text:
    A02A0533.
    BAKER et al. v. CAMPBELL et al.
    (565 SE2d 855)
   Eldridge, Judge.

Richard S. Baker and Carolyn Baker contracted with J. William Campbell, Jr., individually and d/b/a Professional Contractors, Inc., to build a retirement home for them in Gilmer County. Gilmer County Bank made the construction loan to the Bakers for $225,000. Campbell and PCI went bankrupt prior to the completion of the house. Baker sued the Bank for fraud; he claimed that the Bank misled him into authorizing a draw on the construction loan at the Bank’s request for payment to PCI’s account with the Bank to pay suppliers and subcontractors. Instead, the Bank credited the $50,000 into the accounts of PCI and Beacon Sports Center, Inc., another business of Campbell’s, and immediately attached the funds credited to such accounts to satisfy PCI’s and Beacon’s overdrafts of such amount of such separate corporations without paying the suppliers and subcontractors as represented. The Bank moved for summary judgment, which the trial court granted. We affirm in part and reverse in part.

The Bank provided separate corporate accounts for PCI and for Beacon, both separate corporate entities controlled by Campbell. However, there was no evidence in the record that Beacon was in anyway involved in or otherwise a party to performing the construction contract for the Bakers or was authorized by the Bakers to receive draws on the construction loan. Initially, PCI was required to make a draw request to Baker, who in turn authorized the Bank to pay PCI such sum; however, Baker was frequently out of state, which caused delays. Therefore, Baker and the Bank agreed to pay directly either Campbell or PCI from invoices and a draw request made by PCI, which required Baker’s final approval. PCI was to pay the suppliers and subcontractors first from the draw payments before paying sums for its own use.

In November 1998, PCI made a request of Baker for a $90,000 payment which Baker authorized the Bank to make; however, the Bank refused to honor the draw, because the construction had not proceeded sufficiently to justify such a draw. Finally, the Bank approved a draw of only $20,000 after inspecting the work but continued to refuse other draws as requested by PCI and made with Baker’s authorization. Subsequently, Baker obtained a separate construction loan from another lender to replace the Bank, because the Bank’s restriction of the draws had delayed the construction.

In late 1998, the Bank’s loan officer had numerous discussions with Campbell regarding the overdrawn business accounts of both PCI in the amount of $17,000 and Beacon in the amount of $33,000, which combined overdrafts totaled approximately $50,000. In hearsay, the loan officer claimed by affidavit and deposition that, at sometime prior to Campbell’s injury and prior to the final disbursement of the $50,000 on February 1, 1999, Campbell instructed the Bank to place $33,000 from any draw in the account of Beacon and $17,000 into the PCI account; however, after Campbell was injured on January 25, the loan officer never spoke to Campbell prior to obtaining Baker’s authorization to make such draw. The Bank was aware that Campbell and his separate corporate entities, PCI and Beacon, were in financial trouble and that there were unpaid suppliers and subcontractors on the Baker house project so that it refused further draws. Normally, the Bank allowed no additional draws without a contemporaneous inspection for progress, but it suddenly departed from this practice after Campbell’s injury to allow the draw of $50,000.

On January 25, 1999, Campbell was disabled in a car wreck so that he could no longer conduct business. The Bank was aware of Campbell’s injuries prior to asking Baker to renew his request for the $50,000 draw but never told Baker of Campbell’s injuries and incapacity. On January 30, 1999, the president of the Bank ordered the loan officer to contact Baker in New York on a Saturday where he was on business and have him authorize a request for an additional draw of $50,000 to pay suppliers and subcontractors to be made to PCI’s account, which the Bank had consistently refused previously to make; also the president and loan officer discussed at that time between themselves the overdrafts with the Bank without revealing this information to Baker. Baker told the loan officer that he would authorize the draw only if such sums were used to satisfy outstanding supplier invoices and unpaid subcontractors on the job, and the loan officer assured Baker that such was the purpose for the draw and that such funds would be credited to the account of PCI for that purpose. The loan officer never revealed to Baker either prior to or after Baker approved the $50,000 draw that $33,000 was to be deposited to the Beacon account and that only $17,000 would be deposited to the PCI account. Then, the loan officer made the draw even though the house had not been inspected since 1998. The loan officer had Baker execute a waiver and release of lien form, which Campbell normally signed, because Campbell was physically unable to execute the forms. Prior to January 30, 1999, the Bank had in place on the PCI and Beacon accounts holds to catch any funds credited or deposited to such accounts. On February 1,1999, the Bank credited the $50,000 draw to the accounts of both PCI in the amount of $17,000 and Beacon in the amount of $33,000. The loan officer never told Baker that he would credit $33,000 to the Beacon account. Immediately upon crediting these accounts, the Bank’s hold attached such sums to satisfy the still outstanding overdrafts on such accounts so that now there were no funds to pay the suppliers and subcontractors in either account. Therefore, the Bakers had to satisfy the Bank’s construction loan with another construction loan from a different lender which paid off the construction loan with the Bank, the unpaid construction liens of $50,000, and paid for the completion of construction.

1. The Bakers contend that the trial court erred in granting the summary judgment. We agree in part and disagree in part.

(a) From the record, Beacon had not been approved by or authorized by the Bakers to receive any draws on the construction loan at any time. In creating the construction loan and draws, neither the Bank nor PCI included Beacon among the authorized draw recipients. In obtaining Baker’s request and authorization for the draw of $50,000, the Bank never obtained Baker’s authorization to credit any of such funds to the Beacon account with the Bank. The Bank admitted that it had authority to disburse draws directly to Campbell, individually, or to PCI, but had no authority under the construction loan to pay such funds to a third party without the authorization of Baker. Thus, the Bank had no authority to divert any of the $50,000 draw on the construction loan for payment to the Beacon account. The Bank knew that, under the written terms of the construction loan, draws were to be paid directly to Campbell, individually, or to PCI; Beacon was a legal entity not a party to the construction contract or construction loan. The only alleged authorization to divert the funds to the Beacon account came from the loan officer’s statement that Campbell told him to do it; however, there was no evidence that Campbell had such authority, and the evidence showed only Baker had such authority to divert the funds. Further, such alleged authorization occurred prior to Campbell’s injury, because the loan officer never talked to Campbell after his injury and the diversion of the funds to the Beacon account. Therefore, the loan officer’s representation that the authorization by Baker for the draw against the construction loan of $50,000 would cause the Bank to credit PCI’s account with such funds to pay suppliers and subcontractors could be considered by a jury to be a material misstatement of present fact and not a promise to be performed in the future, because a portion of such draw was unauthorizedly diverted to the Beacon account where such funds would be immediately attached by the Bank to satisfy the outstanding overdraft in such account. Thus, the statement that all the draw would go into PCI’s account constituted a present statement of fact to the extent that a jury could find that the present fact was partially true that some part of the draw was paid to the PCI account and was partially false that some funds were diverted to the Beacon account by the Bank. Such facts create a material issue of fact for the jury’s determination as to whether the statement was made fraudulently with scienter, to intentionally mislead the Bakers to their detriment, and to cause them harm by having them obligated to the Bank for such $50,000 on their construction loan, which was not used for their benefit but for the Bank’s benefit instead.

Thus, in the record on the motion, whether the Bank had authority to divert funds to the Beacon account is in dispute between Baker’s denial of the authority and the alleged disputed authority of Campbell to divert the funds, which creates a jury question. However, as to the fraud and deceit count, Baker testified that the Bank misled him by not revealing that it would divert part of the funds to the Beacon account and telling him that all the funds would be paid into the PCI account to pay debts. Therefore, it is irrelevant whether or not the Bank did or did not have authority to divert the funds, because the issue here is fraud and deceit.

Further, the Bank’s motive in diverting the funds does not explain why it told Baker that the funds would be deposited to the PCI account to pay suppliers and subcontractors when the Bank presently intended to divert $33,000 to the Beacon account to cover the existing overdraft. Such alleged hearsay statement of Campbell neither proves that Campbell made it, that the statement made by Campbell was true, nor that, if true, Campbell had authority to order the funds diverted without the Bakers’ prior knowledge and approval. The essential elements of fraud and deceit are: (1) that the defendant made the representation; (2) that at the time he made the representation he knew the representation was false; (3) that he made the representation with the intention and purpose of deceiving the plaintiff to his detriment; (4) that the plaintiff reasonably relied upon such representations; and (5) that the plaintiff sustained loss and damages as a proximate result of such representation. McLen-don v. Galloway, 216 Ga. 261, 263 (2) (116 SE2d 208) (1960).

As to the representations that the draw would be credited to PCI’s account but was diverted instead to the Beacon account, this was not a future promise but a present misrepresentation of fact. While the promise to use the draw to pay suppliers and subcontractors might be considered to be a future promise by PCI or by the Bank, the misrepresentation that the funds would be paid to PCI’s account, and the immediate diversion of funds into the Beacon account instead of all paid into the PCI account, was a present misrepresentation of fact by the Bank and not a future promise that it never intended to perform. Goodlett v. Ray Label Corp., 171 Ga. App. 377, 378-379 (1) (319 SE2d 533) (1984); see also Middlebrooks v. Lonas, 246 Ga. 720, 721 (2) (272 SE2d 687) (1980). The Bank’s actions in diverting only sufficient sums to satisfy the overdraft of each account; in creating the attachment on each account; in failing to advise of the overdrafts, preexisting attachment, Campbell’s alleged instructions, and Campbell’s injury; in urgently contacting Baker in New York on a Saturday; and in having Baker execute the lien waiver forms are all facts under the totality of the circumstances giving rise to the inference of fraud. Hines v. Good Housekeeping Shop, 161 Ga. App. 318, 319 (3) (291 SE2d 238) (1982). Thus, a jury issue was presented, requiring reversal. Blanchard v. West, 115 Ga. App. 814, 815 (2) (156 SE2d 164) (1967); Norris v. Hart, 74 Ga. App. 444, 446 (40 SE2d 96) (1946).

