text:
    A98A2222.
    A98A2223.
    THE STATE v. LORD. THE STATE v. ROSIER.
    (513 SE2d 25)
   Smith, Judge.

In each of these two cases, the State appeals an order suppressing the results of an Intoxilyzer 5000 breath test. We consider whether the rule established in State v. O’Donnell, 225 Ga. App. 502 (484 SE2d 313) (1997), requiring the post-arrest giving of Miranda warnings before administering field sobriety tests, also requires the giving of Miranda warnings before the state administered breath test. OCGA § 40-5-55 (a) provides for statutory consent to the breath test subject to the provisions of OCGA § 40-6-392, when an adequate implied consent warning is given pursuant to OCGA § 40-5-67.1 (b). For this reason, the decision in O’Donnell does not apply to the state administered breath test; post-arrest Miranda warnings therefore are not required, and the trial court erred in suppressing the test results.

While the trial court’s findings as to disputed facts in a ruling on a motion to suppress will be reviewed to determine whether the ruling was clearly erroneous, where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.

(Citations and punctuation omitted.) Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

The parties do not dispute the relevant facts in either case. Both Lord and Rosier were stopped by law enforcement officers while driving in Camden County. In each case, the investigating officer concluded that the driver was under the influence of alcohol and placed him under arrest. The required implied consent warning was read to Lord and to Rosier before administering the state breath test, but neither officer administered a Miranda warning. Lord and Rosier agree that the implied consent warnings under OCGA § 40-5-67.1 (b) were properly administered.

Both Lord and Rosier moved to suppress the results of their breath tests, contending they were barred by O’Donnell, supra. The trial court granted the motions and these appeals followed.

We first note that O’Donnell is inapplicable here. The portion of that decision relied upon by Lord and Rosier deals exclusively with the requirement of Miranda warnings before the administration of field sobriety tests on the basis of the state privilege against self-incrimination, OCGA § 24-9-20 (a). O’Donnell, supra at 503-504 (1). This court analyzed the admissibility of the breath test results separately, concluding that the implied consent warning was inadequate because it did not comply with OCGA §§ 40-5-67.1 and 40-6-392. Id. at 505-506 (3).

Moreover, applicable statutes and decisions of this court and the Supreme Court of Georgia clearly establish that the state administered breath test under OCGA § 40-6-392 does not require Miranda warnings. OCGA § 40-5-55 provides that

any person who operates a motor vehicle upon the highways or elsewhere throughout this state shall be deemed to have given consent, subject to Code Section 40-6-392, to a chemical test or tests of his or her blood, breath, urine, or other bodily substances for the purpose of determining the presence of alcohol or any other drug.

Even a dead, unconscious, or otherwise incapable person is “deemed not to have withdrawn the consent.” OCGA § 40-5-55 (b).

Decided February 22, 1999

Reconsideration denied March 11, 1999.

Stephen D. Kelley, District Attorney, James J. Presswood, Jr., Assistant District Attorney, for appellant.

Clyde M. Urquhart, for appellees.

Thurbert E. Baker, Attorney General, Mary Beth Westmoreland, Deputy Attorney General, Carol A. Callaway, Senior Assistant Attorney General, Neal B. Childers, Christopher S. Brasher, Assistant Attorneys General, amici curiae.

In Fantasia v. State, 268 Ga. 512 (491 SE2d 318) (1997), the Supreme Court of Georgia observed that both the United States and Georgia constitutional prohibitions against self-incrimination are “directed towards prohibiting the State’s use of coercion or compulsion to be a witness against oneself. Therefore, if there is no State coercion or compulsion, an individual’s right against self-incrimination is not implicated. [Cits.]” Id. at 513 (2). The court found that no State compulsion occurs in administering a breath test under the implied consent statute, and submission to a breath test therefore does not infringe upon a suspect’s right against self-incrimination. Id. at 514. The decisions of this court are in agreement. See Heller v. State, 234 Ga. App. 630, 631 (1) (507 SE2d 518) (1998). The choice to submit or refuse to submit to the state administered test pursuant to the implied consent statute “is not... an easy or pleasant one to make, but the criminal process often requires suspects and defendants to make difficult choices.” (Punctuation omitted.) Fantasia, supra at 514 (2).

Evidence not protected by the privilege against self-incrimination cannot be suppressed due to the failure of the arresting officer to inform the defendant of his Miranda rights. State v. Mack, 207 Ga. App. 287 (2) (427 SE2d 615) (1993); Lankford v. State, 204 Ga. App. 405, 406 (1) (419 SE2d 498) (1992) (full concurrence in Division 1). Compare State v. Warmack, 230 Ga. App. 157, 158-159 (495 SE2d 632) (1998) (Miranda warnings required before additional tests outside statutory authorization).

The trial court erroneously suppressed the results of Lord’s and Rosier’s breath tests based on the officer’s failure to inform them of their Miranda rights.

Judgment reversed in Case Nos. A98A2222 andA98A2223.

Johnson, C. J., and Barnes, J., concur.


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A98A2357.
    STEPHENS et al. v. KROGER COMPANY.
    (513 SE2d 22)
   Smith, Judge.

This appeal arises out of the trial court’s grant of summary judgment to Kroger Company in this slip-and-fall action. Because we conclude that genuine issues of material fact exist for jury resolution, we reverse.

Construed in favor of the non-movant on motion for summary judgment, evidence was presented to the trial court that Tina Stephens, along with her husband, son, and mother, entered a Kroger grocery store on a rainy February day. They walked through an enclosed vestibule containing at least two mats and then through the main entranceway into the store. Stephens testified that after she walked through the store’s main entrance toward the shopping carts, she looked up at advertising banners. She continued looking at the banners while she attempted to pull a buggy away from the others, and she stated that “[w]hen I went to pull back on the buggy, my feet slipped out from under me.” After Stephens fell, she noticed that her “hand was in the water,” although she could not see the water on the floor before she fell or after she stood up. She assumed that the water came from the buggies “[b]ecause it was up under them.” Her husband testified that the water could not be seen because the floor was “glossy like it had been freshly waxed . . . and it glares anyway.” Stephens and her husband filed this action against Kroger. The trial court granted summary judgment to Kroger, and the Stephenses appeal, contending that issues of fact exist for jury resolution. Under Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403) (1997) and its progeny, and the well-settled law that summary judgment is proper only in the absence of genuine issues of material fact, OCGA § 9-11-56, we agree with the Stephenses.

In Robinson, the Supreme Court held that

to recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier. However, the plaintiff’s evidentiary proof concerning the second prong is not shouldered until the defendant establishes negligence on the part of the plaintiff — i.e., that the plaintiff intentionally and unreasonably exposed self to a hazard of which the plaintiff knew or, in the exercise of ordinary care, should have known.

Id. at 748-749. Questions of fact exist concerning each prong of this test.

