of repose violated equal protection by arbitrarily distinguishing between different classes of medical malpractice plaintiffs. The Supreme Court rejected this argument, holding that “the purpose of the statute of repose is rational.”

Brooks contends that Craven is distinguishable because it did not address the same equal protection challenge as in this case. It is not necessary to rely on Craven, however, since Brooks’ argument — that it is arbitrary to treat medical malpractice claims differently from other tort claims — is precisely the argument rejected by the Supreme Court in Hamby and Perry. Although those cases dealt with attacks on the two-year statute of limitation, and not the five-year statute of repose, Brooks does not contend that the classification at issue may be proper for purposes of a statute of limitation but improper for purposes of a statute of repose. Her argument is simply that there is no rational basis for treating medical malpractice claims differently from other tort claims. As the Supreme Court stated in Hamby, however, “the separate classification of medical malpractice actions is a rational exercise of the legislative power.” Accordingly, Brooks’ equal protection challenge “requires merely an application of unquestioned and unambiguous constitutional provisions,” and can thus be considered, and rejected, by this Court.

Decided September 14, 2000.

F. Robert Raley, for appellant.

2. Brooks also contends that OCGA § 9-3-71 (b) deprives her of the right to due process of law. Other than quoting the due process clause of the Georgia Constitution (“No person shall be deprived of life, liberty, or property except by due process of law”), however, she provides no citation to any authority to show that the statute denies her the right to due process, either on its face or as applied. Nor does she provide any real argument in support of her contention, except to repeatedly assert that she is being denied due process of law. Although she mentions certain facts which suggest she is contending that the statute is unconstitutional only as applied to her case, she provides no citations to the record to support such factual assertions, nor does she provide any legal argument as to how such facts show a denial of due process. We do not believe that this constitutes the type of argument necessary to preserve an enumeration for appellate review.

3. Brooks argues that OCGA § 9-3-71 (b) violates Art. III, Sec. VI, Pars. TV and VI of the Georgia Constitution. However, she did not raise this issue in the trial court and is thus precluded from raising it on appeal.

4. Finally, Brooks argues that the statute of repose should not apply to the facts of her case. She claims that she had previously filed a medical malpractice action within the limitation period, but that she was “forced” to dismiss it and refile at a later date because a witness became ill. Because the dismissal was “not within the control of [Brooks],” she asserts that “[p]ublic [p]olicy dictates that ... an exception ... be made to the statute of repose.” Brooks does not, however, provide any record citations to support her factual assertions, nor does she provide any citation to authority or legal argument. Even if we were to accept her factual assertions, nothing in the statute suggests that it does not apply when a plaintiff dismisses and refiles outside the statutory period due to the illness of a witness. Accordingly, this enumeration is without merit.

Judgment affirmed.

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

Weinberg, Wheeler, Hudgins, Gunn & Dial, Robert G. Tanner, for appellees.

        Helmeci v. State, 230 Ga. App. 866, 868 (1) (498 SE2d 326) (1998).

        Zepp v. Mayor &c. of Athens, 255 Ga. 449, 451 (2) (339 SE2d 576) (1986).

       243 Ga. 698 (256 SE2d 378) (1979).

       Id.

       255 Ga. 431 (339 SE2d 264) (1986).

       Ga. L. 1985, p. 556, § 1.

       263 Ga. 657 (437 SE2d 308) (1993).

       Id. at 659 (1).

        Hamby, supra.

        Zepp, supra.

       See Thompson v. Long, 225 Ga. App. 719-720 (1) (484 SE2d 666) (1997) (physical precedent only) (holding that OCGA § 9-3-71 (b) does not arbitrarily distinguish between medical malpractice and other tort claimants).

       Ga. Const., Art. I, Sec. II, Par. I.

       See Clark v. Stafford, 239 Ga. App. 69, 74 (4) (522 SE2d 6) (1999).

       See White v. KFC Nat. Mgmt. Co., 229 Ga. App. 73, 74 (1) (493 SE2d 244) (1997); Dupre v. Scappaticcio, 244 Ga. 179 (259 SE2d 440) (1979).


text:
    A00A0962.
    GENERAL LIGHTING DISTRIBUTING, INC. v. COBB COUNTY.
    (538 SE2d 807)
   Ruffin, Judge.

Cobb County condemned a parcel of land owned by General Lighting Distributing, Inc. for a road improvement project. Following a hearing, a special master awarded General Lighting $450,000. General Lighting appealed the award, demanding a jury trial. The jury returned a verdict for $506,300, and the trial court entered judgment for General Lighting in that amount. General Lighting appeals, contending that the trial court gave an erroneous jury charge on the burden of proving business damages. As the charge was a correct statement of the law, we affirm.

At trial, General Lighting sought damages for “the diminished value of the business” due to having to relocate. At trial, the judge charged the jury that

[bjusiness losses are recoverable as a separate item of damages only if you believe from the evidence that the property involved is unique. The burden of proving such uniqueness is upon the defendant, and the defendant must carry that burden by a preponderance of the evidence, as I have previously defined it to you in this charge.

Counsel for General Lighting objected to this charge as improperly placing the burden of proof on the condemnee. We disagree.

In cases involving a total taking of property, the general measure of damages is the fair market value of the property. The burden of proving the value of the property rests with the condemnor, although the condemnee must produce evidence if it asserts that the property has a greater value than that shown by the condemnor. Accordingly, in Glover v. Dept. of Transp., we ruled that “a charge that where the condemnee asserts that he is entitled to compensation greater than that shown by the condemnor’s evidence the burden of proof rests upon him to prove by a preponderance of the evidence that his assertion is true, is error.”

If the condemnee is not adequately compensated by fair market value, then it may be entitled to other types of damages, including “loss of profits and diminution of the business.” Business losses are recoverable, however, only if the property is “unique.” Whether the property is “unique” is a jury question which “depends upon the characteristics and location of the property in conjunction with the use to which it is being put.” We have held that the condemnee bears the burden of proving uniqueness. Thus, the trial court’s instruction that General Lighting bore the burden of proving uniqueness by a preponderance of the evidence was not error.

General Lighting asserts that our cases holding that the condemnee bears the burden of proving uniqueness cannot be reconciled with other cases holding that “[t]he burden of proving value and damages never shifts from the condemnor.” These two principles, however, are not in conflict. In the usual condemnation case, where the measure of damages is the fair market value of the property, the condemnor bears the burden of proving that value, and the burden of proof does not shift to the condemnee even if the condemnee disputes the figures offered by the condemnor. Because business losses are a separate category of damages available in addition to fair market value only in special cases where fair market value does not provide adequate compensation, the condemnee bears the burden of demonstrating that the condemned property is unique, thus establishing an entitlement to those extra damages.