The grant of summary judgment as to fraud regarding the diversion of $33,000 to the Beacon account is reversed, because the Bank violated its duty to pay such funds either to Campbell directly or to PCI as it had represented to the Bakers that it would do. Through what a jury could find to be fraud, the misrepresentation by the Bank led Baker to consent to the authorization of the payment of such funds to PCI, which the Bank then diverted to the Beacon account. Such conduct occurred within the internal operations of the Bank outside the supervision and control of Baker for the Bank’s own benefit. Therefore, a jury could find that the Bank failed in its duty of ordinary care to insure that the labor and material claims were paid from such funds because the Bank diverted internally such funds into an account where it had the right to attach Beacon’s funds and because the only way that the Bakers could protect themselves from the Bank was to receive the draw directly and pay the lienholders directly, which would have been a departure from the construction loan agreement.

(b) Under the construction loan agreement, the Bank had a duty to pay upon Baker’s request, a draw directly to Campbell, individually, or to.PCI and only to such individuals and entities. On January 31, 1999, the payment on Baker’s authorization and instruction of $17,000 to PCI’s account complied with such express terms of the loan agreement. Therefore, the Bank had no liability to the Bakers for what it had a legal right to do under the Bakers’ draw authorization, which was to attach the funds deposited to the PCI account to satisfy the preexisting overdrafts owed to the Bank in such account. OCGA §§ 11-4-215 (f) (formerly OCGA § 11-4-213 (5)); 11-4-401 (a); Nat. Bank of Ga. v. Weiner, 180 Ga. App. 61, 63 (348 SE2d 492) (1986); Cohutta Banking Co. v. Home Fed. Sav. & Loan Assn. &c., 188 Ga. App. 317 (372 SE2d 689) (1988); Fed. Deposit Ins. Corp. v. West, 244 Ga. 396, 399 (260 SE2d 89) (1979).

Moreover, this application of the deposit [(to cover the overdraft)] was a measure which the bank had a right to take. OCGA § [11-4-215 (f)]. The deposit of the customer simply constituted a discharge of the customer’s debt. The law specifically provides the bank with a right to charge back or obtain refund, OCGA § 11-4-212 (1), (3), (4), and (5), and to apply a deposit to an obligation of the customer [’s debt].

Nat. Bank of Ga. v. Weiner, supra. Thus, the Bank’s actions constituted a legal practice in using the Bakers’ credit to deposit a loan draw to the builder’s overdrawn account to satisfy the debt to the Bank of the builder caused from overdrafts, even though they were not shown by competent evidence to be related to such home construction.

The Bank induced Baker to draw against his construction loan and to credit such funds to PCI’s account so that such funds became subject to attachment to satisfy the outstanding overdraft on such account, and Baker believed that such funds would be used to satisfy outstanding suppliers’ and subcontractors’ liens. Such conduct by the Bank was neither a breach of contract nor tortious. First Ga. Bank v. Webster, 168 Ga. App. 307, 309 (2) (308 SE2d 579) (1983). The Bank as lender and the Bakers as borrowers had no fiduciary relationship and dealt at arm’s length. Pardue v. Bankers First Fed. Sav. &c. Assn., 175 Ga. App. 814, 815 (334 SE2d 926) (1985).

The primary duty of a lending bank is to protect the assets of its members or depositors and not to protect the assets of its borrowers. Lothridge v. First Nat. Bank &c., 217 Ga. App. 711, 715 (5) (458 SE2d 887) (1995); Butts v. Atlanta Fed. Sav. &c. Assn., 152 Ga. App. 40, 42-43 (262 SE2d 230) (1979). The construction lender has no independent duty either in tort or contract to the borrower to protect him from problems with the builder’s work, construction defects, or liens for labor and materials. Constr. Lender v. Sutter, 228 Ga. App. 405, 409-410 (2) (491 SE2d 853) (1997); Butts v. Atlanta Fed. Sav. &c. Assn., supra at 42. It is the borrower’s responsibility to insure that payments for labor and materials are made from any draw, and such duty is not shifted to the lender from the loan agreement alone, absent specific contractual obligations to do so for the benefit of the borrower rather than the lender’s own protection. Peterson v. First Clayton Bank &c. Co., 214 Ga. App. 94, 99-100 (1) (447 SE2d 63) (1994). When the lender agrees to pay the builder directly by a draw, the homeowner still has the duty to insure that labor and materials are paid; however, the lender may be liable for unauthorized payments outside the loan agreement’s express terms. First Fed. Sav. Bank &c. v. Fretthold, 195 Ga. App. 482, 484-485 (394 SE2d 128) (1990). However, the lender can expressly agree by written contract to undertake the obligations of the borrower to monitor payments for labor and materials, which would obligate it to do so. Harden v. Akridge, 193 Ga. App. 736 (389 SE2d 6) (1989). Likewise, the lender by express written contractual obligations in the construction loan agreement could obligate itself to perform construction inspections not only for its benefits but also for the benefit of the borrower. Butts v. Atlanta Fed. Sav. &c. Assn., supra. However, such contractual obligations did not exist in this case. Further, in this case, the foregoing cases have no legal or factual application, because in those cases the builder, not the lender, was the entity that caused the construction funds to be used for a purpose other than payment of suppliers or subcontractors; also in this case, the builder did not fail, refuse, or divert to its own use the draw that was supposed to pay the suppliers and subcontractors with such funds. The Bank legally, as a matter of electronic bookkeeping, seized the money as soon as it credited the funds to the builder’s account after first crediting and debiting such amount to the homeowner’s construction account so that the Bakers became obligated to pay such sums even though the funds were never used for the purpose under the construction loan. OCGA §§ 11-4-215 (f); 11-4-401. Thus, the borrower did not fail to insure that the builder paid the draw proceeds to satisfy liens of suppliers or subcontractors, because the builder never gained actual or constructive control of such funds. The Bakers failed to protect themselves from their own lender as the creditor of their builder. The Bank created its money trap after shooing the Bakers into it, which caught the draw funds in the nanosecond that the Bank electronically credited such draw to the PCI account ahead of all other possible creditors and which draw went to immediately satisfy the pre-existing $17,000 overdraft that the Bank allowed PCI to create in such account, knowing that the Bank was protected by its own scheme.

Decided May 23, 2002

Ray & McKinney, Robert M. Ray, Jr., for appellants.

The Bakers’ failure of reasonable care, if any, was to protect themselves from the Bank, their lender, in the terms and conditions of the construction loan that was negotiated at arm’s length long before this seizure of the draw. In the construction loan, the Bakers should have required all draws to have been paid into a trust or escrow account for the builder that would require draws to be paid for labor and materials free from the reach of all creditors, either the Bank, itself, or others. However, such escrow account would not have protected the Bakers from the conduct of either PCI or Campbell in failing to pay, nor would it create liability for the Bank for failing to supervise the builder’s distribution from an escrow account. Nat. Bank of Ga. v. Weiner, supra at 65. Therefore, the Bakers could have created their own construction escrow account and issued checks jointly to the builder/supplier, to the builder/subcontractor, or to the builder, which would have been the only way that they could protect themselves from the lender, builder, and lienholders at the same time.

The Bank was entitled to summary judgment as to the $17,000 paid into the PCI account, which it legally seized, because it violated no legal duty in this transaction; therefore, we affirm.

(c) Since the claim of actual fraud constitutes an intentional tort to cause harm under OCGA § 51-12-5.1 (b), then such is not a contract claim, allowing the recovery of punitive damages in an amount subject only to constitutional due process limitations for the aggravated circumstances to penalize, punish, and deter the Bank from future similar conduct. Speir v. Krieger, 235 Ga. App. 392, 402 (5) (509 SE2d 684) (1998). Thus, a jury issue exists, because the record contains facts from which a jury could find by clear and convincing evidence that punitive damages are authorized. McDaniel v. Elliott, 269 Ga. 262, 264-265 (2) (497 SE2d 786) (1998). Therefore, the grant of summary judgment as to this issue is also reversed.

2. The Bakers contend that the trial court erred in determining that no duty existed between the Bank and the Bakers. Division 1 controls this enumeration of error.

Judgment affirmed in part and reversed in part.

Smith, P. J., and Ellington, J., concur.

Thompson, O’Brien, Kemp & Nasuti, Paul J. Morochnik, Bret T. Thrasher, for appellees.


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A02A0550.
    SEWELL SALES & SERVICE, INC. v. TRAVELERS INDEMNITY OF AMERICA.
    (566 SE2d 346)
   Pope, Presiding Judge.

A fire caused by faulty wiring near a dishwasher damaged a condominium and some of the owner’s personal property. The two insurance companies who compensated the condominium association and the condominium owner for the damages brought suit against Sewell Sales & Service, Inc. alleging that its agent’s negligent installation of the dishwasher caused the fire. Sewell sought summary judgment for the claims against it, and we granted Sewell’s application for interlocutory appeal of the trial court’s denial of that motion. We partially reverse the trial court’s decision.

For the purpose of summary judgment, the facts are mostly undisputed. On September 13, 1991, Doris Mundy purchased a new dishwasher to replace an existing one, and Joe Brand, then a Sewell employee, installed it that day. He connected the dishwasher to the condominium’s branch wiring by properly using a wire nut twist inside the dishwasher’s junction box. But the first 18 inches of wire running from the dishwasher were an extension of the main wiring in the condominium. And, the connection between the 18-inch segment and the main wiring was improperly made; the wires were “crimped” together outside of a junction box. The parties’ experts agree that the fire was caused by that faulty connection.

Brand denies that he added the 18-inch segment and denies that he saw the connection between that segment and the main wiring or noticed the bad connection while he was installing the appliance. He also states that if he had seen the connection in question, he would have “replaced the crimp sleeve connectors with wire units and would have used a junction box.”

On September 12, 1995, almost exactly four years after the dishwasher was installed, a fire caused by the faulty wiring caused $160,000 damage to some structural elements of the building owned by the condominium association, and $60,000 damage to both the real property and personal property of Mundy. Travelers of Illinois as subrogee for Mundy and Travelers of America as subrogee to the condominium association both filed suit against Sewell on February 9, 1999, over seven years after Brand installed the dishwasher. The two cases were consolidated in the trial court.