1. First, unlike cases such as Sharfuddin v. Drug Emporium, 230 Ga. App. 679, 685 (4) (498 SE2d 748) (1998), genuine issues of material fact exist concerning Kroger’s knowledge of the hazard. We note that a premises owner can show a lack of constructive knowledge by demonstrating “that it exercised reasonable care in inspecting the premises. This burden may be carried by evidence of compliance with reasonable inspection procedures.” (Citation and punctuation omitted.) Hopkins v. Kmart Corp., 232 Ga. App. 515, 517 (2) (502 SE2d 476) (1998) (physical precedent only). See also McConnell v. Smith & Woods Mgmt. Corp., 233 Ga. App. 447, 449 (2) (504 SE2d 526) (1998). And here, Kroger presented evidence that a store employee mopped the area around the front entrance, including the buggy corral, every 30 minutes. This employee testified by affidavit that he had mopped the floor within five minutes of the accident, and the floor around the entrance, including that around the buggy corral, was clean and dry. But another Kroger employee, the front-end supervisor at the time of the incident, testified during her deposition concerning her observations prior to Tina Stephens’s fall. She stated that “[t]he floor was wet, but I did not see a puddle or any substantial amount of water in one place. ... It was wet just from mopping where the water had drained off the buggies.” These inconsistencies create an issue of fact for the jury.

Other issues exist as well concerning Kroger’s knowledge of the hazard and the steps it took to protect its patrons. For example, an issue exists as to whether caution signs were placed near the buggy corral. Kroger submitted evidence that these signs were present, but Tina Stephens testified that although two “wet floor” signs were placed at the entrance to the vestibule area, “there were no ‘wet floor’ signs visible inside the main entrance or in the area where the shopping carts were located inside the store prior to or at the time I approached the carts.” Jerry Stephens similarly testified that before Tina Stephens fell, no “wet floor” signs were placed in the area where the buggies were located but that Kroger personnel placed such signs in the area after the incident occurred.

Additionally, Tina Stephens testified on deposition that after she fell, a cashier and a bag boy argued as to whether the cashier told the bag boy to “clean this mess up.” According to Stephens, the bag boy said he did clean it up, while the cashier said he did not. Although Stephens did not identify these employees during her deposition, she later testified by affidavit that she had mistakenly believed the woman to be a cashier but learned at the deposition given by this employee that she in fact was Karen Brooks, the front-end supervisor. Compare Johnston v. Grand Union Co., 189 Ga. App. 270-272 (1) (375 SE2d 249) (1988) (unidentified employee’s alleged statements about condition of door inadmissible under exception to hearsay rule for admissions against interest of employee/agent because utterer not identified). Stephens offered a reasonable explanation for any arguably contradictory testimony regarding this matter, as required by Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (2) (343 SE2d 680) (1986), and we therefore do not construe this testimony against her.

2. Factual issues also exist concerning the second prong of the Robinson test. As stated above, a plaintiff’s burden of pointing to evidence disproving his or her negligence arises only after it has been shown that the defendant had knowledge of the hazard, and the defendant presents evidence that the plaintiff’s voluntary or casual negligence proximately caused the plaintiff’s injuries. Robinson at 747-748. See also Smith v. Toys “R” Us, 233 Ga. App. 188, 190 (504 SE2d 31) (1998). Here, although Tina Stephens did not actually stop and wipe her wet shoes on the mats placed by Kroger inside the vestibule area, she stated that as she walked through this vestibule area, she watched where she was going and believed that walking on the mats would “get the water off” her shoes. We therefore cannot say as a matter of law that she failed to exercise ordinary care for her own safety under the standard set forth in Robinson. This is a question for jury resolution.

Kroger correctly argues that this court has often held that “[t]he risk of harm imposed by some accumulation of water on the floor of business premises during rainy days is not unusual or unreasonable in itself, but is one to which all who go out on a rainy day may be exposed and which all may expect or anticipate.” (Citations and punctuation omitted.) Adams v. Winn-Dixie Stores, 192 Ga. App. 892, 893 (386 SE2d 686) (1989). But here, issues of fact exist concerning Tina Stephens’s knowledge of the condition of the floor and her behavior as she walked into the store. When asked whether she knew that water had been tracked into the store, she replied, “not with [those] mats . . . right there catching it off your feet before you walked in that other entrance. Because after I walked through that . . . my mind was on getting the groceries because I had . . . been careful about the water before I walked in.” After she passed through the vestibule, she walked through the main entranceway, where she began looking at banners hung by Kroger.

Finally, although Stephens was not looking at the floor after she walked through the main entrance, an invitee is' not required, as a matter of law, “to look continuously at the floor for defects . . . since the invitee is entitled to assume that the owner/occupier has exercised reasonable care to make the premises safe 'for the invitee and continues to exercise such care while the invitee remains on the premises.” Robinson at 743. Given the fact that Tina Stephens presented evidence that she was cautious as she walked into the store and believed her feet to be dry, we cannot say that her failure to look at the floor while she pulled out her buggy is tantamount to an intentional and unreasonable exposure to a known hazard. See Robinson at 749.

Reconsideration denied March 11, 1999

John M. Hatfield, for appellants.

Clyatt, Claytt, Wallace & DeVaughn, Robert M. Clyatt, Carl G. Fulp III, for appellee.

We recognize the general rule that landowners are not insurers of invitees’ safety. See, e.g., Barksdale v. Nuwar, 203 Ga. App. 184, 185 (416 SE2d 546) (1992). But this rule does not dispense with the equally well-settled rules that summary judgment is appropriate only in plain, palpable, and undisputed cases in which no genuine issues of material fact exist. See, e.g., Hardeman v. Spires, 232 Ga. App. 694, 695-696 (503 SE2d 588) (1998); Jackson v. Camilla Trading Post, 218 Ga. App. 164, 168 (460 SE2d 849) (1995). And here, such factual questions remain for jury resolution with respect to whether Kroger had knowledge of a hazardous condition and whether Tina Stephens exercised ordinary care for her own safety. In sum, the issues in this case are simply “routine” ones, incapable of summary adjudication. Robinson at 748. We therefore reverse the trial court’s grant of summary judgment to Kroger.

Judgment reversed.

Johnson, C. J., and Barnes, J., concur.


text:
    A98A1740.
    In the Interest of C. M. et al., children.
    (513 SE2d 773)
   Smith, Judge.

This is an appeal by a mother from an order terminating her parental rights to her two minor children, C. M. and M. M. Appellant contends there was insufficient evidence to find that M. M. was deprived or that the deprivation of M. M. and C. M. was likely to continue. We disagree and affirm.