Judgment affirmed.

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

Decided August 30, 2000

Reconsideration denied September 15, 2000

G. Gibson Dean II, for appellant.

Bentley, Bentley & Bentley, Fred D. Bentley, for appellee.

       Cobb County contends that General Lighting has waived its challenge on appeal because it did not object to the trial court’s failure to give a specific charge on the condemnor’s burden of proof. But General Lighting did object to the charge that the condemnee bears the burden of proving uniqueness, and that is the charge at issue here.

        Dept. of Transp. v. Sharpe, 213 Ga. App. 549, 550 (1) (445 SE2d 343) (1994); MARTA v. Ply-Marts, Inc., 144 Ga. App. 482, 483 (1) (241 SE2d 599) (1978).

        Lewis v. State Hwy. Dept., 110 Ga. App. 845, hn. 1 (b) (140 SE2d 109) (1964); Pendarvis Constr. Corp. v. Cobb County-Marietta Water Auth., 239 Ga. App. 14, 15 (1) (520 SE2d 530) (1999).

       166 Ga. App. 512 (304 SE2d 567) (1983).

       (Punctuation omitted.) Id. at 513.

        MARTA, supra.

        Dept. of Transp. v. Dixie Hwy. Bottle Shop, 245 Ga. 314, 315 (265 SE2d 10) (1980).

       Id.

        Raiford v. Dept. of Transp., 206 Ga. App. 114, 119 (2) (424 SE2d 789) (1992).

        See Kim v. Metro. Atlanta Olympic Games Auth., 227 Ga. App. 563 (1) (489 SE2d 372) (1997) (“[t]he condemnee has the burden of proving the property to be unique”); MARTA, supra (“the rule is that. . . claimed loss of business will not be considered, unless the condemnee has proved that the condemned property has some unique or peculiar relationship to the condemnee and his business”).

       (Punctuation omitted.) Pendarvis, supra.


text:
    A00A1626.
    NAILS v. REBHAN et al.
    (538 SE2d 843)
   Johnson, Chief Judge.

Clifford Winecoff executed his will on October 27, 1992. The will directs, upon Winecoff’s death, that Karlene Carver receive $10,000, that Louise Nails receive $25,000 plus all Winecoff’s real estate and personal property, and that Dorothy Rebhan, Winecoff’s sister, receive the rest of his money. On the day that he executed the will, Winecoff also signed a document giving Nails, a neighbor and caregiver, a general power of attorney over his affairs.

On July 1, 1993, two days before his death, Winecoff became ill, and Nails took him to see his doctor. After the doctor visit, Nails drove Winecoff home. She then went alone to Coffee County Bank where Winecoff had a certificate of deposit, a checking account, and a safe deposit box. Using her power of attorney, Nails attempted to add her name to the certificate, account, and box. But a bank employee told Nails that Winecoff himself should sign the documents to add her name to his accounts.

Nails then drove to Trust Company Bank where Winecoff had another certificate of deposit. Janice Beasley, Nails’ sister-in-law, worked at the bank. Nails told Beasley that she wanted to add her name to Winecoff’s account. Relying on the power of attorney, Beasley helped Nails fill out a form adding her name to Winecoff’s certificate of deposit.

Nails next went home, picked up Winecoff, and drove him to his attorney’s office. The attorney’s secretary, Debbie Lee, notarized a letter signed by Winecoff authorizing Coffee County Bank to add Nails’ name to his certificate of deposit, checking account, and safe deposit box. Nails then took the documents to the bank.

Winecoff died on Saturday, July 3, 1993. At 9:00 a.m., on Tuesday, July 6, Nails went to Trust Company Bank and redeemed Winecoff’s certificate of deposit for $86,459, incurring a penalty of $743 for early withdrawal of the funds. She then went to Coffee County Bank and, at 9:45 a.m., emptied and closed Winecoff’s safe deposit box. A week later, on July 13, Nails cashed a check for $10,000 on Winecoff’s Coffee County Bank account.

Rebhan and Carver, the administrators of Winecoff’s estate, sued Nails to recover both the money that she took from Winecoff s bank accounts and the funds that were still deposited at the banks. The case was tried before a jury, which returned a verdict in favor of Rebhan and Carver. The court entered judgment on the verdict, awarding the administrators $86,459 as the amount of the Trust Company certificate of deposit, $50,000 as the amount of the Coffee County Bank certificate of deposit, and $18,122 as the amount of the Coffee County Bank checking account.

Nails appeals, arguing that the court should have directed a verdict in her favor and that the court erred in failing to give two of her requested jury charges. The arguments are without merit, and we therefore affirm the judgment of the trial court.

1. In reviewing the denial of a directed verdict motion, we apply the “any evidence” standard and construe the evidence most favorably toward the party opposing the motion. This standard of review requires the appellant to show that there is no conflict in the evidence as to any material issue and that the evidence demands the verdict sought.

In the instant case, Nails contends that the uncontradicted evidence shows that Winecoff intended to give her all of the money in his bank accounts. Nails herself testified that Winecoff had told her that he wanted to add her name to his accounts so that his money would go to her because she was the only one who had helped him. Winecoff’s attorney testified that Winecoff had called him and asked how to make sure that Nails’ name was on some of his bank accounts. And there is evidence that Winecoff signed documents authorizing the addition of Nails’ name to his Coffee County Bank accounts.

In spite of this evidence, the fact remains that Winecoff’s will expressly provides that Carver receive $10,000, that Nails receive $25,000, and that Rebhan receive all the rest of Winecoff’s money. There is no evidence that the will was either revoked or amended to provide that Nails receive all the money in Winecoff’s bank accounts.

Thus, contrary to Nails’ contention, the evidence is in conflict as to whether Winecoff intended for her to have all the money in his accounts. The jury was authorized to disbelieve Nails’ claim that Winecoff told her that he wanted her to have his money and to believe instead that his true intentions regarding his money are reflected by his will. Based on the evidence, the jury was justified in concluding that Nails is not entitled to all of Winecoff’s money, but that his money should be distributed as directed by the will. Because the evidence does not demand the verdict sought by Nails, the trial court did not err in denying Nails’ motion for a directed verdict.

2. Citing Jordan v. Stephens, Nails requested that the trial court give the following jury charge:

[EJvidence that a depositing joint tenant intends a surviving joint tenant to have assets upon the decedent’s death precludes a claim that the survivor, who is attorney in fact for the depositor, breached any duty of loyalty by obtaining the joint tenancy interest.

The court refused to give the requested charge, and Nails now argues that the court’s refusal was error. The argument is without merit.

The holding in Jordan does not stand for the proposition set forth in Nails’ requested charge. That case simply held that the trial court correctly denied the plaintiff’s directed verdict motion where there was some evidence that the decedent intended that, upon her death, her joint tenant have certain assets.