1. Sewell claims the trial court improperly denied its motion for summary judgment because there is no evidence that Brand was negligent. Sewell relies on Brand’s denial, in his affidavit, that he added the 18-inch segment or that he saw the improper connection of that segment to the main wiring. The insurance companies rely on the inference that “it is reasonable to infer that people do not re-wire properly working dishwashers,” and that therefore, “the improperly crimped connection was probably made by the person who installed the dishwasher (i.e., Sewell’s employee).” But the insurance companies have no other evidence that Brand installed the 18-inch segment. Their expert also opined that based on his review of the dishwasher, the 18-inch segment, and pictures from the fire, even if Brand did not install the 18-inch segment, a qualified electrician should have noticed the faulty wiring and replaced it.

Where direct and positive testimony is presented on an issue, the opposing party must show some other fact which contradicts the testimony. If this other fact is direct evidence, that is sufficient to allow the case to go to the jury; if the other fact is circumstantial evidence, it must be inconsistent with the defendant’s evidence, or if consistent, it must demand a finding of fact on the issue in favor of the plaintiff.

(Citations and punctuation omitted.) Kappa Sigma Intl. Fraternity v. Tootle, 221 Ga. App. 890, 892 (1) (473 SE2d 213) (1996). The inference relied on by the insurance companies to assert that Brand must have added the 18-inch segment applies equally well to the person who installed the original dishwasher in the condominium. Therefore, it is consistent with Brand’s testimony. And, it does not demand a finding of fact that Brand added the segment. Therefore, Brand’s direct and positive testimony that he did not add the segment is unrebutted. Partial summary judgment should have been granted on this point.

However, the insurance companies’ expert’s opinion that Brand should have seen and repaired the faulty connection is sufficient to create an issue of fact because it is contradictory to Brand’s testimony. Therefore, summary judgment was properly denied on this allegation of negligence.

2. Sewell also claims that, to the extent the insurance companies claim damage to realty, their claims are barred by OCGA § 9-3-30 because more than four years passed between when Brand installed the dishwasher and when suit was filed.

First, Sewell’s argument is dependent on finding that the wiring was real and not personal property. The insurance companies argue that OCGA § 9-3-30 does not apply because Brand’s alleged negligence damaged the dishwasher, or an extension thereof, and a dishwasher is personal property. But, wiring is run throughout a structure wherever needed to provide electricity. Wiring can be extended when the structure is built or at anytime thereafter. The point in time when wiring is added does not alter the fact that it is intended to be a permanent part of the realty. There is no evidence that the owner intended to remove the 18-inch segment upon a sale of the property. Also, there is no evidence that the segment was a part of the dishwasher. Therefore the alleged negligence damaged real property. Cf. Mullis v. Southern Co. Svcs., 250 Ga. 90, 93-94 (4) (296 SE2d 579) (1982).

With regard to accrual of the statute of limitation for damage to real property, Sewell is partly correct. The insurance companies, as subrogees, stand in the shoes of the two relevant property owners — Mundy and the condominium association. For claims made by the owner of real property for damages resulting from negligent installation, design, or construction of that real property, the four-year limitation period accrues at the time of the negligence, not upon discovery of the negligence. See, e.g., Travis Pruitt & Assoc. v. Bowling, 238 Ga. App. 225, 226 (1) (518 SE2d 453) (1999); Heffernan v. Johnson, 209 Ga. App. 139, 140 (433 SE2d 108) (1993) (substantial completion). But for claims made by an owner of real estate for damages arising out of the negligent installation, design, or construction of someone else’s real property, an action for damage to realty accrues at the time of the injury. Travis Pruitt, 238 Ga. App. at 226 (1); Atlanta Gas Light Co. v. City of Atlanta, 160 Ga. App. 396, 398 (1) (a) (287 SE2d 229) (1981). As explained in Atlanta Gas Light, “[i]n such a situation, it is not the owner’s property which suffers immediately from the defect but [someone else’s], and it is totally unreasonable to expect the owner to discover it or assume responsibility for its repair. . . .” Id. at 398 (1) (a).

Accordingly, if the wiring is owned by Mundy, Travelers of Illinois’s claim for repairs to Mundy’s condominium is barred by OCGA § 9-3-30 because her real property was damaged at the time of the alleged negligent repair. In that case, under the rule established in Atlanta Gas Light, 160 Ga. App. at 398 (1) (a), Travelers of America’s claim for repairs to the condominium association’s real property is not barred because its property was not damaged by the negligent repair but by the fire. If the association owns the wiring, the outcome is reversed. But, because Sewell failed to show who owned the wiring, the trial court’s denial of summary judgment was not error. Sew-ell is not precluded from seeking summary judgment again.

Although the trial court held that all rights of action accrued on September 12, 1995, the date of the fire, because the dishwasher and wiring were personalty and not improvements to real property, a judgment right for any reason will be affirmed. Shapiro v. Lipman, 259 Ga. 85, 86 (377 SE2d 673) (1989).

Decided May 23, 2002.

Cozen & O’Connor, Christopher J. York, Allan Levin, for appellee.

Regardless of who owns the wiring, Mundy’s personal property located in the condominium was not injured by the negligence but by the fire, and therefore the four-year limitation period for injuries to personalty did not run on that claim. U-Haul Co. &c. v. Abreu & Robeson, Inc., 247 Ga. 565, 567 (277 SE2d 497) (1981). See also OCGA § 9-3-31.

Judgment affirmed in part and reversed in part.

Ruffin and Barnes, JJ., concur.


author: Phipps, Judge.

text:
    A02A1314.
    In the Interest of P. O. M., a child.
    (566 SE2d 334)
   Phipps, Judge.

The mother of one-year-old P. O. M. appeals orders of the superior court terminating her parental rights and granting the petition of the child’s paternal aunt and her husband to adopt him.

The decision to terminate parental rights involves a two-step inquiry. First, the court must determine whether there is present clear and convincing evidence of parental misconduct or inability. Parental misconduct or inability exists if (1) the child is deprived; (2) the deprivation is caused by the parent’s lack of proper parental care or control; (3) the cause of the deprivation is likely to continue or will not likely be remedied; and (4) the continued deprivation will likely cause serious physical, mental, emotional, or moral harm to the child. Second, if the court finds clear and convincing evidence of present parental misconduct or inability, then the court must consider whether termination of parental rights is in the best interest of the child. We review the [superior] court’s decision to determine whether, viewing the evidence in the light most favorable to [appel-lees], any rational trier of fact could have concluded by clear and convincing evidence that the natural parent’s custody rights had been lost.

Although his mother admits that P. O. M. is deprived, she challenges the sufficiency of the evidence to support the findings of the superior court as to the remaining factors. Viewed in the light most favorable to the petitioners, the evidence is sufficient. We, therefore, affirm.

1. The court’s findings, that P. O. M. is deprived and that the deprivation is caused by his mother’s lack of proper parental care or control, are supported by evidence of her unrehabilitated drug use, her near continuous incarceration during the child’s life, and her failure to complete any goals set forth in case reunification plans or to show any meaningful interest in P. O. M. or her other children.

The evidence authorized the court to find that P. O. M.’s mother has a lengthy history of alcohol and drug abuse. P. O. M. was born as a result of her out-of-wedlock relationship with the child’s father. In addition to having a child together, the parties constantly used cocaine. P. O. M.’s mother admitted that she smoked cocaine within 48 hours of giving birth to him. At the time of the birth, both mother and child tested positive for cocaine. As a result, P. O. M. was taken into emergency custody by the Department of Family & Children Services (DFACS) within several days. Moreover, at the time, his mother was on probation for felony theft by receiving. She also had two DUI convictions and one conviction of possession of marijuana. Approximately two months after P. O. M. was born, her probation was revoked, and she was returned to prison. She remained in prison at the time of the termination of parental rights hearings.

In determining whether the child is without proper parental care and control, the court shall consider whether the parent has a history of excessive use or chronic unrehabilitated abuse of intoxicating liquors, narcotic or dangerous drugs, or controlled substances and whether the parent has a conviction of a felony and imprisonment therefor which has a demonstrable negative effect on the quality of the parent-child relationship.

Shortly after P. O. M. was taken into custody by DFACS, a case reunification plan was developed requiring his mother to, among other things, obtain and complete treatment for alcohol and drug abuse, submit to psychological evaluations, and complete parenting and child nurturing skills and training classes. She failed to comply with any of these requirements, even though she could have taken steps to do so before going to prison and while incarcerated. She has visited P. O. M. only once; and, at a hearing below, she could recall that visit only through prompting by her attorney. She has not provided him with any support.

Although criminal conviction and incarceration do not always compel termination of parental rights, serving time as a convicted felon will support a termination of parental rights when adequate aggravating circumstances are shown to exist — such as failure to comply with goals for family reunification or failure to provide parental care and support. [Cit.]

Evidence also was presented showing that she has two other children, ages six and eight; that she placed them in an orphanage because of her inability to care for them; that they are now in the custody of their biological father; and that DFACS intends to seek termination of her parental rights to these children.

2. The evidence supports the court’s finding that the cause of deprivation is likely to continue, as evidence of past conduct may be considered in determining whether the deprivation would be likely to continue. “Patterns persist absent concerted adjustment, which is virtually nonexistent.”

3. The evidence is sufficient to authorize a finding that continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to P. O. M. and that termination of his mother’s parental rights would be in his best interest.

Testimony given by the paternal aunt shows that P. O. M. is now thriving in a stable home environment. Given that, as well as evidence of his mother’s past behavior and her failure to comply with any requirements of the reunification plan, the court was authorized to find that P. O. M.’s continued deprivation would have a detrimental effect on him and that his mother’s parental rights should therefore be terminated. “ ‘[T]he [superior] court was authorized to consider the [child’s] need for a stable home situation. . . .’ ‘Children need permanence of home and emotional stability or they are likely to suffer serious emotional problems.’ ”

Decided May 23, 2002.

Elizabeth B. Reisman, for appellant.

Fox, Chandler, Homans, Hicks & McKinnon, David A. Fox, for appellees.

Judgment affirmed.

Andrews, P. J., and Mikell, J., concur.