Before considering whether to enter an order terminating parental rights, the trial court must first determine whether there exists “clear and convincing evidence of parental misconduct or inability.” OCGA § 15-11-81 (a). To reach this determination, the court must find that the child is deprived within the meaning of OCGA § 15-11-2 (8) (A) due to a lack of proper parental care or control by the parent in question, that this state of affairs is likely to continue or is not likely to be remedied, and that such deprivation will or is likely to cause the child serious physical, mental, emotional, or moral harm. OCGA § 15-11-81 (b) (4) (A). If the court makes this preliminary determination based on clear and convincing evidence, termination of parental rights is authorized if the court likewise finds such action will best serve the child’s interest and needs, “including the need for a secure and stable home.” OCGA § 15-11-81 (a).

On appeal of a termination of parental rights, the reviewing court defers to the lower court in the areas of factfinding and weighing of the evidence, and we must affirm unless the appellate standard is not met. In the Interest of K. S. W., 233 Ga. App. 144, 147 (1) (503 SE2d 376) (1998). This court also views the evidence in the light most favorable to the appellee. In the Interest of A. M. V., 222 Ga. App. 528, 529 (474 SE2d 723) (1996).

So viewed, the evidence shows that in August 1994, appellant took her two-year-old son, C. M., to the Kennestone Hospital Emergency Room. He was very sick with a high fever, and E. coli bacteria, a component of human feces, were found in his bloodstream. C. M. was transferred to Scottish Rite Hospital. While alone with C. M. in his room at Scottish Rite, appellant injected the contents of a syringe, filled with a mixture of feces and urine, into C. M.’s intravenous tube. A hospital camera recorded appellant’s action. Appellant was arrested and charged with cruelty to children and aggravated assault. In April 1996, she entered a non-negotiated plea of guilty to the charges and was sentenced to seven years concurrent as to each count, with five years to be served on probation.

In late August 1994, the Juvenile Court of Cobb County entered an order placing C. M. in temporary custody of the Cobb County Department of Family & Children Services (“DFACS”). In September 1994, the court entered an order returning legal custody of C. M. to his father, directing that C. M.’s paternal grandparents retain physical custody of C. M. and his one-year-old sister, M. M. Following a deprivation hearing in January 1995, the court again awarded temporary legal custody of both C. M. and M. M. to DFACS.

In August 1996, the court entered an order extending DFACS’s custody of both children and finding clear and convincing evidence that the children were deprived. The record contains no evidence that this order was ever appealed.

In October 1996, DFACS filed a petition for termination of the parental rights of appellant and her husband. At the termination hearing, appellant testified that she injected C. M. with a used syringe at the Scottish Rite Hospital because she had been raped when she was 18; she had given up a child for adoption; her brother had died; and she was experiencing marital problems. Appellant acknowledged that she had injected C. M. once before with the same mixture and that “the whole thing was very dangerous.”

C. M. had been admitted to the emergency room approximately twenty-eight times in the first two years of his life. Aside from ear infections, no evidence was presented that C. M. had any medical problems warranting so many emergency room visits. No evidence was presented that appellant was observed injecting feces into or otherwise harming her younger child, M. M. But evidence was presented that M. M. had been admitted to the hospital approximately nineteen times in the first nine months of her life, although she had no documented medical problems other than common colds. In proportion to her age, the number of hospital emergency room visits experienced by M. M. exceeded that of C. M. Since the children were separated from appellant, neither child has had any serious medical problems.

Beatrice Yorker, an associate professor of nursing and associate provost at Georgia State University, testified concerning a condition known as Munchausen Syndrome by Proxy (MSP). After hearing testimony regarding her degrees in nursing, psychiatric nursing, and law, as well as her research and publications regarding MSP, the court, over objection, qualified her as an expert with regard to MSP.

Yorker testified that MSP is a disorder in which a parent, usually a mother, induces or fabricates an illness in a child for the purpose of obtaining medical or some other kind of attention. She stated that MSP is a form of child abuse that may take the form of falsifying illness or actively inducing illness in a child. She characterized appellant’s injection of urine and feces into C. M.’s bloodstream as a relatively common form of active induction of MSP. Marital strife is a common “trigger” for MSP, as is criticism of the mother in her parenting skills. Yorker testified that from her review of the medical records, observation of the children’s improvement upon separation from the parent, as well as “most definitively” by covert surveillance, it was her opinion that appellant fit the characteristics of MSP.

Noting that there is no record of even a single successful treatment for active induction of MSP, she testified that no treatment has been discovered for MSP. She also testified without objection to “very strong evidence” that once a child has been identified as a victim of MSP, other children are at risk for abuse. In Yorker’s opinion, MSP parents should not be allowed unsupervised access to children. Young children, particularly pre-verbal children, are more often victims of MSP, although some children continue to be abused through their teenage years.

1. The mother first contends that the evidence was insufficient to support the juvenile court’s finding that M. M. was deprived. But it is well established that, when no appeals are taken from juvenile court orders finding that a child was deprived, an appellant is bound by that finding and any challenges to those orders are not preserved for appeal. In the Interest of E. C., 225 Ga. App. 12,14-15 (482 SE2d 522) (1997). Here, the record shows no appeal of the order finding that both C. M. and M. M. were deprived. Appellant therefore is bound by that finding, and this enumeration of error is not p reserved for appeal.

2. We next consider the mother’s contention that the evidence presented at the termination hearing did not support the juvenile court’s conclusion that the deprivation of C. M. and M. M. was likely to continue. Evidence of past parental conduct resulting in deprivation may be considered in determining whether the deprivation is likely to continue and cause harm to the children. In the Interest of J. S., 232 Ga. App. 876, 879 (502 SE2d 788) (1998); A. M. V., supra, 222 Ga. App. at 531-532. Moreover, in a termination case, evidence that is one or two years old is not outdated, because there will necessarily be some passage of time between the date the children are removed from the parents’ home and the date of the termination hearing. Id. at 531. The juvenile court is not required to reunite the children with appellant in order to obtain current evidence of deprivation. E. C., supra, 225 Ga. App. at 16. Therefore, evidence of appellant’s past conduct is relevant to the determination of whether the deprivation of the children is likely to continue.

In determining that appellant’s lack of proper parental care or control is the cause of such deprivation, a court may consider many factors, including: the parent’s conviction and imprisonment for a felony having a demonstrably negative effect on his or her relationship with the child; egregious conduct or evidence of past egregious conduct of the parent toward the child or another child of a physically, emotionally, or sexually cruel or abusive nature; or an injury or death of a sibling under circumstances that constitute substantial evidence that such injury or death resulted from parental neglect or abuse. OCGA § 15-11-81 (b) (4) (B) (iii), (iv), (vi).

Ample evidence of appellant’s egregious conduct toward the children supported the trial court’s conclusion that deprivation was likely to continue. C. M. was admitted to the emergency room approximately twenty-eight times in the first two years of his life, but since appellant lost custody he has had only common childhood illnesses. Appellant acknowledged, and a video camera recorded, her injection of C. M. with a used syringe full of her own feces and urine. Although she realized that “the whole thing was very dangerous,” appellant admitted that this was not the first time she had injected C. M. with such a mixture. The deliberate placing of her son’s life in jeopardy certainly was egregious conduct; as a result, appellant pled guilty to cruelty to children and aggravated assault, and was imprisoned.