Moreover, the trial court in the present case correctly charged the jury on the survivorship rights of a party to a joint account as set forth in OCGA § 7-1-813 (a), which provides:

Sums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent, unless there is clear and convincing evidence of a different intention at the time the account is created.

“[A] trial court does not err in refusing to give a requested charge that is not legally accurate and adjusted to the evidence.” In this case, the trial court did not err in giving the jury a charge on the statutory law of survivorship rights, rather than giving Nails’ legally inaccurate requested charge.

3. Nails complains that the trial court erred in refusing to give the following requested charge:

[T]he primary issue for your consideration is determining Clifford Ray Winecoff’s intent when he established the joint accounts in question and, if you determine that the evidence shows that Clifford Ray Winecoff intended for Louise B. Nails to have the monies in such accounts at his death, your verdict should be in favor of the Defendant, Louise B. Nails.

Decided August 31, 2000

Reconsideration denied September 15, 2000.

Thomas H. Pittman, for appellant.

Farrar & Hennesy, Curtis Farrar, for appellees.

Contrary to Nails’ complaint, the court’s refusal to give this charge was not error.

The trial court’s failure to give a jury charge in the exact language requested is not error where the charges actually given substantially cover the principles contained in the request. Here, the trial court fully charged the jury on the parties’ opposing contentions as set forth in the complaint and the answer. The court also charged on the law concerning joint accounts, including, as discussed in Division 2, a charge that sums in a joint account belong to the surviving party to the account unless there is clear and convincing evidence of a different intention at the time the account was created. The court further charged the jurors on the form of their verdict, instructing them that after considering all the evidence and law that they must determine whether the plaintiffs or the defendant is entitled to the Trust Company certificate of deposit, the Coffee County Bank certificate of deposit, and the Coffee County Bank checking account.

Having reviewed the charge in its entirety, we find that the court fully and accurately instructed the jury on the issues to be decided, including the issue of Winecoff’s intentions with regard to the money in the bank accounts. Because the principles in the requested instruction were substantially covered by the court’s charge, the court did not err in refusing to give the requested charge.

Judgment affirmed.

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

        Owens v. McGee & Oxford, 238 Ga. App. 497 (1) (518 SE2d 699) (1999).

       Id.

       See Smithson v. Parker, 242 Ga. App. 133, 135 (1) (528 SE2d 886) (2000).

       id.

       221 Ga. App. 8 (470 SE2d 733) (1996).

       Id. at 9 (1).

        Wadkins v. Smallwood, 243 Ga. App. 134, 139 (5) (530 SE2d 498) (2000).

        Dept. of Transp. v. Dalton Paving &c., 227 Ga. App. 207, 224 (10) (489 SE2d 329) (1997).

       See Wadkins, supra at 140.


author: MIKELL, Judge.

text:
    A00A1726.
    BURKS v. THE STATE.
    (538 SE2d 769)
   MIKELL, Judge.

On March 30, 1995, Antonio Burks was convicted of rape, burglary and kidnapping. On appeal, he contends the trial court’s refusal to charge the principle of circumstantial evidence embodied in OCGA § 24-4-6 warrants reversal of his convictions. Finding the error harmless, we affirm.

Evidence adduced at trial shows that the victim and Burks had had an extended relationship. The victim testified that the relationship terminated on March 13, 1994, and that one week later, she had a chance encounter with Burks on the street. Burks shoved the victim and ripped off her shirt; she scraped her knee. She went to a friend’s house and called the police. The incident was witnessed by the friend, who testified at trial. Burks admitted his actions, testifying that he was unwilling to stand for the victim “disrespecting” him.

Six weeks later, the victim and her new boyfriend encountered Burks. The following morning at 3:00 a.m., the victim went downstairs to feed her infant and discovered Burks in her living room. Burks pointed a gun at the victim, who was holding the baby, and ordered her to come with him to the apartment where Burks resided with another woman. There, Burks, a former boxer, used his fist to beat the victim about the face.

The victim also testified that Burks struck and “tortured” her with his gun before he raped her. The victim identified the gun. After the attack, Burks took the victim outside. Burks told her he had enough bullets in his gun to kill her, her baby, her mother, and himself, and he fired a shot into the air. The victim returned to her apartment and called the police.

A female officer responded to the call and found the victim in tears. The victim led the officer to the apartment where the assault had taken place. Burks was there; he told the officer it was a “big misunderstanding.” The victim told the officer that Burks had hit her with a board and had fired a weapon. The officer found the board as well as a shell casing close to where the victim said Burks fired the gun. The board and shell casing were admitted into evidence.

The officer testified that Burks initially denied the entire incident and later claimed that he and the victim had had consensual relations. A second officer questioned Burks, who then claimed that he and the victim had had consensual sex in an apartment belonging to “Michelle.” Burks was unable to identify “Michelle” or point out the location of her apartment.

Burks testified and asserted the defense of consent. He claimed that he and the victim reconciled after he tore off her shirt in public. He further claimed they had sexual relations the day before the rape. Then, later in the day, he saw her with “some guy she said was her boyfriend.” Upset, Burks could not sleep that night. He asked someone to throw rocks at the victim’s window. She awoke and agreed to come outside and speak to him. Burks admitted he became angry and struck the victim but alleged he did not have a gun. Burks then testified that he apologized and the victim consented to sexual relations; that the victim left; and that he retrieved a gun he had hidden in a vase and fired one shot. He offered no reason for doing so.

On cross-examination, Burks admitted causing the bruises on the victim’s face, pictures of which were introduced into evidence. Burks also admitted that he beat the victim throughout their relationship. Additionally, Burks admitted using his fists to beat the victim’s stepfather into unconsciousness when the stepfather tried to assist the victim in getting away from Burks the week after they broke up. Finally, Burks testified that when he struck the victim, he “wanted to give her physical pain for my emotional pain.”

1. Burks first contends that the evidence was insufficient to support his rape conviction because the state failed to introduce evidence of penetration. Burks bases this argument on evidence that he stood behind the victim during the sex act. He therefore claims the testimony is consistent with a finding of sodomy. This argument is wholly without merit.

Under OCGA § 16-6-1, a man commits rape when he has carnal knowledge of a woman forcibly and against her will. Carnal knowledge is defined as “any penetration of the female sex organ by the male sex organ.”

A medical examination of the victim conducted within hours after Burks abducted and assaulted her revealed the presence of sperm inside her vagina. The victim testified that Burks “raped [her] standing up” and that they “had sex.” She also testified that she informed Burks that she was menstruating, which information would have been irrelevant unless Burks intended to penetrate her vaginally. Burks responded negatively when asked whether he saw “any blood when [he was] penetrating her and having sex with her standing in that bedroom.” Accordingly, we conclude that the evidence is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of penetrating the victim’s sex organ with his sex organ in violation of OCGA § 16-6-1.