       (Footnotes omitted.) In the Interest of A. M. W., 249 Ga. App. 22 (547 SE2d 401) (2001).

       (Footnote omitted.) In the Interest of T. F., 250 Ga. App. 96, 98 (1) (550 SE2d 473) (2001).

        In the Interest of R. H., 240 Ga. App. 551, 553 (2) (524 SE2d 257) (1999).

        In the Interest of B. C, 235 Ga. App. 152, 155 (508 SE2d 774) (1998).

       Id.

       (Footnotes omitted.) In the Interest of N. M. H., 252 Ga. App. 353, 358 (556 SE2d 454) (2001).


text:
    A02A1324.
    JOHNSON v. THE STATE.
    (566 SE2d 349)
   Phipps, Judge.

Ja Ja Johnson was convicted of two counts of felony obstruction of a law enforcement officer and one count of disorderly conduct. He contends that the trial court erred in denying his motion for directed verdict of acquittal of the disorderly conduct charge. Finding no error, we affirm.

The standard of review for the denial of a motion for directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction. Under that standard we view the evidence in the light most favorable to the jury’s verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

A person commits the offense of disorderly conduct when he, without provocation, uses obscene and vulgar or profane language in the presence of a person under the age of 14 years which threatens an immediate breach of the peace. A person commits the felony offense of obstructing or hindering law enforcement officers when he knowingly and wilfully resists, obstructs, or opposes any law enforcement officer in the lawful discharge of his official duties by offering or doing violence to the person of the officer.

The State’s evidence showed that on the day in question, law enforcement officers Brown and Sands were on patrol at a park in Claxton, when they heard someone in a crowd yelling obscenities. Upon investigation they observed Johnson yelling “f— the police” within hearing distance of numerous small children. The officers approached Johnson, informed him that he could be arrested for engaging in such conduct, and asked him to stop. Because he refused to stop, they arrested him. About this time, Johnson pushed one of the officers in the chest several times and repeatedly kicked the other officer.

Decided May 23, 2002.

Earle J. Duncan III, for appellant.

J. Thomas Durden, Jr., District Attorney, Joe G. Skeens, Assistant District Attorney, for appellee.

At trial, a defense witness testified that there were no children in the vicinity at the time, and Johnson denied yelling obscenities or wilfully hindering or obstructing the officers.

Conflicts in the testimony of the witnesses are, however, a matter of credibility for the jury to resolve. Viewed in the light most favorable to the verdict, the evidence authorized any rational trier of fact to find the elements of disorderly conduct, as well as felony obstruction of law enforcement officers, beyond a reasonable doubt.

Judgment affirmed.

Andrews, P. J., and Mikell, J., concur.

       (Citation and punctuation omitted.) Jackson v. State, 236 Ga. App. 260-261 (511 SE2d 615) (1999).

       OCGA § 16-11-39 (a) (4).

       OCGA § 16-10-24 (b).

        Jackson v. State, supra at 261.


author: Eldridge, Judge.

text:
    A02A1356.
    HARRIS v. MOSS.
    (565 SE2d 868)
   Eldridge, Judge.

Vicki Ann Harris was injured by Kimberly Joyanna Moss in a rear-end collision at the intersections of Colonial Parkway and Clifton Springs Road in DeKalb County. Neck surgery resulted, and Harris filed suit. Following a trial, a jury returned a verdict in favor of Harris in the amount of $35,150. Harris filed a motion for new trial. Upon review of the evidence, the trial court determined that “the jury’s award of damages was clearly so inadequate as to be inconsistent with the preponderance of evidence and that [Harris] is entitled to an additur of $10,000, which would bring the total judgment to $45,150.” The trial court then held that, “Should [Moss] object to the additur of $10,000, [Harris] shall receive a new trial based upon the verdict being contrary to the weight of the evidence.” Moss did not object to the additur. Harris appeals the trial court’s order and seeks a new trial. Held:

In her sole claim of error, Harris contends the trial court erred by failing to remove for cause a prospective juror, Ms. Burnett. In that regard, the law presumes that potential jurors are both fair and impartial, and Harris bears the burden of rebutting that presumption. “The trial judge has a discretion in determining whether a juror can decide the case in accordance with the evidence presented during the trial and without bias or partiality or outside influences. Unless there is manifest abuse we cannot require a new trial.”

In this case, prospective juror Burnett stated that her husband had an experience with a personal injury lawsuit that affected him indirectly in his workplace and that such experience caused her to “worry about what effect that’s [a damages award] going to have on the person that has to come up with that.” However, Burnett was very clear that she “could be as fair as anybody else.” While Burnett stated that she could “be totally fair, but I don’t know how impartial I could be,” she also clearly stated that she would do exactly what the trial court instructed when deciding upon any damages award, regardless of her personal feelings:

If you say that I am supposed to do something, I will do it because that is the way the system works. I think we all do things in our lives and we have regrets and feelings about them, and I would have feelings about a very high award to anybody on any sort of circumstances. I think the system sometimes goes overboard. And I would hate to see that happened in a case I was involved with. But I will go by the law because I am a citizen.

Upon review, the thrust of Burnett’s voir dire responses was that she would be as fair and impartial as she could possibly be and would follow the trial court’s instructions.

A prospective juror’s doubt as to his or her own impartiality does not demand as a matter of law that he or she be excused for cause. Nor is excusal required when a potential juror expresses reservations about his or her ability to put aside personal experiences. A conclusion on an issue of bias is based on findings of demeanor and credibility which are peculiarly in the trial court’s province, and those findings are to be given deference.

Decided May 23, 2002.

Moss & Rothenberg, Robert A. Moss, Jeffrey P. Rothenberg, for appellant.

Chambers, Aholt & Rickard, Ian R. Rapaport, for appellee.

Accordingly, based on the totality of the responses, we cannot say the trial court manifestly abused its discretion by failing to strike prospective juror Burnett for cause.

Judgment affirmed.

Smith, P. J., and Ellington, J., concur.

       See Stewart v. Stewart, 240 Ga. App. 573, 577 (3) (524 SE2d 267) (1999).

       (Citations and punctuation omitted.) Pavamani v. Cole, 215 Ga. App. 594, 595 (5) (451 SE2d 795) (1994).

       (Citations and punctuation omitted.) Upshaw v. State, 249 Ga. App. 741, 743 (1) (549 SE2d 526) (2001).

       Our decision in Walls v. Kim, 250 Ga. App. 259 (549 SE2d 797) (2001), relied upon by Harris, does not require a different result. In Walls, the prospective juror at issue had a personal interest in the result due to a personal relationship with one of the parties. Accord Mulvey v. State, 250 Ga. App. 345, 348 (3) (551 SE2d 761) (2001). That is not the case here.


author: Andrews, Presiding Judge.

text:
    A02A0709.
    JONES v. THE STATE.
    (566 SE2d 1)
   Andrews, Presiding Judge.

Keith Lavelle Jones was found guilty by a jury of trafficking in cocaine and possession of cocaine with intent to distribute. His sole enumeration of error on appeal is that the trial court erred by denying his motion to suppress evidence of cocaine found by police during a search of his residence pursuant to a search warrant. Specifically, he claims the affidavit presented to obtain the warrant was insufficient to support a finding of probable cause. Because we find the affidavit was sufficient, we affirm the judgment of conviction.

The affidavit given by Officer Casper of the Multi Agency Narcotics Squad stated that Officer Neville, also of the narcotics squad, was told by an informant who had previously provided reliable information in at least two other narcotics investigations that within the past week the informant personally saw cocaine at Jones’s residence at 4719 Cantrell Road in the possession of Jones. Officer Casper further stated that by independent investigation he confirmed that Jones lived at the stated residence. Based on this information, the magistrate issued a search warrant for the residence to search for cocaine and related evidence. A search of the residence pursuant to the warrant produced 39.8 grams of cocaine.

Under Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983), where issuance of a search warrant is based primarily on an informant’s tip, the issuing magistrate must apply the “totality of the circumstances” test to determine if there is probable cause for the search warrant.

Decided April 10, 2002

Reconsideration dismissed May 24,2002.

Turner & Willis, Christopher W. Willis, for appellant.

Keith Jones, pro se.

Lydia J. Sartain, District Attorney, Lindsay H. Messick, Assistant District Attorney, for appellee.

The task of the issuing magistrate [under Gates] is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.

(Punctuation omitted.) State v. Stephens, 252 Ga. 181, 182 (311 SE2d 823) (1984) (quoting from Gates).

The officer’s affidavit gave sufficient information for the magistrate to determine that the informant was reliable and had personal knowledge that Jones possessed cocaine at his residence. Under the totality of the circumstances, this information gave the magistrate a substantial basis to conclude that probable cause existed to issue a search warrant for the cocaine. Stephens, supra. Contrary to Jones’s contention, the affidavit was not rendered insufficient because it was based on double hearsay provided by the informant to Officer Neville, who relayed the information to the affiant, Officer Casper. McNeal v. State, 133 Ga. App. 225, 228 (211 SE2d 173) (1974); Lewis v. State, 234 Ga. App. 873, 876 (508 SE2d 218) (1998); Kelly v. State, 184 Ga. App. 337, 338 (361 SE2d 659) (1987); Whiteley v. Warden, 401 U. S. 560 (91 SC 1031, 28 LE2d 306) (1971) (officer may rely on information communicated by fellow officers for probable cause).

Judgment affirmed.

Phipps and Mikell, JJ, concur.


text:
    A02A0154.
    MIDDLEBROOKS v. THE STATE.
    (566 SE2d 350)
   Andrews, Presiding Judge.

Derrick Middlebrooks was found guilty by a jury of selling cocaine in violation of the Georgia Controlled Substances Act. For the reasons stated below, we find no error and affirm the judgment of conviction.

1. The evidence was sufficient to support the guilty verdict. A police officer testified that while operating undercover she saw Mid-dlebrooks sell crack cocaine in her presence. An informant who was working with the officer testified that Middlebrooks sold her crack cocaine. The substance sold by Middlebrooks tested positive at the State Crime Lab for less than one gram of cocaine. Middlebrooks testified and denied selling any cocaine to anybody. The evidence viewed in the light most favorable to the jury’s verdict was sufficient for a rational trier of fact to find Middlebrooks guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Middlebrooks claims his trial counsel was ineffective on various grounds.