With respect to M. M., the evidence of C. M.’s abuse showed appellant’s past egregious and abusive conduct toward M. M.’s sibling, as well as an injury of a sibling with substantial evidence that appellant committed the abuse, was convicted of it, and was imprisoned. OCGA § 15-11-81 (b) (4) (B) (iii), (iv), (vi). Furthermore, evidence was presented that M. M. received emergency room treatment approximately nineteen times in the first nine months of her life, although she had no documented illnesses other than colds. This pattern ceased, as it did with C. M., when she left appellant’s custody.

The evidence established that appellant suffers from MSP. Her past egregious conduct toward C. M. established that she is an active inducer of MSP. Uncontradicted expert testimony was presented that there is no treatment available for active inducers of MSP and that appellant will always suffer from MSP. The expert also testified that appellant is likely similarly to abuse another child. Given appellant’s past egregious conduct, in conjunction with expert testimony that such conduct was likely to continue and to include other children and that there is no treatment for appellant’s condition, the court properly concluded that the children will likely be deprived in the future.

Appellant contends that the expert’s testimony was conflicting and insufficient to establish present unfitness. This court, however, does not weigh the evidence or determine the credibility of witnesses; it defers to the trial court’s factfinding unless the appellate standard is not met. K. S. W., supra, 233 Ga. App. at 147 (1). Appellant has failed to enumerate as error, to assert specifically in argument, or to cite authority for any challenge to Yorker’s qualifications or the admissibility of the evidence upon which she relied in her testimony. This issue therefore is abandoned on appeal. Schill v. A.G. Spanos Dev., 217 Ga. App. 260, 262 (457 SE2d 204) (1995).

Appellant cites the only other Georgia decision dealing with MSP and relies upon its holding, but that case is both procedurally and factually inapposite here. In the Interest of M. A. V., 206 Ga. App. 299 (425 SE2d 377) (1992), overruled on other grounds, In the Interest of J. P., 267 Ga. 492 (480 SE2d 8) (1997). In M. A. V., we found the evidence insufficient to establish that the sibling of a victim of MSP was deprived so as to support a transfer of temporary custody to DFACS. Id. at 302 (1). The appellant in M. A. V. filed a timely appeal from that custody order, in contrast to appellant here, who failed to appeal the custody order finding that M. M. was deprived and thus has not preserved that issue on appeal. See In the Interest of J. M. D., 221 Ga. App. 556, 558 (472 SE2d 123) (1996). More importantly, M. A. V. did not live with his mother at the time she abused his brother and, in fact, had never lived with her. M. A. V., supra at 300. In contrast, M. M. was living with appellant at the time she abused C. M. Finally, the only evidence of deprivation of the child in M. A. V. was the testimony from an earlier termination hearing regarding the abused sibling. Id. at 300. The mother’s rights to M. A. V. were not in issue at that time, and she had no opportunity to cross-examine witnesses with regard to M. A. V. Id. at 302 (2). Here, evidence was adduced with respect to both children. M. M.’s medical history displayed the same pattern of unexplained numerous emergency room visits as that of C. M., and an expert testified specifically with regard to the likelihood that M. M. would be a victim of MSP.

Decided March 11, 1999.

Culp & Smith, John C. Culp, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Stephanie B. Hope, Assistant Attorneys General, Sanders B. Deen, for appellee.

For these reasons, we conclude that clear and convincing evidence was presented that the deprivation caused by appellant was likely to continue and that the termination of appellant’s parental rights was in the best interests of the children.

Judgment affirmed.

Johnson, C. J., and Barnes, J., concur.

       In the same order, the court declined to terminate the parental rights of the father.


author: Beasley, Presiding Judge.

text:
    A98A1768.
    In the Interest of B. S. H., a child.
    (514 SE2d 70)
   Beasley, Presiding Judge.

How long is a window of opportunity open for a juvenile, after a juvenile court finding of delinquency and entry of a dispositional order, to file a motion to set aside or amend the judgment?

On April 10, 1996, the Juvenile Court of Gwinnett County adjudicated B. S. H. delinquent and entered an order of disposition. This resulted from the youth’s admission to all counts of two separate petitions which alleged he was guilty of reckless driving (OCGA § 40-6-390), disregarding a stop light (OCGA § 40-6-20 (a)), fleeing and attempting to elude an officer (OCGA § 40-6-395), passing in a no passing zone (OCGA § 40-6-46), and driving on the wrong side of the road (OCGA § 40-6-40). The events leading to the order occurred on December 29, 1995 when B. S. H. was age 16. The court placed B. S. H. on probation, suspended his driving license for three years, and ordered that he successfully complete several programs and satisfy certain other conditions, including payment of restitution.

On October 9, 1997, B. S. H. filed a “Motion to Withdraw Admission, or in the Alternative, Plea in Bar, Motion to Vacate, Set Aside or Amend Sentence.” The court dismissed the motion on the ground that it did not have jurisdiction to grant relief because 18 months had passed after entry of the final order. B. S. H. directly appeals that decision. The county contends the court only had jurisdiction of motions such as the one filed by B. S. H. for 30 days after the April 10, 1996 order.

Entry of a finding of delinquency together with an order of disposition in juvenile court is a final order for purposes of appeal, from which a direct appeal lies if taken within 30 days. B. S. H. did not appeal the April 10, 1996 judgment and dispositional order.

The Juvenile Court Code (Code Ann. Title 24A [OCGA Title 15, Ch. 11]; Ga. L. 1971, pp. 709-757; Ga. L. 1973, pp. 579-581, 882-889) establishes a unique court system for the protection and rehabilitation of children under 17 years of age. The General Assembly has provided that the Title shall be liberally construed to effectuate its purpose. [OCGA § 15-11-1]. The provisions of the Juvenile Court Code dealing with the commencement of proceedings [OCGA § 15-11-11], the petition . . . , the modification or vacation of orders [OCGA § 15-11-42], and other matters, indicate a legislative intent to make it a court with its own distinctive rules of procedure.

“The expressed legislative intent [behind the creation and definition of the juvenile, courts] is one of continuing jurisdiction by a juvenile court over its orders, particularly during the statutory duration of an order’s length.” Provision for continuing jurisdiction over a delinquency matter after entry of dispositional orders can be found in OCGA § 15-11-41 (a) (court may extend duration of certain dispositional orders); OCGA § 15-11-41 (p) (orders continue in force for up to two years; court may terminate its order sooner or extend duration further); and OCGA § 15-11-41 (q) (court may terminate an order of disposition prior to its expiration).