2. Trial courts are required to charge the jury on the principles of circumstantial evidence under OCGA § 24-4-6 when the state’s case includes both direct and circumstantial evidence, and the defendant has requested such a charge.

In this case, the trial court instructed the jury concerning the definitions of, and the differences between, direct and circumstantial evidence. The court further charged that “the comparative weight of circumstantial evidence and direct evidence on any given issue is a question of fact for you the jury to decide.” However, the court refused to give Burks’s written request to charge in the language of OCGA § 24-4-6: “To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.”

Burks reserved his objections to the charge. The state presented circumstantial as well as direct evidence of Burks’s guilt. Accordingly, the trial court erred in refusing to give the requested charge.

The requested charge has been highly favored by the appellate courts ever since the Supreme Court’s well-known decision in Robinson v. State. The Council of Superior Court Judges in its Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (2nd ed. 1999), states on page 11: “Although there may be exceptions, the Pattern Jury Instructions Committee feels it is a safer practice to give the circumstantial evidence charge in every case.” (Emphasis supplied.)

We are surprised that some trial courts continue to resist giving the complete pattern charge even after a written request by the defendant.

In light of . . . [Robinson,] a trial court positively invites reversal of a criminal conviction when it fails to give the circumstantial evidence charge whenever such a charge is requested. . . . Virtually every case contains some circumstantial evidence and, if the charge is not given, stands in danger of being reversed for clearly harmful and erroneous error. The charge is a fundamental principle of law as to criminal guilt and there is no reason not to give it; the [s]tate is not harmed by it and has no right to have it omitted.

However, as implied in Mims v. State, omitting the complete charge is not harmful error in all instances. In Mims, the court found “that the evidence was close enough that [the] failure to give this charge was not harmless.” By necessary implication, the error could be deemed harmless when the evidence of guilt is overwhelming, as it is in the case at bar. In such situations, this court has held that reversal would be a perversion of justice.

Decided August 28, 2000

Reconsideration denied September 15, 2000

Carl P. Greenberg, for appellant.

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

In the instant case, the failure to give the circumstantial evidence charge, although error, was rendered harmless by the overwhelming evidence of Burks’s guilt. The testimony of both the victim and Burks establishes that sexual relations took place. Uncontroverted expert testimony established that the victim had multiple contusions on her face as well as sperm in her vagina shortly after the attack. The beating the victim endured, which Burks admittedly inflicted, in addition to her testimony that she did not consent to sexual relations, demonstrates that she was raped. Accordingly, we hold that the evidence and all reasonable deductions therefrom are completely inconsistent with any hypothesis of innocence, and we affirm Burks’s convictions.

Judgment affirmed.

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

        Fields v. State, 216 Ga. App. 184, 187 (2) (453 SE2d 794) (1995) (victim’s testimony that defendant forced her to “have sex” with him held evidence of penetration).

        Mims v. State, 264 Ga. 271, 272 (443 SE2d 845) (1994).

       261 Ga. 698 (410 SE2d 116) (1991).

       See generally Newsome v. State, 217 Ga. App. 379, 381 (457 SE2d 232) (1995) (Birdsong, P. J.) (“The failure to give the charge is an incomprehensible waste of judicial economy. . . .”).

        Johnson v. State, 210 Ga. App. 99, 100 (435 SE2d 458) (1993) (Birdsong, P. J.), quoted with approval, Mims, supra at 272, n. 2.

       Supra at 273.

       See, e.g., Johnson v. State, 236 Ga. App. 252, 256 (3) (511 SE2d 603) (1999); Livery v. State, 233 Ga. App. 882, 885 (3) (506 SE2d 165) (1998); Cornish v. State, 219 Ga. App. 884, 885 (1) (466 SE2d 919) (1996); Ellerbee v. State, 215 Ga. App. 102, 104 (4) (449 SE2d 874) (1994); Johnson v. State, supra, 210 Ga. App. at 100.


text:
    A00A1716.
    CHERRY v. HUGHES SUPPLY COMPANY.
    (539 SE2d 536)
   Johnson, Chief Judge.

Larry Cherry is a plumber who used to do business as A & A Mechanical. In 1990, A & A applied for and received credit from Hughes Supply Company. The credit application identified Cherry as the owner of the business.

In 1992, General Plumbing Company applied for and received credit from Hughes Supply, indicating on the application that it had previously done business as A & A Mechanical, but had changed its name. General Plumbing’s application listed the same mailing address as well as three of the same trade references that A & A had listed on its credit application. And Cherry was one of the two plumbers who provided the business’ plumbing services. But instead of identifying Cherry as the owner of General Plumbing, the application named his wife, Patsy Cherry, who is not a plumber, as the business owner.

Near the beginning of 1995, General Plumbing failed to pay its credit account balance. Hughes Supply unsuccessfully demanded payment, and then sued Patsy Cherry to recover the debt. Hughes Supply eventually obtained a consent judgment against her in the amount of $3,475. Thereafter, Patsy Cherry filed for bankruptcy and secured a discharge of, among other things, the Hughes Supply debt.

In 1997, Larry Cherry was doing business as Lakeside Plumbing Company. Lakeside applied for and received credit from Hughes Supply. The credit application, which named Larry Cherry as the business owner, gave the same business mailing address that both A & A Mechanical and General Plumbing had used. The application also listed two of the same trade references that A & A and General Plumbing had listed on their applications.

In August 1997, Lakeside failed to pay the balance of its credit account, so Hughes Supply closed the account. In September of that year, Cherry paid the Lakeside account balance and also paid the 1995 debt of General Plumbing. Hughes Supply then reopened Lakeside’s credit account. Thereafter, Lakeside again defaulted on its account.

Hughes Supply eventually sued Larry Cherry to recover the principal amount of $23,283 owed on the Lakeside account. Cherry answered the complaint and counterclaimed that Hughes Supply had violated the federal Equal Credit Opportunity Act by discriminating against him based on his marital status. Cherry claimed that Hughes Supply had improperly required him to pay his wife’s General Plumbing debt as a condition of reopening his Lakeside account. Hughes Supply moved for summary judgment. The trial court granted summary judgment to Hughes Supply on both its claim and on Cherry’s counterclaim.

Cherry appeals from the summary judgment order. He does not challenge the grant of summary judgment to Hughes Supply on its claim for the unpaid Lakeside debt, but challenges only the grant of summary judgment to Hughes Supply on his Equal Credit Opportunity Act counterclaim. He argues that there are genuine issues of material fact as to whether Hughes Supply violated the Act by requiring him to pay his wife’s General Plumbing debt, by closing his Lakeside account, and by requiring his wife to personally guarantee the Lakeside account as a condition of reopening it. The arguments are without merit, and we therefore affirm the judgment of the trial court.