(a) He claims trial counsel improperly placed his character into evidence by making reference to the fact that he was in jail at the time of the trial. Because this claim was not raised by new appellate counsel for Middlebrooks at the earliest practicable time in the motion for new trial, it was waived and cannot be raised for the first time on appeal. Glover v. State, 266 Ga. 183, 184 (465 SE2d 659) (1996). In any event, evidence that an accused is in jail in connection with the case at issue does not place his character into evidence. Ferrell v. State, 198 Ga. App. 270, 272 (401 SE2d 301) (1991), overruled on other grounds, Watts v. State, 274 Ga. 373, 374-375 (552 SE2d 823) (2001).

(b) He claims trial counsel was unprepared for trial in two respects — counsel failed to impeach a witness for the State with evidence of arrests and convictions, and counsel failed to use the arrest affidavit in this case to show the police officer gave inaccurate testimony about the sale of cocaine. As to the first claim, the witness denied that she had engaged in any criminal activity or had any convictions, and Middlebrooks failed to produce any evidence at trial or at the hearing on the motion for new trial that any such arrests or convictions existed. As to the second claim, the affidavit in support of the arrest warrant is not a part of the record on appeal, so we are unable to address this contention. But even if the officer’s affidavit states that the cocaine was sold to her, and she testified at trial that the cocaine was sold in her presence, the failure of trial counsel to bring this inconsistency to the attention of the jury would not warrant reversal of the conviction. Given the testimony from the informant that Middlebrooks sold cocaine to her, we find there would have been no reasonable probability that the outcome of the trial would have been different but for counsel’s deficient performance. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

3. There is no merit to Middlebrooks’s claim that the trial court improperly commented on the evidence or the guilt of the accused on two occasions during the trial in violation of OCGA § 17-8-57.

On the first occasion, a witness for the State referred to a house “that I later purchased from.” In an attempt to clarify the testimony, the trial court asked the witness if she meant that was the house where the drugs were purchased, and the witness responded, ‘Yes.” This was not an improper comment on the testimony.

The second occasion concerned instructions given by the trial court to the jury after the jury returned a verdict finding Mid-dlebrooks guilty of selling cocaine as charged in the indictment and also guilty of the lesser included offense of possession of cocaine. The trial court instructed the jurors that, even if Middlebrooks possessed the cocaine to sell it, they could not enter a guilty verdict for both offenses; that if they found Middlebrooks was guilty of one of these offenses, they had to choose which one. The jury returned to deliberations and came back with a guilty verdict for selling cocaine. These instructions properly informed the jury that, if the evidence authorized it, they could convict Middlebrooks of either offense but not both. Thomas v. State, 261 Ga. 854, 856 (413 SE2d 196) (1992). There was no improper comment on the guilt of the accused.

4. Contrary to Middlebrooks’s contention, the jury’s initial verdict finding him guilty of both selling and possessing cocaine did not act as an acquittal on the charge of selling cocaine. As set forth in Division 3, supra, the trial court properly instructed the jury on their options for reaching a proper verdict. Thomas, 261 Ga. at 856. The second verdict finding Middlebrooks guilty of selling cocaine was based on the evidence and proper instructions from the court. Tyson v. State, 184 Ga. App. 309, 311 (361 SE2d 386) (1987).

5. Middlebrooks claims the trial court erred when it denied him a continuance prior to trial so that he could replace his appointed trial counsel with hired counsel.

Immediately before the jury was brought in on the first day of trial, Middlebrooks moved for a continuance so that he could attempt to hire trial counsel to replace his appointed counsel. He gave no reason why he could not be adequately represented by his appointed counsel, indicated he did not presently have money to hire counsel, but said he needed more time to do so. The record shows that Mid-dlebrooks had over a year prior to the trial to hire his own attorney. Whether or not to grant a continuance under these circumstances is in the discretion of the trial court, and denial of a continuance is proper where the defendant has negligently failed to employ counsel promptly or where it appears the motion is a tactic for delay. Jordan v. State, 247 Ga. App. 551, 555 (544 SE2d 731) (2001); Sanders v. State, 245 Ga. App. 701-702 (538 SE2d 772) (2000). The trial court did not abuse its discretion by denying the motion.

Decided May 24, 2002.

Sullivan & Sturdivant, Harold A. Sturdivant, Michele W. Ogle-tree, for appellant.

William T. McBroom III, District Attorney, Robert H. English, Assistant District Attorney, for appellee.

6. On the second day of trial, Middlebrooks moved for the trial court to discharge his appointed counsel and appoint new counsel because he had lost confidence in his attorney after the attorney allegedly used a racially derogatory term. He claims the trial court erred by denying the motion.

Middlebrooks told the trial court that, several days prior to the trial, appointed counsel used a racially derogatory term in his presence that was directed toward other persons. He testified that since that time it was “kind of hard” to be represented by the attorney, and he was having a hard time feeling confident about the attorney. Mid-dlebrooks did not mention this when he moved for a continuance to hire a new attorney on the first day of trial. A request to discharge one appointed counsel and have another substituted in his place is addressed to the sound discretion of the trial court. Williams v. State, 169 Ga. App. 812, 815 (315 SE2d 42) (1984). There was no evidence that the remark caused a problem that prevented appointed counsel from presenting an adequate defense on behalf of Middlebrooks. Just because Middlebrooks experienced distrust or loss of confidence in his appointed counsel did not entitle him to new counsel or show that counsel could not provide him with effective representation. Ham-monds v. State, 218 Ga. App. 423-424 (461 SE2d 589) (1995). The Sixth Amendment right to counsel guarantees effective assistance of counsel, not preferred counsel or counsel with whom a meaningful relationship can be established. Id.; Cotton v. State, 223 Ga. App. 288, 289-290 (477 SE2d 425) (1996). The trial court did not abuse its discretion by denying the motion.

Judgment affirmed.

Phipps and Mikell, JJ, concur.


author: Miller, Judge.

text:
    A02A0189.
    JOHNSON v. THE STATE.
    (566 SE2d 353)
   Miller, Judge.

Despite his claim of self-defense, Ricky Darnell Johnson was convicted of nine counts of aggravated assault arising out of his shooting numerous bullets into and near a residence occupied by his former wife and others. While cross-examining Johnson, the prosecutor without objection challenged him on inconsistent statements he made to court-appointed psychologists who evaluated him for competency to stand trial and for sanity at the time of the incident. Johnson claims his counsel was ineffective in failing to object to the use of these statements as privileged and as violative of his Fifth Amendment rights. Since Johnson failed to call his trial counsel to testify at the motion for new trial hearing, we presume the decision not to object was strategic and therefore affirm the denial of his motion for new trial.

The record reveals that Johnson tried to pick up his daughter from a Thanksgiving celebration without his ex-wife’s permission. When confronted by someone at the residence, he began shooting at the person and then left, only to return to the residence and repeatedly shoot into the crowded home, injuring at least one person. In a pre-trial notice, he announced his intent to raise the issues of insanity at the time of the incident and incompetency to stand trial. A court-appointed psychologist evaluated him and determined that he was competent and that in the psychologist’s opinion, no grounds for an insanity defense existed. At Johnson’s request, the court had a second psychologist evaluate him; the second psychologist reached the same conclusions.

At trial Johnson testified that others at the residence threatened him with deadly force and that he was therefore only acting in self-defense. Challenging this testimony, the prosecutor on cross-examination referenced the psychologists’ reports, pointing out that Johnson had not mentioned threats from others or acting in self-defense to either psychologist when describing the incident. Johnson raised no objection. The jury found him guilty of nine counts of aggravated assault.

Claiming counsel was ineffective in failing to object to use of the psychologists’ reports, Johnson moved for a new trial but presented no testimony at the hearing. Noting the absence of testimony from counsel, the trial court presumed that the lack of any objections to the testimony was strategic and denied the motion. Johnson appeals.

To prove his claim of ineffective assistance, Johnson bore the burden of showing that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. Stephens v. State, 265 Ga. 120,121 (2) (453 SE2d 443) (1995). He argues that the psychologist-patient privilege protected his communications with the psychologists and that the use of the information he provided in those interviews also violated his Fifth Amendment right against self-incrimination. Therefore, he contends that his counsel grossly erred in not objecting to the cross-examination referencing that information.

It is true that psychologist-patient communications are generally privileged under OCGA §§ 24-9-21 (6) and 43-39-16, but only when the patient voluntarily seeks treatment from the psychologist. In the Interest of L. H., 236 Ga. App. 132, 136 (3) (511 SE2d 253) (1999); see In the Interest of M. N. H., 237 Ga. App. 471, 475 (4) (517 SE2d 344) (1999). Since Johnson was evaluated by psychologists pursuant to court order and received no treatment, the psychologists were witnesses for the court and the privilege did not apply. Christenson v. State, 261 Ga. 80, 84 (2) (d) (402 SE2d 41) (1991); L. H., supra, 236 Ga. App. at 136-137 (3).

Nevertheless, if admissions made by the patient during the evaluations are used for a purpose other than competency or sanity, they may be protected by the Fifth Amendment right against self-incrimination. See Hicks v. State, 256 Ga. 715, 721-722 (14) (352 SE2d 762) (1987); Harris v. State, 256 Ga. 350, 352-353 (3) (349 SE2d 374) (1986); see Christenson, supra, 261 Ga. at 84 (2) (d). Here counsel’s failure to object waived the Fifth Amendment issue. Mobley v. State, 269 Ga. 738, 741 (2) (505 SE2d 722) (1998), citing Ingram v. State, 253 Ga. 622, 636 (14) (323 SE2d 801) (1984).