OCGA § 15-11-42 expressly provides that the court may set aside, change, modify, or vacate its orders on certain grounds. The manifest intent of the Juvenile Court Code is to give the court continuing jurisdiction of its orders.

Both parties and the court refer to the following language in In re P. S. C. in support of their positions:

A trial judge has the power during the same term of court at which a judgment is rendered to revise, correct, revoke, modify, or vacate such judgment, even upon his own motion, for the purpose of promoting justice and in the exercise of sound legal discretion. . . . This well-recognized principle is not strictly applicable to a juvenile court’s judgments, because the inherent power to modify extends only for the term in which the judgment was entered, and juvenile courts do not sit in terms. However, it is clear that a juvenile court retains its inherent power to modify its own judgments at least for the length of the statutory appeal period.

That is 30 days. Timeliness in In re P. S. C. was thereupon founded on the 30-day inherent power of courts to modify judgments, which was possible because the motion, as well as the court’s order, was filed within 30 days of the original judgment. Although the court in In re P. S. C. was not faced with a motion made outside the 30-day period, it did alert the reader to what is now OCGA § 15-11-42 and impliedly suggest that the Code section extended the power to act beyond the appeal period.

B. S. H. contends the statutory language indicates that 30 days is the minimum time available to file a motion and that there is no provision for a maximum limit. The county counters that 30 days is the maximum time available to file such a motion and relies on In the Interest of J. O. and In the Interest of M. A. L.

In the Interest of M. A. L. cites In the Interest of J. O. for the proposition that “[a]n order on . . .a motion [to modify or vacate pursuant to OCGA § 15-11-42] filed within the statutory appeal period is appealable to this court, even if the order is rendered more than 30 days from the original order sought to be vacated or modified.” That statement implies that such a motion must be filed within 30 days of the final order. The court in part based its decision that it did not have jurisdiction of the appeal on the fact that a motion to modify filed several months after the final disposition was untimely, having been filed “well outside the statutory appeal period.”

Decided March 11, 1999.

Mickey G. Roberts, for appellant.

B. S. H., pro se.

But In the Interest of J. O. clearly stated otherwise: “OCGA § 15-11-42. . . provides the vehicle for correction of juvenile court orders. It sets no time limits.” We decline to follow In the Interest of M. A. L.

Based on the intent of the legislature described above, we hold that so long as a juvenile court order is in effect and the court has not otherwise relinquished jurisdiction of the matter, a motion under OCGA § 15-11-42 is timely.

The problem here is that on November 1,1996 the juvenile court dismissed B. S. H. from probation and terminated its jurisdiction of the case. B. S. H. filed his motion almost one year later. For this different reason, the court correctly held it no longer had jurisdiction to entertain the motion.

Having made the above determinations, we can only now analyze this Court’s jurisdiction of B. S. H.’s appeal of the denial of his motion. Assuming without deciding the November 1, 1996 order could be classified as a “final judgment,” there were only two possible such judgments for the purposes of appeal: the April 10, 1996 delinquency/disposition order, and the November 1, 1996 termination order. B. S. H. did not appeal either order. No subsection of OCGA § 5-6-34 (a) authorizes direct appeal of a § 15-11-42 motion and therefore appeal may only be had by application. B. S. H. omitted the procedure for a discretionary appeal.

The appeal must be dismissed for want of jurisdiction.

Appeal dismissed.

Johnson, C. J., Pope, P. J., Andrews, Black-bum, Smith and Ruffin, JJ., concur. McMurray, P. J., Eldridge and Barnes, JJ., concur in judgment only.

Daniel J. Porter, District Attorney, Donald P. Geary, Annette S. Malena, Assistant District Attorneys, for appellee.

       OCGA § 5-6-38. See In the Interest of G. C. S., 186 Ga. App. 291 (367 SE2d 103) (1988); M. K. H. v. State of Ga., 132 Ga. App. 143, 144 (207 SE2d 645) (1974).

        English v. Milby, 233 Ga. 7, 9 (1) (209 SE2d 603) (1974).

        In the Interest of K. B., 188 Ga. App. 199, 201 (2) (372 SE2d 476) (1988) (applied to custody orders arising from deprivation proceeding); West v. Cobb County Dept. of Family &c. Svcs., 243 Ga. 425, 426 (254 SE2d 373) (1979) (jurisdiction extends for at least two years over matters regarding deprived children).

       See In the Interest of K. B., supra, 188 Ga. App. at 201. This provision establishes no time limit for a motion requesting such an order. OCGA § 15-11-42; In the Interest of K. B., supra (court had authority to modify its order of June 29, 1987 upon petition filed over four months later). See also In the Interest of J. O., 191 Ga. App. 521, 522 (382 SE2d 214) (1989) (Section 15-11-42 “sets no time limits”) overruled on other grounds, In the Interest of T. A. W., 265 Ga. 106 (454 SE2d 134) (1995).

       143 Ga. App. 887 (240 SE2d 165) (1977).

       Id. at 889 (2).

       OCGA § 5-6-38. See In the Interest of A. C. J., 211 Ga. App. 865 (440 SE2d 751) (1994).

       Supra.

       202 Ga. App. 768 (415 SE2d 649) (1992) overruled on other grounds, In the Interest of T. A. W., supra.

        In the Interest of M. A. L., 202 Ga. App. at 769.

        In the Interest of J. O., supra.

        Frederick v. State, 226 Ga. App. 540, 542 (1) (487 SE2d 107) (1997) (trial court decision affirmed if right for any reason).

       See OCGA §§ 15-11-64; 5-6-34 (a) (1); G. W. v. State of Ga., 233 Ga. 274 (210 SE2d 805) (1974) (the final judgment to be entered in a juvenile court case by a juvenile court in Georgia is a final judgment).


author: Smith, Judge. Ruffin, Judge,

text:
    A98A1902.
    FRISBEY v. THE STATE.
    (514 SE2d 453)
   Smith, Judge.

A DeKalb County grand jury indicted Steven Frisbey for possession of methamphetamine with intent to distribute and for giving a false name. After the trial court denied his motion to suppress, Frisbey waived a jury trial, and the case was presented to the trial court on the basis of stipulated facts and the evidence adduced at the hearing on Frisbey’s motion to suppress. The trial court found Frisbey guilty on both counts. Frisbey appeals, challenging the trial court’s denial of his motion to suppress evidence and asserting that his convictions must be reversed because the State failed to prove venue. We disagree and affirm.