1. The Equal Credit Opportunity Act makes it unlawful for a creditor to discriminate against a credit applicant on the basis of, among other things, marital status. A burden-shifting process applies to actions brought pursuant to this Act. First, the plaintiff must prove by a preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff proves a prima facie case, the burden shifts to the defendant to articulate a legitimate nondiscriminatory reason for its credit decision. Third, if the defendant meets its burden, the plaintiff must then prove by a preponderance of the evidence that the reason articulated by the defendant is not its true reason, but is a pretext for discrimination.

In the instant case, we assume for the sake of argument that Cherry has made a prima facie showing of discrimination based on his claims that he had no ownership interest in General Plumbing, that his wife owned that business, that Hughes Supply closed his Lakeside account because of the unpaid General Plumbing debt, and that Hughes Supply required him to pay that debt before it would reopen his Lakeside credit account.

In response to Cherry’s prima facie case, Hughes Supply has offered legitimate and nondiscriminatory reasons for closing the Lakeside account and for requiring Cherry to pay the General Plumbing debt. Hughes Supply closed the Lakeside account because it was past due, and Hughes Supply further believed that Cherry was liable for the General Plumbing debt because he was in fact an owner of that business. Based on the facts that Cherry was initially in business as A & A Mechanical, that A & A then changed its name to General Plumbing, that Cherry was the plumber for both A & A and General Plumbing, that Cherry subsequently did business as Lakeside, and that all three businesses have the same mailing address and have used the same trade references, we conclude that Hughes Supply justifiably believed that Cherry was in business with his wife as General Plumbing. Whether under the name of A & A, Lakeside, or General Plumbing, Cherry sought, obtained, benefitted from, and defaulted on credit from Hughes Supply.

Cherry has come forward with no evidence that Hughes Supply’s rationale is a pretext for marital status discrimination. On the contrary, it is clear that Hughes Supply did not close the Lakeside account and require Cherry to pay the General Plumbing debt based on his marital status. The fact that Cherry is married to the person whose name is on the General Plumbing credit application is incidental. Under the same circumstances, if the name on the application had been Cherry’s brother rather than his wife, Hughes Supply still would have required him to pay the debt because it would have justifiably believed that he was responsible for it. Instead of Cherry’s marital status, the controlling considerations behind Hughes Supply’s actions were its beliefs that Cherry had not paid the Lakeside account and was also obligated to pay the General Plumbing debt as an owner of that business.

Decided September 15, 2000.

James D. Rogers, Kris K. Skaar, for appellant.

Pursley, Howell, Lowery & Meeks, Roy H. Meeks, Jr., for appellee.

Summary judgment is appropriate when there are no genuine issues of material fact. In this case, there are no genuine issues of material fact. Cherry has failed to present any evidence that Hughes Supply intentionally discriminated against him based on his marital status by closing his Lakeside account and by requiring him to pay the General Plumbing debt. The trial court therefore did not err in granting summary judgment to Hughes Supply on Cherry’s Equal Credit Opportunity Act counterclaim.

2. Cherry also claims that Hughes Supply discriminated against him under the Equal Credit Opportunity Act by requiring his wife to personally guarantee the Lakeside account as a condition of reopening it. But Cherry did not assert this claim in his two-count counterclaim, which alleged violations of the Act based only on (1) Hughes Supply’s failure to provide a proper statement of its reason for threatening to discontinue the Lakeside account, and (2) Hughes Supply’s requirement that he pay the General Plumbing debt. Because the present argument was not a ground asserted in the counterclaim, it provides no basis for reversing the trial court’s judgment.

Judgment affirmed.

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

       15 USC § 1691 (a) (1).

        Mercado-Garcia v. Ponce Fed. Bank, 779 FSupp. 620, 628 (III) (D. P.R. 1991), aff’d, 979 F2d 890 (1st Cir. 1992).

       Id.

       Id.

       Id.

       Hughes Supply’s credit manager contradicted Cherry’s claim, testifying that Cherry offered to pay General Plumbing’s debt.

       See Haynsworth v. South Carolina Elec. &c. Co., 488 FSupp. 565, 567-570 (D. S.C. 1979) (no violation of Equal Credit Opportunity Act where utility refused to put residential account in plaintiff’s name because it held her hable for an outstanding debt in her husband’s name, even though he no longer lived in the residence). See also Haynes v. Bank of Wedowee, 634 F2d 266 (5th Cir. 1981) (no discrimination under Equal Credit Opportunity Act where bank considered bankruptcy of plaintiff’s husband in deciding to accelerate plaintiff’s loan).

       OCGA § 9-11-56 (c).

       See Mercado-Garcia, 979 F2d at 893.


author: Eldridge, Judge.

text:
    A00A2094.
    WILSON v. THE STATE.
    (539 SE2d 539)
    Decided September 15, 2000.
    Donald P. Wilson, pro se.

      Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Assistant District Attorney, for appellee.
   Eldridge, Judge.

Donald Paul Wilson appeals from a Fulton County Superior Court’s order dismissing his motion to withdraw his guilty plea to the offense of theft by taking. However, we find no error. The superior court no longer had jurisdiction to consider Wilson’s motion to withdraw because the term of court in which the judgment of conviction was entered had expired. Aikens v. State, 241 Ga. App. 816, 817 (527 SE2d 916) (2000). Wilson’s remedy for any error with regard to the entry of his guilty plea is through a writ of habeas corpus.

Judgment affirmed.

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

       Wilson’s prior jury trial conviction for the same offense was reversed by this Court because there was no indication in the record that Wilson had knowingly and voluntarily waived his right to an attorney on the trial of the case. Wilson v. State, 230 Ga. App. 74 (495 SE2d 330) (1997). Upon remand, Wilson pled guilty to the offense.

       Wilson, who is proceeding pro se, entered his guilty plea in January 1998. He filed the instant “Motion For New Trial Out-of-Time Plea Withdrawal Motion to Dismiss Rule Nisi” in September 1999.

       Wilson has already filed a petition for a writ of habeas corpus, Wilson v. Chapman, Civil Action No. 99CV35198, in Baldwin County where he is incarcerated, which action is apparently still pending on the merits.


author: Phipps, Judge.

text:
    A00A2195.
    In the Interest of A. T., a child.
    (539 SE2d 540)
   Phipps, Judge.

A delinquency petition charged A. T. with possession of a controlled substance with intent to distribute.