The question therefore is whether counsel’s failure to object on Fifth Amendment grounds was deficient performance. “There is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance, and that any challenged action by trial counsel might be considered sound trial strategy.” (Citation and punctuation omitted.) Stephens, supra, 265 Ga. at 121-122 (2). As in Baker v. State, 251 Ga. App. 377, 379 (2) (554 SE2d 324) (2001); McClarity v. State, 234 Ga. App. 348, 350-351 (3) (506 SE2d 392) (1998); and Foreman v. State, 200 Ga. App. 400, 401 (3) (408 SE2d 178) (1991), Johnson chose not to call his trial counsel to testify at the motion for new trial hearing. “Thus, he made no affirmative showing that the purported deficiency in his trial counsel’s representation was indicative of ineffectiveness and was not an example of a conscious and deliberate trial strategy.” (Footnote omitted.) Baker, supra, 251 Ga. App. at 379 (2). Absent contrary evidence, defense counsel’s actions are presumed to be part of trial strategy, Thomas v. State, 268 Ga. 135, 139 (12) (485 SE2d 783) (1997); Mc-Clarity, supra, 234 Ga. App. at 351 (3), errors in which do not constitute ineffective assistance. Cunningham v. State, 244 Ga. App. 231, 234 (3) (535 SE2d 262) (2000). Specifically, “the decision not to object to certain evidence is presumed strategic and provides no valid basis for an ineffective assistance claim.” (Footnote omitted.) Id. Johnson’s claim must accordingly fail.

Judgment affirmed.

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

Decided May 24, 2002

Dennis T. Blackmon, for appellant.

Peter J Skandalakis, District Attorney, Anne C. Allen, Assistant District Attorney, for appellee.


text:
    A02A0054.
    AHN v. THE STATE.
    (565 SE2d 823)
   Miller, Judge.

After the court ruled it would allow in a similar transaction, defendant asked for and received a bench trial. The State did not introduce the similar transaction, and the court convicted defendant on all charges. The question on appeal is whether the trial court abused its discretion in denying a motion for mistrial where defendant alleged that the State improperly “tricked” defendant into waiving his right to a jury trial. We hold that the trial court did not abuse its discretion and therefore affirm.

Dr. Soo Wong Ahn weaved wildly in and out of his lane, even going up onto the curb. An officer pulled him over, smelled alcohol, and administered field sobriety tests, which Dr. Ahn failed. The officer arrested him for DUI and for failure to maintain lane. The officer read Dr. Ahn the implied consent notice for persons over 21, and Dr. Ahn agreed to a breath test, which showed his blood alcohol level to be 0.097.

Dr. Ahn initially demanded a jury trial. The State gave notice of its intent to introduce a similar transaction from 1997, which notice it withdrew when Dr. Ahn’s counsel threatened to appeal the matter on an interlocutory basis to the Supreme Court of Georgia. The case was then transferred to a division newly created to accommodate a new judge on the court. The State renewed its notice of an intent to introduce the 1997 similar transaction and added a 1988 similar transaction. When the court ruled that the 1997 transaction alone was admissible, Dr. Ahn, fearing the similar transaction would prejudice a jury, withdrew his jury trial demand and requested and received a bench trial. The State rested its case without introducing the 1997 similar transaction. Claiming he was tricked into waiving his right to a jury trial, Dr. Ahn moved for a mistrial, which the court denied. The court convicted Dr. Ahn of DUI and of failure to maintain lane.

Dr. Ahn appeals, contending that the court erred in denying his motion for mistrial and in allowing the State to reopen its case to introduce hearsay evidence as to his age. Since Dr. Ahn was the architect of his own fate, we affirm.

Decided May 15, 2002

Reconsideration denied May 28, 2002

Head, Thomas, Webb & Willis, William C. Head, for appellant.

Gerald N. Blaney, Jr., Solicitor-General, Gary S. Vey, Assistant Solicitor-General, for appellee.

1. As was his option, Dr. Ahn chose to waive his right to a jury trial and specifically requested a bench trial. Cf. Evans v. State, 233 Ga. App. 879 (1) (506 SE2d 169) (1998). He seeks to lay the blame for this tactical decision at the feet of the State, claiming that the State’s successful effort to gain court permission to introduce the 1997 similar transaction “forced” Dr. Ahn to choose a bench trial. Dr. Ahn’s attorney was apparently convinced that the similar transaction evidence would unduly prejudice a jury. Thus, he claims that the court should have granted him a mistrial when the State decided not to introduce the similar transaction evidence.

Dr. Ahn’s argument falls of its own weight. He vigorously maintained below that the 1997 similar transaction evidence should not be admitted. Then, when the State chose not to introduce the evidence, he complained that this deprived him of his right to a jury trial and entitled him to a mistrial. The State, which is under no obligation to introduce every piece of evidence at its disposal, basically complied with Dr. Ahn’s wishes by not introducing the evidence. As the architect of his own fate, Dr. Ahn can hardly be heard to complain. We discern no manifest abuse of discretion by the trial court in denying his motion for mistrial on this basis. See Stanley v. State, 250 Ga. 3, 4 (2) (295 SE2d 315) (1982) (refusing a mistrial is largely within the discretion of the trial judge).

2. Dr. Ahn’s remaining enumerations of error all concern the efforts of the State to show that Dr. Ahn was over 21, which evidence the State sought to introduce to rebut Dr. Ahn’s objection that the State failed to show that the correct implied consent notice was given him. Indeed, OCGA § 40-5-67.1 (b) specifies two different notices based on whether the suspect is age 21 or over. However, these enumerations are all moot, as Dr. Ahn specifically stipulated at trial that the officer “read the correct warning.” Thus, whether the State properly proved that Dr. Ahn was over 21 is irrelevant.

Judgment affirmed.

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


text:
    A02A0571.
    HAMMOND v. THE STATE.
    (565 SE2d 873)
   Miller, Judge.

Franklin D. Hammond was convicted of conspiracy to traffic in methamphetamine, trafficking in methamphetamine, conspiracy to manufacture methamphetamine, manufacturing methamphetamine, conspiracy to sell and distribute methamphetamine, and selling and distributing methamphetamine. After the denial of his motion for new trial, Hammond filed this appeal. Hammond asserts that the trial court erred by denying his motion to suppress, by denying his motion to recuse an assistant district attorney (ADA), and by allowing certain witnesses to testify despite the State’s noncompliance with OCGA § 17-16-8 (a). He also claims that the trial court erroneously denied his motion for directed verdict of acquittal. After review, we find no merit to any of these purported errors and therefore affirm.

When examined in a light most favorable to the verdict, the evidence established that in August 2000, police arrested Wayman Knight for trafficking in methamphetamine. After agreeing to cooperate with authorities, Knight then implicated Charles Kingsmill and Hammond. Knight told police that he had been dealing with Hammond for some time and that Hammond had introduced him to Kingsmill. Knight led investigators to an automotive shop from which methamphetamine was being manufactured and sold. Under police supervision, Knight then set up and executed a controlled drug deal with Kingsmill in which he purchased $8,000 worth of methamphetamine from Kingsmill. The consummation of that drug transaction resulted in the arrest of Kingsmill and others, and the seizure of the methamphetamine manufacturing operation (“meth lab”) and a large quantity of drugs, money, and guns.

All of those arrested agreed to cooperate and admitted their involvement in the meth lab and sales. Consenting to testify against Hammond were Knight, Robert Manus (the owner of the shop and a participant in the meth lab), Kingsmill, and Kingsmill’s wife. They each implicated Hammond as having a major role in the drug operation. Shortly thereafter, another local methamphetamine dealer was arrested for trafficking and also implicated Hammond as a major participant in the methamphetamine business.

As a result of the drug investigation, the police secured an arrest warrant for Hammond and a search warrant for Hammond’s residence. During the execution of the warrant, police found a large amount of cash, an address book that contained Kingsmill’s name and telephone numbers, incriminatory financial documents and tax records, and several firearms. Based on this evidence and the direct testimony of Hammond’s accomplices implicating Hammond, Hammond was convicted on the six trafficking and distribution charges referenced earlier. •

1. Hammond contends that the trial court erred in failing to grant his motion to suppress evidence that the State gathered in reliance upon what he terms a fatally defective warrant. He claims that the officer who procured the search warrant elected not to inform the judge that he had “actually made a deal with the informant to reduce a charge of trafficking, with a mandatory minimum sentence of ten years and a two hundred thousand dollar fine, to misdemeanor possession of marijuana with a maximum sentence of twelve months in prison.”

In determining the existence of probable cause for a search warrant, the magistrate or issuing judge is merely required to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of any person supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Gordon v. State, 248 Ga. App. 776, 777 (546 SE2d 925) (2001). Thereafter, when a trial court finds there was probable cause for the issuance of the warrant by the magistrate, the trial court’s factual findings will be upheld unless clearly erroneous. Bryant v. State, 268 Ga. 616, 618 (6) (491 SE2d 320) (1997). This Court’s role on review is to determine whether the magistrate had a substantial basis for deciding that probable cause existed to issue the search warrant. Gordon, supra, 248 Ga. App. at 777-778. When reviewing the trial court’s ruling on a motion to suppress, we must construe the evidence most favorably toward upholding the court’s ruling. Floyd v. State, 237 Ga. App. 586 (516 SE2d 96) (1999). And, in so doing, we must defer to the trial court’s determination on the credibility of witnesses, and the trial court’s ruling on disputed facts must be accepted unless it is clearly erroneous. Bellamy v. State, 243 Ga. App. 575, 577 (1) (b) (530 SE2d 243) (2000).

When considered within that analytical framework, the evidence offered at the motion hearing showed that during an investigation of illegal narcotics, the arrest of Knight led to incriminating information about others in a drug ring. After Knight told investigators that Kingsmill had a meth lab at his automobile repair shop, police arranged for Knight to set up a controlled buy of $8,000 worth of methamphetamine from Kingsmill. After Kingsmill sold the drugs to Knight, Kingsmill was arrested, and a search warrant was obtained for his shop and the residence. A sergeant testified that during the execution of the warrant, investigators discovered chemicals and equipment used to produce methamphetamine including homemade gas chambers, anhydrous ammonia, ether, filters, and other items used in the process. These discoveries led to the arrests of Kingsmill, Kingsmill’s wife, and five other individuals. After interviewing the arrestees and determining that their accounts corroborated each other’s statements, and after comparing their statements to Knight’s and based on the additional confirmation obtained by the physical evidence collected as to the meth lab, the sergeant applied for a search warrant. A supplemental report by an investigator was added to the warrant application. The investigator advised that “Affiant knows that within the past year Hammond’s son Danny had been arrested twice for trafficking in methamphetamine along with his grandson.” This evidence was sufficient to show that the issuing magistrate had a substantial basis for finding there was a reasonable probability that contraband would be found on Hammond’s property. Perkins v. State, 220 Ga. App. 524-525 (1) (469 SE2d 796) (1996).