1. In reviewing the trial court’s denial of Frisbey’s motion to suppress, we construe the evidence in favor of the court’s findings and judgment and adopt the trial court’s findings on disputed facts and credibility unless those findings are clearly erroneous. Howard v. State, 233 Ga. App. 861 (505 SE2d 270) (1998). So construed, the evidence shows that on April 7, 1997, DeKalb County Police Officer Jerry Carruth responded to a call from the manager of a fast food restaurant regarding a man who had been sitting inside for approximately five hours. Carruth approached Frisbey and asked him why he had been at the restaurant so long. Frisbey responded that he had been dropped off by his father to look for a job in the area and was waiting for his brother to pick him up. Since Frisbey appeared “extremely nervous,” Carruth asked to see his identification. In response, Frisbey took out his wallet and showed Carruth an Iowa driver’s license with the name “Joshua Paul Loose.” According to Carruth, the picture on the driver’s license did not appear to be Frisbey.

Before Frisbey put his wallet back in his pocket, Carruth noticed a second picture ID card in the wallet. Carruth asked to see the second ID card, and Frisbey produced a check cashing card with his picture and the name “Steven Ray Frisbey.” At this point, the officer believed that Frisbey had given him a false name, and he asked Frisbey to empty his pockets, but Frisbey refused to do so. Upon Carruth’s request, however, Frisbey agreed to accompany Carruth to his patrol car where Carruth ran a computer check and learned of a Cobb County warrant for Frisbey’s arrest. Carruth called DeKalb Communications and had the warrant verified. When the officer once again asked his name, Frisbey conceded that his real name was Steven Frisbey. Carruth arrested Frisbey both on the Cobb County warrant and for giving a false name. Once Frisbey was placed under arrest, Carruth searched him and found 11.8 grams of methamphetamine in his pockets, along with two plastic bags and a pair of scales.

Frisbey argues that the trial court erred in refusing to suppress evidence of the methamphetamine since the search that yielded the drugs was predicated upon an unlawful detention. According to Frisbey, the fact that he was sitting in the restaurant for five hours was not sufficiently suspicious activity to warrant questioning and subsequent detention by Carruth.

As an initial matter, we must address whether Carruth’s questioning of Frisbey violated the Fourth Amendment. In resolving this issue,

[t]he first question is whether the initial contact between [Frisbey] and Officer [Carruth] constituted a seizure. . . . Contact between police and citizens implicates no Fourth Amendment interest unless in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.

(Citation and punctuation omitted.) Pickens v. State, 225 Ga. App. 792, 793 (1) (a) (484 SE2d 731) (1997).

A seizure does not occur simply because a police officer approaches an individual and asks a few questions. Even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual as long as the police do not convey a message that compliance with their request is required; and so long as a reasonable person would feel free to disregard the police and go about his business, the encounter is consensual and no reasonable suspicion is required.

(Citation omitted.) McGaughey v. State, 222 Ga. App. 477, 478 (474 SE2d 676) (1996). Carruth’s questioning of Frisbey did not violate the Fourth Amendment unless Frisbey reasonably believed that he was not free to leave. See Pickens, supra.

In this case, the evidence does not support Frisbey’s contention that he was not free to leave the restaurant or that he felt compelled to answer Carruth’s questions. The evidence shows that Frisbey willingly produced two separate picture IDs with two different names on them. Furthermore, Frisbey’s refusal to empty his pockets at Carruth’s request suggests that Frisbey did not feel compelled to respond to the officer’s inquiries.

Carruth did not search Frisbey until after he had been arrested. Under OCGA § 17-5-1 (a), when an officer-makes a lawful arrest, he may reasonably search the immediate presence of the arrested person. See State v. Nichols, 225 Ga. App. 609, 612 (2) (484 SE2d 507) (1997) . In doing so, nothing precludes the officer “from discovering or seizing . . . any item, substance, object, thing, or matter, the possession of which is unlawful, or . . . which is tangible evidence of the commission of a crime against the laws of this state.” OCGA § 17-5-1 (b). The trial court therefore did not err in refusing to suppress evidence of the methamphetamine found in Frisbey’s pockets.

2. In his second enumeration of error, Frisbey asserts that the State failed to establish venue. He did not make venue an issue at trial, however. Although Graves v. State, 269 Ga. 772 (504 SE2d 679) (1998) states that the filing of a not guilty plea preserves a defendant’s appellate challenge to venue, id. at 774 (1), that case also recognizes the general rule that “when the evidence is not conflicting and when no challenge to venue is raised at trial,” slight evidence will be sufficient to prove venue. Id. at 773. See also Minter v. State, 258 Ga. 629 (373 SE2d 359) (1988); Joiner v. State, 231 Ga. App. 61 (497 SE2d 642) (1998).

At least slight evidence of venue was presented here. During the motion to suppress hearing, Officer Carruth testified that he worked for DeKalb County Public Safety and that after he responded to the call concerning Frisbey, he contacted DeKalb Communications to verify the existence of the Cobb County warrant. Under Joiner, supra, and the cases cited therein, the State is entitled to an inference that Carruth acted within his territorial jurisdiction when he investigated the incident and ultimately arrested Frisbey.

The dissent attempts to distinguish Minter, supra, cited in Joiner, concluding that the police officer’s employer in Minter “was not the only evidence of venue relied upon by the Supreme Court” because in that case the State also showed “that the victim was taken to Griffin-Spalding County Hospital, and the trial court took judicial notice that Griffin is wholly within Spalding County.”

The trial court in Minter did take judicial notice that Griffin is wholly within Spalding County. Id. at 629-630. But this was important because the police department of the City of Griffin investigated the incident. Here, judicial notice concerning the county was not necessary, because the DeKalb County Police investigated. Furthermore, the taking of the victim in Minter to Griffin-Spalding Hospital does not further our analysis of the venue issue in this case. Evidence that a victim was taken to a particular hospital does not necessarily show that the crime occurred in the county where the hospital is located; it is possible that victims would be taken to hospitals in different counties from those where the crimes occurred, depending on the proximity of the hospital to the place of injury. Here, as in Minter, “no evidence conflicts with the conclusion that the crime was committed in [DeKalb] County.” Id. at 630 (1). The trial court did not err in denying Frisbey’s motion to suppress.

Judgment affirmed.

Johnson, C. J., McMurray, P. J, Pope, P. J, Beasley, P. J., Andrews, Blackburn, Eldridge and Barnes, JJ., concur. Ruffin, J., dissents.

Ruffin, Judge,

dissenting.

I dissent for the reasons stated in my dissent in Joiner v. State, 231 Ga. App. 61 (1) (497 SE2d 642) (1998).

In this case, the only evidence “proving” venue in DeKalb County was the police officer’s testimony that: (1) he worked for DeKalb County Public Safety; (2) he responded to a call “at McDonald’s on Evans Mill and 1-20”; and (3) he contacted “DeKalb Communications” to verify the existence of the Cobb County warrant. Accordingly, I cannot agree that this evidence is sufficient to prove venue beyond a reasonable doubt.