A. T. and his guardian appeared at the detention hearing without counsel. At that hearing, the prosecutor announced the State’s intent to ask for a dispositional order providing for A. T.’s placement in restrictive custody, on grounds that the offense charged was a “designated felony act” under OCGA § 15-11-63 (a) (2) (B) (vii) by reason of A. T.’s three prior felony adjudications.

At the adjudication/disposition hearing, A. T. was represented by counsel. Defense counsel objected to placing the child in restrictive custody because the delinquency petition did not give notice that the State was invoking OCGA § 15-11-63. The trial court overruled the objection, but offered to grant the defense a continuance. After being informed that the defense did not want a continuance, the court placed A. T. in restrictive custody.

In this appeal, A. T. complains that he was denied due process of law as a result of the State’s failure to provide him with written notice via the delinquency petition that he was being charged with a designated felony act. We disagree and affirm.

To satisfy due process, a delinquency petition must contain sufficient factual details to inform the juvenile of the nature of the offense and must provide data adequate to enable the accused to prepare his defense. The petition in this case alleged that A. T. had committed the felony offense of possession of a controlled substance with intent to distribute in violation of OCGA § 16-13-30, thereby informing him of the nature of the offense with which he was charged. The petition further alleged that on or about January 13, 2000, A. T. had been found in possession of seven baggies of marijuana at or near 31st and Montgomery Streets in Savannah at approximately 2:00 p.m. This data was sufficient to enable A. T. to prepare his defense to the charge that he committed the act alleged.

OCGA § 15-11-63 mandates imposition of a sentence of restrictive custody if the offense which the juvenile has committed is a “designated felony act” as defined in subsection (a) and if certain elements set forth in subsection (c) or (d) necessitate such sentence. Under subsection (a) (2) (B) (vii), a designated felony generally consists of any act “which, if done by an adult, would be a felony, if the child committing the act has three times previously been adjudicated delinquent for acts which, if done by an adult, would have been felonies.”

OCGA § 15-11-63 (c) provides that in determining whether restrictive custody is required, the court shall consider:

(1) The needs and best interests of the child; (2) The record and background of the child; (3) The nature and circumstances of the offense, including whether any injury involved was inflicted by the child or another participant; (4) The need for protection of the community; and (5) The age and physical condition of the victim.

In our opinion, due process does not require that the juvenile be informed either in writing or in the delinquency petition that he is being charged with a designated felony act which may require that he be sentenced to restrictive custody. OCGA § 15-11-63 contains no notice requirement. In contrast, OCGA § 17-10-2 (a) does require that an adult criminal offender be given pretrial notice of evidence to be admitted in aggravation of punishment. But it does not even mandate written notice. The purpose of the notice requirement of OCGA § 17-10-2 is to give the convicted defendant enough time to prepare a defense for sentencing. In this case, the trial court offered to provide defense counsel with sufficient time to do this by granting a continuance. Therefore, A. T.’s due process rights were not violated.

Decided September 15, 2000.

John D. Gatch, Richard M. Darden, for appellant.

Spencer Lawton, Jr., District Attorney, Jeffrey S. Hendrix, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson, C. J., and Smith, P. J., concur.

         T.L.T. v. State of Ga., 133 Ga. App. 895, 897 (1) (212 SE2d 650) (1975).

        In the Interest of C.T, 197 Ga. App. 300, 302-303 (2), (3) (398 SE2d 286) (1990).

        Mullinax v. State, 242 Ga. App. 561, 563 (2) (530 SE2d 255) (2000).

       See Wynn v. State, 228 Ga. App. 124, 128 (3) (a) (491 SE2d 149) (1997); Queen v. State, 131 Ga. App. 370, 374 (4) (205 SE2d 921) (1974).


author: Andrews, Presiding Judge.

text:
    A00A1356.
    OLIVER v. THE STATE.
    (538 SE2d 837)
   Andrews, Presiding Judge.

Harold James Oliver, convicted of misdemeanor shoplifting and sentenced as a recidivist, appeals from the trial court’s denial of his motion for new trial, contending that the public defender appointed for him prior to trial was ineffective and that he did not validly waive his right to appointed trial counsel.

Viewed in a light most favorable to the verdict, the evidence was that, on September 10, 1997, around 11:00 a.m., Officer Singleton was approached by taxicab driver Babajide who said he had driven Oliver to two different hardware stores and believed that Oliver was shoplifting. After Oliver had entered the Handy Ace Hardware the second time, Babajide looked inside Oliver’s backpack and noticed a number of hammers and other tools. Babajide put the backpack on the curb and went to look for an officer.

Officer Singleton went to the store and spoke to floor manager Shiver who saw a man matching Oliver’s description come into the store with a backpack and go into the tool department. The man would not let anyone assist him, and Shiver saw him “fidgeting” with hammers. The Handy Ace Hardware store had one of the largest selections of hammers in the hardware business. Shiver asked Ivill, who was in charge of restocking the tool department and had just finished making up a reorder after looking over his inventory, if there were any hammers missing. Ivill rechecked the area and discovered six masonry hammers missing. Shiver checked with the cashiers and found no hammers had been sold that morning.

Officer Singleton thereafter apprehended Oliver on foot in the vicinity of the Handy Ace Hardware store. The backpack Oliver was carrying contained eight hammers, three tape measures, and three sets of drill bits. Oliver was identified as the man earlier seen in the store. Upon being interviewed by Detective Ford, Oliver refused to sign his Miranda warning form and was not further questioned. Oliver did, however, make the spontaneous statement to Detective Ford that “[y]ou all don’t have anything on me, this is not a felony.” He later made the same statement at his preliminary hearing.

Evidence of three similar transactions was introduced. Ragsdale, owner of Ragsdale Hardware in Marietta, testified that he had seen Oliver in his store several times and suspected him of shoplifting. On May 24, 1995, he went to his elevated office and observed Oliver putting several hammers down the front of his pants. Ragsdale confronted Oliver on the floor, and Oliver returned one hammer to him. Asked about the others, Oliver ran and was apprehended by Rags-dale and one of his employees. Three or four other hammers fell out of Oliver’s pants. The car waiting outside for Oliver contained hammers, tape measures, saw blades, and other tools. Oliver gave the name “Harold Owens” when arrested for this offense.

On September 28, 1995, Dewhurst, owner of two hardware stores on Mount Vernon Parkway and Jimmy Carter Boulevard, was notified of shoplifting at his Mount Vernon store. Dewhurst followed the shoplifter, later identified as Oliver, to a car and confronted him. Oliver did not return the tools, so Dewhurst stood in front of the car and was carried on the hood for a short distance. He then followed Oliver in his van until Oliver stopped his car, told Dewhurst to leave him alone, and threw several hammers on the ground. Dewhurst was unable to summon police before Oliver fled. The next week, in his other store, Dewhurst saw Oliver, whom he recognized from the prior encounter, walk into the store and proceed to the hammer aisle. Oliver then saw Dewhurst and attempted to leave. Dewhurst apprehended Oliver who was then arrested. Oliver gave the name Harold Williams on this arrest.