Without question, notwithstanding the contrary claim, the search warrant was not obtained on the bare word of a lone informant who had entered into an undisclosed deal with prosecutors and whose information lacked any independent corroboration. Compare Robertson v. State, 236 Ga. App. 68, 70 (510 SE2d 914) (1999). The trial court correctly determined that, even had the deal been revealed, there was more than a substantial basis for the decision to issue the warrant and properly denied the motion to suppress. See Gordon, supra, 248 Ga. App. at 779.

2. Hammond asserts that the trial court erred in denying his motion to recuse the ADA from the case. He complains that the ADA actively participated in executing the warrant and interviewed all of his co-defendants. He further argues that the ADA was a potential witness and, therefore, was ethically bound to recuse himself and should have “appointed a ‘less interested’ attorney to prosecute the case.”

The ADA was not required to recuse himself. Unlike the case upon which Hammond relies, the ADA was neither the defense counsel nor did he testify as a defense witness. Compare Wright v. State, 267 Ga. 496 (2) (a) (480 SE2d 13) (1997). Nor does Mobley v. State, 265 Ga. 292, 300 (18) (b) (455 SE2d 61) (1995), support Hammond’s position. The Supreme Court in Mobley held that during the sentencing phase, prosecutors are precluded from testifying about the reasons for rejecting plea offers. Id. at 300. That holding does not apply here.

3. Hammond asserts that the trial court committed reversible error by allowing certain witnesses to testify despite the State’s noncompliance with OCGA § 17-16-8 (a). He argues that because the State failed to provide him with the dates of birth for all of its witnesses, he, at a minimum, was entitled to the continuance that he requested. He asserts that without that information, he was unable to conduct criminal background checks on the prosecution witnesses. He further claims that neither the discovery statute nor State v. Dickerson, 273 Ga. 408, 410 (1) (542 SE2d 487) (2001), exempts the State from supplying the birth dates of its law enforcement witnesses.

Here, the State attorney failed to provide the defense with some of the requisite information. As a consequence, the trial court refused to allow one witness to testify, and the prosecutor agreed not to call a second witness. The trial court also directed that defense counsel be provided with the opportunity to interview yet a third witness before the trial began. Of the ten witnesses who were permitted to testify for the prosecution, five were law enforcement personnel and apparently fit within the ambit of subsection (b)’s more limited disclosures of only current work location and work phone number. See OCGA § 17-16-8 (b). Hammond, however, claims that one of the five was not a law enforcement officer in that she was a forensic chemist employed by the U. S. Drug Enforcement Administration in Miami. Even assuming without deciding that she was not a “law enforcement officer” within the meaning of OCGA § 17-16-8 (b), we hold that defense counsel admitted that he had been furnished with a copy of the crime lab report bearing her signature. Nor has Hammond shown how he was harmed since none of the drugs tested and identified by the chemist were found in Hammond’s possession and he was not convicted of possession.

Of the other five witnesses, only Knight had a prior criminal history, and that criminal past had been fully disclosed to the defense before trial. While it is true that the State failed to provide the defense with the requisite information as to Knight, the trial court found no harm since information as to Knight’s criminal history appeared in a transcript of an interview and a copy of the transcript had been provided to the defense. Moreover, the trial transcript showed that Knight was thoroughly cross-examined about his criminal past. While on cross-examination, Knight admitted to being on parole at the time of the drug operation and conceded that he had obtained a favorable deal from the prosecutor on the charges in Coweta County.

Finally, although Hammond claims that he was harmed by the prosecutor’s reference to the anticipated testimony of witnesses who did not testify, opening statements were not recorded. Nor was a transcript recreated after the fact by agreement as authorized by OCGA § 5-6-41. When an appellant seeks to prove error in the trial proceedings, the burden is on him to produce a transcript of the allegedly erroneous matter. Mindock v. State, 187 Ga. App. 508 (1) (370 SE2d 670) (1988). This he failed to do.

4. Hammond asserts that he was entitled to a directed verdict of acquittal because the State failed to tender a single piece of evidence that was identified as methamphetamine. He claims that the State failed to prove that he ever possessed methamphetamine on his person or on his property. Hammond’s somewhat circuitous argument overlooks the fact that he was neither indicted for nor convicted of possession. Actual physical possession is not required to prove trafficking when, as here, actual active participation in the possession of such illegal drugs so as to be a party to the crime of trafficking had been shown. See Green v. State, 187 Ga. App. 373, 375 (2) (370 SE2d 348) (1988). Hammond was tried and convicted of charges emanating from the manufacture, sale, and distribution of methamphetamine, charges that were amply supported by the record. Cf. Gamble v. State, 223 Ga. App. 653, 654 (1) (478 SE2d 455) (1996).

Decided May 28, 2002.

Sexton & Morris, Lee Sexton, for appellant.

Peter J. Skandalakis, District Attorney, Raymond C. Mayer, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Smith, Presiding Judge.

text:
    A02A0660.
    In the Interest of M. J. T., a child.
    (565 SE2d 877)
   Smith, Presiding Judge.

The father of M. J. T. appeals from an order entered by the Juvenile Court of Glynn County terminating his parental rights, contending that the Department of Human Resources failed to carry its burden of proof as set out in OCGA § 15-11-94. We find that the trial court did not err in concluding that the Department had shown clear and convincing evidence of parental misconduct or inability and that termination of the father’s rights was in the best interest of the child. We therefore affirm the order terminating the father’s parental rights.

The decision to terminate parental fights is a two-step process. The juvenile court must first determine whether clear and convincing evidence exists of parental misconduct or inability. If such evidence exists, the court must then decide whether termination of the parent’s rights is in the best interest of the child, considering the physical, mental, emotional, and moral condition and needs of the child, including the need for a secure and stable home. OCGA § 15-11-94 (a).

Parental misconduct or inability is demonstrated by showing that the criteria listed in OCGA § 15-11-94 (b) (4) (A) have been met. These criteria are: (i) that the child is deprived; (ii) that lack of proper parental care or control is the cause of the child’s deprivation; (iii) that this cause of the child’s deprivation is likely to continue or will not likely be remedied; and (iv) that the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child. Id. These same factors may also support a finding that terminating the parent’s rights is in the child’s best interest. In the Interest of C. N. H., 238 Ga. App. 50, 53-54 (2) (517 SE2d 589) (1999). In reviewing a decision terminating parental rights, this court views the evidence in a light most favorable to the appellee. In the Interest of A. M. V., 222 Ga. App. 528, 529 (474 SE2d 723) (1996). The standard of review on appeal is whether, viewing the evidence in this light, a rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights should be terminated. We must defer to the trial court’s findings of fact and affirm unless this standard is not met. In the Interest of J. O. L., 235 Ga. App. 856 (510 SE2d 613) (1998).

In this case, the criteria in OCGA § 15-11-94 (b) (4) (A) were met. The record shows that the Department became involved with M. J. T. and her parents immediately after the child’s birth. The mother has a mental disability, and the father has both a physical disability and mental problems. The parents engaged in domestic violence and could not manage their affairs. M. J. T. was placed in the Department’s emergency custody, and the Department filed a deprivation petition. After a hearing, the juvenile court entered an order finding M. J. T. deprived and awarding custody to the Department. That order was not appealed.

Since that order was not appealed, the father is bound by that finding. The second criterion, lack of proper parental care or control causing the deprivation, was shown clearly by the record. His conduct, both prior to M. J. T.’s birth and after, demonstrates that he is unable to care for her properly.

The Department then developed a case plan for reunification, which was approved by the court, and an order was entered incorporating the plan. The parents were required to learn effective nonviolent methods of communication, obtain mental and emotional stability, learn parenting skills, and maintain a safe home for the child. In addition, the father was required to take steps to learn to control bis anger.

Unfortunately, neither parent complied with the plan, and neither attained its goals. The Department filed a petition to terminate the rights of both parents less than a year after taking custody of M. J. T. The mother agreed that her parental rights should be terminated. She acknowledged that she has mental problems, is subject to hallucinations, and must take “too much medication” to be able to take care of her daughter. She testified at the hearing that she did not believe the father could parent M. J. T. She testified that her husband had abused her and beat her, pulled her hair, and “smacked” her in the face, that he even mistreated her mother, and that he had mental problems but refused to take his medication.

The social services case manager for the Glynn County Department of Family & Children Services (DFACS) testified that domestic violence had continued even after DFACS obtained custody of the child, and both parents had agreed to the termination of their parental rights after the father was incarcerated in Camden County when he became violent with a neighbor. He also had tried to kill himself and had been admitted to a psychiatric hospital. In the caseworker’s opinion, neither parent was capable of caring for the child. A mental health professional at an adult day treatment program testified that the father was diagnosed as schizophrenic and for the last month and a half he was supposed to be in adult day treatment five days a week from 9:00 a.m. to 2:00 p.m., but had appeared only three times.

The father testified at the hearing, and he repeatedly voiced doubts that M. J. T. was his biological daughter. He admitted he hit his wife, saying, “I just couldn’t hold my temper.” He also admitted he had been convicted on felony charges involving rape and sodomy and had been in a “medical facility prison” in California twice, once on those charges and once “for a knife.” He admitted having drug problems in the past and had been arrested for “marijuana, too, a long time ago” but denied present drug use. He was forced to acknowledge, however, that as recently as a month and a half before the hearing he had smoked marijuana. He denied he had been diagnosed with schizophrenia or that he had mental health problems. Although the mental health professional testified that he had been discharged from the crisis unit on “self-administration of medications,” the father denied that, testifying that while in the mental hospital in Georgia he had been given only Benadryl and he refused to take injectable medications because they made him feel drunk and sick. He later admitted he was not taking his prescribed medication because it makes him feel drowsy and sick and makes his “head unstable.” He also testified he had not attended the counseling sessions because he thought they were “silly.” He testified he “stuck poison” in his arm and tried to kill himself because of the way DFACS had treated him. He has never paid child support for his daughter. This evidence clearly supports the conclusion that the father, as well as the mother, is unable to care for his one-year-old daughter and that inability is the cause of her deprivation.