Our Supreme Court has made clear that “when the evidence is not conflicting and when no challenge to venue is raised at trial, slight evidence is sufficient to prove venue.” Minter v. State, 258 Ga. 629 (1) (373 SE2d 359) (1988). Nevertheless, in Graves v. State, 269 Ga. 772, 773-774 (1) (504 SE2d 679) (1998) the Supreme Court reiterated that “[v]enue is a jurisdictional fact that must be proved by the prosecution beyond a reasonable doubt. . . . When there is insufficient evidence of venue, the verdict rendered is contrary to law and without sufficient evidence to support it.” Graves, supra at 773 (1). In other words, the “slight evidence” rule was not meant to abrogate the State’s burden of proving every element of the crime alleged, including venue, beyond a reasonable doubt.

What constitutes slight evidence? This Court has repeatedly held that the street address is insufficient to prove venue. Waller v. State, 231 Ga. App. 323, 326 (498 SE2d 362) (1998) (physical precedent only); Clark v. State, 213 Ga. App. 313, 315 (3) (444 SE2d 806) (1994) (physical precedent only); Patterson v. State, 157 Ga. App. 233, 234 (276 SE2d 900) (1981). Consequently, the evidence that the incident occurred at Evans Mill and 1-20 does not establish venue.

In Joiner, supra, a majority of this Court held that slight evidence of venue may exist when a law enforcement officer testifies regarding which county he works for. The majority stated that “the State is at least entitled to an inference that the officer acted within his territorial jurisdiction.” (Punctuation omitted.) Id. at 61. However, this holding overly minimizes the State’s burden of proof. “[E]vidence showing only a bare suspicion is not sufficient. Testimony constituting mere surmise or conjecture most certainly lies within this latter category.” (Citations and punctuation omitted.) Brinkworth v. State, 222 Ga. App. 288, 290 (474 SE2d 9) (1996) (Ruffin, J., dissenting).

Decided March 11, 1999.

Paul J. McCord, for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, Assistant District Attorney, for appellee.

Joiner relied upon the Supreme Court’s decision in Minter, supra, for the proposition that evidence of which county the investigating officer worked for is sufficient to prove venue. Joiner, 231 Ga. App. at 62. However, in Minter, the police officer’s employer was not the only evidence of venue relied upon by the Supreme Court. In addition, the State established that the victim was taken to GriffinSpalding County Hospital, and the trial court took judicial notice that Griffin is wholly within Spalding County. Minter, 258 Ga. at 629-630.

Although Graves does not address what evidence the State must produce to establish venue, it does remind us that the State must prove venue beyond a reasonable doubt. Allowing the State to prove venue “by simply showing that the crime was investigated by an officer of the forum county” improperly absolves the State of its burden to prove venue. Hunter v. State, 191 Ga. App. 219, 221 (381 SE2d 525) (1989) (McMurray, P. J., dissenting). Consequently, I believe we should overrule Joiner and conclude that, to establish venue beyond a reasonable doubt, the State must do more than merely show the forum county for which the investigating officer worked.

Where venue is not established by the State, any ensuing judgment is void, although reversal of a conviction on this basis does not prevent retrial in a court where venue is proper and proven. Because the only evidence of venue in this case constituted mere conjecture, I believe the conviction should be reversed.

(Citations and punctuation omitted.) Accordingly, I dissent from the majority holding in Division 2. Brinkworth, supra at 291.


author: Blackburn, Judge.

text:
    A99A0229.
    STEWART v. THE STATE.
    (513 SE2d 778)
   Blackburn, Judge.

Michael Stewart appeals his conviction for trafficking in methamphetamines, following a jury trial, contending that the trial court improperly denied his motion to suppress evidence of both incriminating statements made by him and drugs found at his place of business following an allegedly unlawful arrest. For the reasons set forth below, we find that Stewart’s arrest was proper and affirm his conviction.

When we review a trial court’s decision on a motion to suppress, the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them.

(Punctuation omitted.) Jester v. State, 229 Ga. App. 490, 492 (2) (494 SE2d 284) (1997).

Viewed in this light, the record reveals that Officer Mike Overbey, Officer Robert Smith, Officer Mark Whitwell, and Glenda Manry, Stewart’s probation officer, went to Stewart’s automobile paint shop on the basis of information that drugs were being sold and used at that location. Initially, the officers intended to exercise a search clause to which Stewart had agreed as a condition of the probation he was then serving. However, as the officers approached Stewart’s shop, which was located just behind his residence, Stewart and another individual fled from a side entrance, carrying something in their hands. The officers pursued, and, after detaining Stewart, found a plastic container containing methamphetamines and weighing scales which Stewart, after being informed of his Miranda rights, admitted were his property.

Stewart argues on appeal that both his statements and the drugs should have been suppressed because the officers violated his Fourth Amendment rights and had no right to pursue him onto the curtilage of his property once he started running away from them. This argument is untenable. The officers approached the paint shop located behind Stewart’s home as would any other visitor or customer, and, as such, no Fourth Amendment protection was triggered at that point. See Jenkins v. State, 223 Ga. App. 486, 487-488 (1) (477 SE2d 910) (1996). Moreover, as a general rule, there is a lesser expectation of privacy in commercial buildings than private ones. See Banks v. State, 229 Ga. App. 414, 415 (2) (493 SE2d 923) (1997), overruled on other grounds, Calbreath v. State, 235 Ga. App. 638 (510 SE2d 145) (1998). Then, before the officers could even knock at the door of the shop, Stewart and his compatriot attempted to flee. “The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow ... a criminal to escape.” (Punctuation omitted.) Stiggers v. State, 151 Ga. App. 546, 547 (260 SE2d 413) (1979). Therefore, in this case where information regarding drug sales on the premises had been received, the officers legally approached Stewart’s place of business, pursued Stewart, took his statements, and collected the evidence he admitted that he had discarded.

Decided March 11,1999

Virgil L. Brown & Associates, Larkin M. Lee, for appellant.

Tommy K. Floyd, District Attorney, Sandra A. Graves, Assistant District Attorney, for appellee.

Stewart further contends that his arrest was unlawful because it was made pursuant to an illegal search, purportedly authorized as a condition of his probation. This argument is inapposite to this case, however, as Stewart and his compatriot attempted to evade the officers before any such probationary search could be conducted. Therefore, Stewart’s arguments that the officers failed to comply with the guidelines set out for this probationary search are irrelevant to the outcome of this appeal.

Judgment affirmed.

Beasley, P. J, and Barnes, J., concur.


text:
    A99A0371.
    MOORE v. THE STATE.
    (514 SE2d 73)
   Blackburn, Judge.

Basil Lavoid Moore pled guilty to armed robbery and was sentenced to ten years to serve and ten years probation. Moore appeals the trial court’s sentence, contending that it erred in automatically refusing to sentence the defendant under the First Offender Act, OCGA § 42-8-60 et seq. As the facts in the record do not support Moore’s enumeration of error, we affirm.

Decided March 11, 1999.

Douglas C. Rogers, for appellant.