1. Regarding counsel, Oliver does not dispute that he was appointed a public defender, Peterson, to represent him after his arrest. He contends, however, that she was ineffective in her pretrial representation of him.

In order to prevail on a claim of ineffective assistance of counsel [Oliver] must show that his counsel’s performance was deficient and that the deficient performance was prejudicial to his defense. Smith v. Francis, 253 Ga. 782, 783 (325 SE2d 362) (1985) (citing Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984)). To meet the first prong of this test, [Oliver] must overcome the strong presumption that counsel’s performance fell within a wide range of reasonable professional conduct and that counsel’s decisions were made in the exercise of reasonable professional judgment. The reasonableness of counsel’s conduct is examined from counsel’s perspective at the time of trial and under the circumstances of the case. The second prong requires [Oliver] to show there is a reasonable probability that, absent counsel’s unprofessional errors, the result of the trial would have been different. (Citations and punctuation omitted.) Brown v. State, 268 Ga. 354, 357 (4) (490 SE2d 75) (1997).

Reynolds v. State, 231 Ga. App. 33, 37-38 (6) (497 SE2d 580) (1998).

We must affirm the trial court’s finding that a defendant has not been denied effective assistance of counsel unless that finding is clearly erroneous. Mitchell v. State, 242 Ga. App. 177, 179 (4) (529 SE2d 169) (2000); Hearst v. State, 212 Ga. App. 492, 494 (2) (441 SE2d 914) (1994).

At the motion for new trial hearing and here, the sole basis for Oliver’s contention that Peterson’s pretrial representation was ineffective was his contention that she failed to locate the woman he conténded sold him the hammers “wholesale” at a flea market. Oliver testified that he purchased the hammers at a flea market located somewhere between Jimmy Carter Boulevard and Pleasantdale Road from a woman he could not name. Peterson, however, testified that Oliver told her he had the bag of tools from before, but she had no recollection of any mention of the flea market, nor did her file notes reflect any such information.

The trial court’s conclusion that Peterson did not have this information is not clearly erroneous, and there has been no showing of ineffective assistance.

Further, Oliver has failed to show how the absence of this unknown witness prejudiced his defense, even assuming that counsel’s performance was somehow deficient in not locating the witness. Mitchell v. State, supra at 182 (4) (c), (d); Wallace v. State, 228 Ga. App. 686, 690 (4) (492 SE2d 595) (1997).

2. Oliver also contends the trial court erred in denying his motion for new trial on the ground that he did not voluntarily and intelligently waive his right to counsel.

Peterson began representing Oliver after his indictment. Oliver, an experienced criminal defendant who had sixteen misdemeanor and five felony prior convictions, filed a pro se speedy trial demand before his arraignment. Brooks v. State, 243 Ga. App. 246, 247 (523 SE2d 763) (2000) (defendant with two prior felony and one misdemeanor convictions found “experienced” in the legal process).

During a pretrial hearing on December 15, 1997, Oliver advised the court that he was dissatisfied with Peterson and “if she can’t be ready when I get ready, I will represent myself. That’s it.” Peterson had told Oliver that, if she were to continue representing him, the speedy trial demand would be withdrawn. He refused to withdraw it, and she withdrew from the case. The court advised Oliver he could represent himself or hire an attorney. Peterson testified at the motion for new trial hearing that she warned Oliver at that time of the dangers of self-representation.

At a later court appearance, Oliver was told by Judge Weeks that he could have an attorney, but it would be either Peterson or another public defender present in court. At that time, Peterson was reappointed for Oliver, and he agreed to her representation. Peterson filed a motion to suppress on January 12, 1998, but, when the case was called for trial on January 13, Oliver again complained about Peterson’s representation.

The court fully advised Oliver of the dangers of proceeding pro se and asked him if he wished Peterson to continue representing him. Oliver stated that he knew Peterson was a competent attorney, but he felt “she is reluctant to go all out and prepare me for a trial. ... I know more about the case than she do. And if I’m going to go down, I will at least go down with my rights and with some kind of decency. ... I am ready for trial, your honor.”

Applying the standard of Johnson v. Zerbst, 304 U. S. 458 (58 SC 1019, 82 LE 1461) (1938), the trial court and this Court must determine if Oliver intentionally relinquished or abandoned a known right or privilege. That determination must depend upon the particular facts and circumstances surrounding the case, “ ‘including the background, experience, and conduct of the accused.’ Johnson v. Zerbst, supra at 464.” Clarke v. Zant, 247 Ga. 194, 196 (275 SE2d 49) (1981).

Decided August 31, 2000

Reconsideration dismissed September 18,2000

Harold S. Gulliver, for appellant.

Harold J. Oliver, pro se.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Assistant District Attorney, for appellee.

As has been repeatedly held, an accused is entitled only to “reasonably effective assistance of counsel, not counsel of his own choosing. . . . [Cit.]” Bryant v. State, 268 Ga. 616, 617 (2) (491 SE2d 320) (1997). A request by an accused to replace one appointed counsel with another addresses itself to the sound discretion of the trial court. Reynolds, supra at 36 (4). Here, because Oliver did not contest the competence of Peterson, only her preparedness, as discussed supra in Division 1, there was no error in the trial court’s requiring him to either proceed to trial with Peterson or represent himself. Moody v. State, 244 Ga. App. 214, 217 (534 SE2d 912) (2000); Reynolds, supra; Jefferson v. State, 209 Ga. App. 859, 861 (1) (434 SE2d 814) (1993).

Also, we find the warnings given by the trial court regarding proceeding pro se more than adequate, particularly considering Oliver’s experience. Clarke, supra.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

       This testimony was admitted as res gestae. Babajide was out of the country at the time of trial, which could not be delayed because of Oliver’s pro se demand for speedy trial.

       Oliver has failed to show that there was a reasonable probability the jury would have reached a different verdict, absent the error of counsel. Gross v. State, 262 Ga. 232, 233 (1) (416 SE2d 284) (1992).


author: Barnes, Judge.

text:
    A00A1558.
    ROACH v. C. L. WIGINGTON ENTERPRISES, INC.
    (539 SE2d 543)
   Barnes, Judge.

Douglas Roach appeals the trial court’s grant of summary judgment to C. L. Wigington Enterprises, Inc. d/b/a General Supply Company (“GSC”) on its suit against Roach on a personal guaranty. Finding no error, we affirm.