The juvenile court was authorized to consider the father’s past behavior in determining whether the conditions of deprivation are likely to continue. In the Interest of D. W. A., 253 Ga. App. 346, 348 (559 SE2d 100) (2002). The court need not reunite the child with her father to obtain current evidence regarding deprivation. Id. Contrary to the father’s argument, this case is unlike In the Interest of A. G. I., 246 Ga. App. 85 (539 SE2d 584) (2000); In the Interest of J. M., 251 Ga. App. 380 (554 SE2d 533) (2001); and In the Interest of D. F., 251 Ga. App. 859 (555 SE2d 225) (2001). In those cases, we found that insufficient evidence had been presented of certain factors. But here, given the father’s mental problems and his complete refusal to take his medication or attend counseling sessions, coupled with the father’s history of violence and prior criminal history and his failure to maintain a stable home or earn anything but a bare subsistence living, the juvenile court was authorized to find that the child’s deprivation would continue if returned to her father. This evidence also supports a finding that the child would suffer harm if returned to the father. In the Interest of J. K., 239 Ga. App. 142,146 (1) (520 SE2d 19) (1999).

Decided May 28, 2002.

John P. Rivers, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Assistant Attorney General, James A. Chamberlin, Jr., for appellee.

Finally, M. J. T.’s maternal grandfather has been caring for her, and DFACS has determined that he represents a suitable placement for the child. The grandfather wishes to adopt the child. Adding this factor to the negative factors supporting the finding of parental misconduct or inability, we must conclude that the juvenile court properly found that it was in the best interest of M. J. T. that her father’s parental rights be terminated.

Judgment affirmed.

Eldridge and, Ellington, JJ., concur.


text:
    A02A0904.
    WELCHEL v. THE STATE.
    (565 SE2d 870)
   Miller, Judge.

Having reason to suspect the presence of contraband in a motel room occupied by defendant, police used a key from the motel office to enter the room, where they found defendant with illegal drugs. The question on appeal is whether exigent circumstances justified the warrantless, nonconsensual entry into the motel room. Since prior to entry police had no reason to suspect defendant was about to destroy or conceal the drugs, we hold that no evidence supported a finding of exigency and that therefore the trial court erred in denying defendant’s motion to suppress the seized evidence. We reverse the defendant’s convictions that are based on that evidence.

When reviewing a trial court’s order concerning a motion to suppress evidence, we are guided by three principles with regard to the facts.

First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support [them]. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.

(Citations, punctuation and emphasis omitted.) Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994).

So construed, the evidence showed that after a confidential informant told police he had just seen Robert Welchel with illegal drugs in a motel room, police used a dog to conduct a free-air search outside the room. The dog alerted to the presence of illegal drugs in the room. Police obtained a key to the room from the motel front desk, knocked, and upon receiving no response, used the key to enter the locked room. Police found Welchel holding a large bag of marijuana and obtained his consent to search the room and his truck outside. They found more marijuana, some methamphetamine, and a large quantity of cash in the searches.

Indicted on two counts of possessing illegal drugs with intent to distribute, Welchel moved to suppress the evidence obtained from the searches on the ground that the police had entered his motel room without a warrant. Following an evidentiary hearing, the trial court denied the motion. A bench trial ensued, resulting in Welchel’s conviction on both counts. He appeals, enumerating as error the denial of his motion to suppress.

The Fourth Amendment to the United States Constitution protects “[t]he right of the people to be secure in their persons,' houses, papers, and effects, against unreasonable searches and seizures. . . .” See also Ga. Const, of 1983, Art. I, Sec. I, Par. XIII. In enforcing this sacred right, the U. S. Supreme Court has emphasized:

It is axiomatic that the “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” And a principal protection against unnecessary intrusions into private dwellings is the warrant requirement imposed by the Fourth Amendment on agents of the government who seek to enter the home for purposes of search or arrest.

(Citations omitted.) Welsh v. Wisconsin, 466 U. S. 740, 748 (II) (104 SC 2091, 80 LE2d 732) (1984). “A motel room is accorded the same Fourth Amendment considerations as a private home.” (Punctuation and footnote omitted.) Owens v. State, 236 Ga. App. 534, 535 (512 SE2d 394) (1999).

Seeking to excuse its conduct in entering the motel room without a warrant, the State focuses on the evidence showing probable cause that illegal drugs were in the motel room. This evidence did likely establish probable cause (see Johnson v. State, 230 Ga. App. 535, 538 (1) (496 SE2d 785) (1998)), but this focus misses the point. The U. S. Supreme Court, the Supreme Court of Georgia, and this Court have consistently held that “even where probable cause exists, warrant-less intrusion of a person’s home is prohibited by the Fourth Amendment, absent consent or a showing of exigent circumstances.” Carranza v. State, 266 Ga. 263, 264-265 (1) (467 SE2d 315) (1996), citing Steagald v. United States, 451 U. S. 204, 211 (III) (101 SC 1642, 68 LE2d 38) (1981); see Pickens v. State, 225 Ga. App. 792, 794 (1) (b) (484 SE2d 731) (1997). Indeed, Coolidge v. New Hampshire, 403 U. S. 443, 468 (II) (C) (91 SC 2022, 29 LE2d 564) (1971), emphasized:

[N]o amount of probable cause can justify a warrantless search or seizure absent “exigent circumstances.” Incontrovertible testimony of the senses that an incriminating object is on premises belonging to a criminal suspect may establish the fullest possible measure of probable cause. But even where the object is contraband, this Court has repeatedly stated and enforced the basic rule that the police may not enter and make a warrantless seizure.

(Citations omitted.) See also Carranza, supra, 266 Ga. at 266 (1).

Thus, the key to this case is whether any evidence supported a finding that exigent circumstances existed so as to justify the war-rantless entry into Welchel’s motel room. Decisions of the U. S. Supreme Court “have emphasized that exceptions to the warrant requirement are few in number and carefully delineated, and that the police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests.” (Citation and punctuation omitted.) Welsh, supra, 466 U. S. at 749-750 (II). Thus, “[b]efore agents of the government may invade the sanctity of the home, the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries.” (Citation omitted.) Id. at 750 (II); see Threatt v. State, 240 Ga. App. 592, 595-596 (1) (524 SE2d 276) (1999).

“ An exigent circumstance which does justify the warrantless entry of a private home is the officer’s reasonable belief that such action is a necessary response on his part to an emergency situation.’ ” (Citations omitted.) Lindsey v. State, 247 Ga. App. 166, 168 (1) (543 SE2d 117) (2000). No evidence showed that the officers here reasonably believed that the warrantless entry was justified to protect or preserve life or to avert serious injury. See Davis v. State, 262 Ga. 578, 582-583 (3) (422 SE2d 546) (1992); State v. McTaggart, 241 Ga. App. 852, 854 (528 SE2d 309) (2000). Rather, the State claims that the warrantless intrusion was justified by the classic exigent circumstance that the contraband was in danger of immediate destruction. See State v. David, 269 Ga. 533, 536 (2) (501 SE2d 494) (1998). Significantly, the “ ‘presence of contraband without more does not give rise to exigent circumstances.’ ” (Citation omitted.) Davis, supra, 262 Ga. at 582 (3). Thus, evidence showing the imminent destruction of the contraband is our focus in determining this case. See id. at 583 (3).

The record lacks any evidence that the drugs were in danger of immediate destruction. As no officer apparently saw Welchel prior to the warrantless entry, the lead officer could only speculate that Welchel “could have seen any of us out there through the window . . .” and that therefore he was about to destroy the evidence. He did not testify to any evidence showing that Welchel was in fact aware of police presence (for example, the dog’s alerting to the drugs was manifest merely by sitting down, and there was no evidence showing that the curtains were open, that police had caught Welchel’s eye, and that police were in uniform), nor did the officer testify that Welchel was making any efforts to conceal or destroy the drugs. Compare David, supra, 269 Ga. at 536 (2) (“[T]he officer saw one of the apartment’s occupants attempt to conceal the contraband upon seeing the officer at the open door. [Cits.]”). “Therefore, at the time [police] entered the house, there was no threat, actual or perceived, of the drugs being destroyed if a search was not commenced right away, and the possibility that the drugs might be destroyed does not excuse the deputy’s warrantless entry” (Footnote omitted; emphasis supplied.) Davis, supra, 262 Ga. at 583 (3).

Since no evidence showed that the drugs were in immediate danger of destruction, the police were not authorized to enter the motel room without a warrant. See State v. Wright, 204 Ga. App. 382, 386 (7) (419 SE2d 334) (1992). Nor did Welchel’s subsequent consent to search the room and his truck cure the problem, as “[c]onsent to search that is given after an illegal entry is tainted and invalid under the Fourth Amendment. [Cits.]” United States v. Hotal, 143 F3d 1223, 1228 (II) (9th Cir. 1998); see United States v. Heath, 259 F3d 522, 534 (II) (c) (6th Cir. 2001); cf. Gibson v. State, 261 Ga. 313, 315 (5) (404 SE2d 781) (1991) (because entry was authorized, subsequent consent was not tainted). Accordingly, the trial court erred in denying Welchel’s motion to suppress. Welchel’s convictions must be reversed, and he is entitled to a new trial on the charges. See Threatt, supra, 240 Ga. App. at 597 (1).

Decided May 28, 2002.

Sexton & Morris, Ricky W. Morris, Jr., Joseph S. Key, for appellant.

R. Joseph Martin III, District Attorney, Joseph B. Black, Assistant District Attorney, for appellee.

Judgment reversed.

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