First Custom Builders signed two promissory notes in favor of GSC on September 22, 1997, one for $16,503.64, and one for $15,843.28. Each promissory note was two pages long, signed by First Custom Builders’ general partner on each second page. The second half of the second pages of each note contained a “guaranty of payment” immediately following the general partner’s signature, and these guaranties were signed by Roach and First Custom Builders’ general partner.

GSC sued Roach on the personal guaranties, seeking the entire $16,503.64 on one note and $1,652.75 on the second note, plus ten percent interest as the notes provided. GSC moved for summary judgment, and the trial court granted the motion, holding that “the ‘Guaranty of Payment’ incorporated the terms of the ‘Promissory Note’ by reference as ‘set forth above.’ ”

Roach argues on appeal that the guaranties are invalid because they fail to identify the principal debtor. A promise to answer for the debt of another must be in writing and signed by the party making the guaranty. OCGA § 13-5-30 (2). To satisfy the Statute of Frauds, the guaranty must identify the debt, the promisee and the promisor. Schroeder v. Hunter Douglas, Inc., 172 Ga. App. 897, 898 (2) (324 SE2d 746) (1984).

It is not necessary that the guaranty agreement contain in itself all of the requirements which the Statute of Frauds embraces. If the writing, therefore, refer to any other writing which can be identified completely by this reference, without the aid of parol evidence, then the two or more writings may constitute a compliance with the statute.

(Punctuation omitted.) Id. at 898-899 (2).

In the guaranties at issue here, Roach “unconditionally guarantee [d] the payment of the Promissory Note set forth above. . . .” The promissory note specified that the “undersigned,” identified as “First Custom Builders” above the signature line, promised to pay specified sums to GSC.

[T]he statute of frauds does not require that all the terms of the contract should be agreed to or written down at one and the same time, nor on one piece of paper; but where the memorandum or the bargain is found on separate pieces of paper, and where these papers contain the whole bargain, they form together such a memorandum as will satisfy the statute, provided the contents of the signed paper make such references to the other written paper or papers as to enable the court to construe the whole of them together as containing all the terms of the bargain.

(Punctuation omitted.) Charles S. Martin Distrib. Co. v. Bernhardt Furniture Co., 213 Ga. App. 481, 482 (1) (445 SE2d 297) (1994). Unlike the situations in Sysco Food Svcs. v. Coleman, 227 Ga. App. 460, 461 (489 SE2d 568) (1997), and Ellis v. Curtis-Toledo, Inc., 204 Ga. App. 704, 705 (2) (420 SE2d 756) (1992), the writing at issue here did not leave blank the name of the principal debtor, but specifically incorporated the terms of the promissory note which identified First Custom Builders as the debtor. The trial court did not err in granting summary judgment to GSC.

Decided September 18, 2000.

Charles G. Harbin, Jr., for appellant.

Jacket, Rainey, Marsh & Busch, James C. Busch, Richard A. Hull, for appellee.

Judgment affirmed.

Blackburn, P. J., and Eldridge, J., concur.


text:
    A00A1630.
    JENKINS v. THE STATE.
    (539 SE2d 542)
   Barnes, Judge.

James Jenkins appeals his convictions for rape, two counts of aggravated child molestation, child cruelty, child molestation, two counts of enticing a child, aggravated sodomy, and incest. The victims in the case are his two natural daughters. Jenkins contends the trial court erred by (1) denying his motion for a mistrial, (2) refusing to allow him to question the prior sexual history of one of the victims, (3) prohibiting him from presenting evidence of an alleged prior false allegation of rape by one of the victims, and (4) not entering a sentence on two of the counts before he began serving his sentence. We find no reversible error and affirm.

Viewed most favorably in support of the verdict, the evidence shows that both victims testified that Jenkins forced them to have sexual relations with him, and one victim testified that he forced her to put her mouth on his penis. Further, both girls testified that Jenkins gave them alcohol and drugs.

1. Jenkins’s motion for a mistrial was based on a witness’s apparently inadvertent testimony that one of the victims told him Jenkins’s brother was in jail for child molestation. Whether to grant a mistrial is a matter within the sound discretion of the trial court, and its ruling will not be disturbed absent an abuse of discretion. Martin v. State, 193 Ga. App. 581, 584 (2) (388 SE2d 420) (1989). Under the circumstances, we find no abuse of discretion.

When prejudicial matter is placed before the jury in a criminal case, the trial judge must decide whether a mistrial must be granted as the only corrective measure or whether the prejudicial effect can be corrected by withdrawing the testimony from the consideration of the jury under proper instructions. Here, the trial judge acted immediately, ruled out the offensive testimony, and properly instructed the jury not to consider the testimony in its deliberations. Under the facts of this case, we cannot say that this amounted to an abuse of discretion.

Decided September 18, 2000.

Melnick & Beall, John A. Beall IV, for appellant.

William T. McBroom III, District Attorney, James E. Hardin, Assistant District Attorney, for appellee.

(Citations omitted.) Stanley v. State, 250 Ga. 3, 4 (2) (295 SE2d 315) (1982). Additionally, the trial court questioned the jurors on whether they could base their verdict on the proper evidence and disregard this testimony, and each individually responded that they could.

2. The trial court did not err by refusing to allow testimony about the prior sexual history of one of the victims. OCGA § 24-2-3; Chastain v. State, 180 Ga. App. 312-313 (2) (349 SE2d 6) (1986). The case of Fetterolf v. State, 223 Ga. App. 744, 747-748 (7) (478 SE2d 889) (1996), relied upon by Jenkins, does not require a different result. Because the victim did not personally testify that she was a virgin, information about her sexual history could not be used to impeach the witness’s testimony. Id. at 748 (7).

3. Because Jenkins acquiesced in the trial court’s ruling regarding the exclusion of an allegedly false prior accusation of rape of one of the victims, this issue is not properly before this court. After the court excluded the testimony, Jenkins replied, “Okay. Then I’m going to just stop.” “No matter how erroneous a ruling of a trial court might be, a litigant cannot submit to a ruling or acquiesce in the holding, and then complain of the same on appeal. He must stand his ground. Acquiescence deprives him of the right to complain further. (Cit.)” Whisnant v. State, 178 Ga. App. 742, 744 (2) (344 SE2d 536) (1986).

4. Although the trial court’s oral announcement of the sentence failed to include sentences on the incest count and one of the counts of aggravated sodomy, the written sentence includes the sentence imposed on all charges. There was no error. The written sentence, not the oral declaration of the sentence, is the sentence of the court. Paul v. State, 170 Ga. App. 746 (3) (318 SE2d 200) (1984). As no evidence shows that Jenkins started serving the sentence before the written sentence was entered, there is no error. Id.

Judgment affirmed.

Blackburn, P. J., and Eldridge, J., concur.