J. David Miller, District Attorney, Mark E. Mitchell, Assistant District Attorney, for appellee.

Moore contends that our decision in Jones v. State, 208 Ga. App. 472 (431 SE2d 136) (1993) requires reversal. In Jones, the trial judge stated, in response to a request for first offender treatment, “I have never granted a first offender. I take the position that once you get to the Superior Court, this is a big folks’ court, and I don’t use the first offender treatment. Never have, never intend to.” (Punctuation omitted.) Id. We determined that, although the application of the first offender treatment is in the trial court’s discretion, the trial judge’s complete and uncompromising refusal to consider that option in any circumstance was a failure to exercise such discretion. Id. at 473. Therefore, we vacated the sentence and remanded the case with the direction that the trial court consider first offender treatment. Id.

In the present case, the record does not reflect a mechanical sentencing formula, compare Jones, nor does the record show a failure to consider first offender treatment. It merely reflects a decision not to sentence Moore under such discretionary sentencing provisions. We find no abuse of discretion.

Judgment affirmed.

Beasley, P. J., and Barnes, J., concur.

       We note that the legislature amended OCGA § 17-10-6.1 effective March 27, 1998, to disallow the use of the first offender treatment for the conviction of a serious violent felony, including armed robbery. This amendment does not apply to Moore’s sentence as the armed robbery was committed on September 18, 1997, and he entered his guilty plea on March 6, 1998.


text:
    A99A0382.
    SWISS BANK CORPORATION v. THOMAS, CONNER & McDONALD, P.A. et al.
    (514 SE2d 68)
   Blackburn, Judge.

Swiss Bank Corporation appeals from the trial court’s order in which it denied Swiss Bank’s motion for summary judgment and granted summary judgment to defendants Jerry Thomas, Jr., Larry Conner and Diana McDonald (defendants), finding that defendants had no personal liability under a sublease of commercial office space. As defendants did not personally participate in the sublease transaction so as to become individually liable under OCGA § 14-10-7 (b), we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conelusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Punctuation omitted.) Taylor v. Gelfand, 233 Ga. App. 835 (505 SE2d 222) (1998).

Viewed in this light, the evidence shows that defendants formed Thomas, Conner & McDonald, P.A., a Georgia Professional Association (the Association), on September 6, 1991. Each was on the Board of Governors for the Association. On September 7,1991, the Association entered into an agreement with Swiss Bank to sublease office space at 2300 Marquis Two Tower. The sublease, drafted by Swiss Bank, provided: “THIS SUBLEASE, dated this 7th day of September 1991, [is] by and between SWISS BANK CORPORATION (hereinafter referred to as ‘Tenant’), and THOMAS, CONNER & MCDONALD, PA. (hereinafter referred to as ‘Subtenant’).” In addition, the executory paragraph identified the Tenant as Swiss Bank Corporation and the Subtenant as Thomas, Conner & McDonald, P.A. The signature lines prepared by Swiss Bank for defendants were immediately below the heading “Subtenant: Thomas, Conner & McDonald, P.A.” Defendants did not indicate by their signatures that they were signing for the Association. Beginning in August 1992, the Association defaulted under the sublease. The trial court determined that the Association was liable under the sublease, but that defendants were not individually liable.

Swiss Bank contends the trial court erred by failing to find that defendants had personally participated in the sublease, thereby triggering liability under OCGA § 14-10-7 (b). Generally, OCGA § 14-10-7 (b) limits the liability of the members of a professional association:

[T]he members or shareholders of any professional association organized pursuant to this chapter shall not be individually liable for the debts of, or claims against, the professional association unless such member or shareholder has personally participated in the transaction for which the debt or claim is made or out of which it arises.

The personal participation which triggers individual liability is not defined by the Act.

Although Swiss Bank urges this Court to find that defendants’ acts of negotiating the sublease and signing the sublease (without denoting that each signature was in a representative capacity) constitutes personal participation in the transaction, we decline to follow this reasoning. With regard to the negotiations, an association, like a corporation, can only operate through the actions of individuals. See Earnest v. Merck, 183 Ga. App. 271 (358 SE2d 661) (1987). Swiss Bank’s interpretation would render OCGA § 14-10-7 (b) meaningless, as members would always be individually liable for any action taken by the Association. Rather, OCGA § 14-10-7 (b) protects an association member who is acting in a representative capacity from individual liability for claims against the association. See Rodriguez v. Miranda, 234 Ga. App. 779, 784 (4) (507 SE2d 789) (1998). This interpretation is supported by OCGA § 14-10-18 which provides that a professional association is governed generally by all laws applying to corporations which are not in conflict with the Georgia Professional Association Act. Thus, as with corporations, we should look to whether the individual members were acting in a representative capacity.

Decided March 11, 1999.

Holland & Knight, Scott L. Bonder, James H. Rollins, for appellant.

Accordingly, in Rodriguez, supra, this Court held it was error to hold the professional association member who signed an employment agreement on behalf of the association individually liable for breach of that agreement. In that case, Rodriguez signed the agreement without indicating by his signature that he was signing in a representative capacity. However, the agreement itself clearly indicated that the true party to the agreement was the association, while Rodriguez was merely acting as its representative.

In the present case, we find that defendants were acting in a representative capacity when they signed the sublease. The parties to the agreement knew the sublease was with the Association. The sublease expressly stated that it was between Swiss Bank and Thomas, Conner & McDonald, P.A. Although defendants signed the sublease without indicating the signatures were in a representative capacity, the sublease clearly stated the parties were Swiss Bank and Thomas, Conner & McDonald, PA. See Rodriguez, supra. Moreover, even if we had found the executory paragraph ambiguous, since the sublease was drafted by Swiss Bank we are bound to construe the agreement against it. Western Contracting Corp. v. State Hwy. Dept., 125 Ga. App. 376 (187 SE2d 690) (1972). We cannot agree with Swiss Bank’s attempt to impose liability on defendants individually for their participation as members of the Association. The trial court properly found defendants were not individually liable for the Association’s breach of the sublease.

Judgment affirmed.

Beasley, P. J., and Barnes, J., concur.

DeLong, Caldwell & Wisebram, Earnest H. DeLong, Jr., Steven R. Wisebram, for appellees.

       Larry Conner was President, Diana McDonald was Vice President, and Jerry Thomas was Secretary/Treasurer.


text:
    A99A0704.
    BROWNING v. THE STATE.
    (513 SE2d 779)
   Blackburn, Judge.

James Franklin Browning appeals his conviction, following a jury trial, for theft by taking, contending (1) that the evidence was insufficient to support the verdict against him and (2) that the trial court erred in denying his motion for a mistrial after the introduction of improper character evidence. For the reasons set forth below, we affirm.

1.
On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Browning] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The . . . verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Punctuation omitted.) Kovacs v. State, 227 Ga. App. 870 (1) (490 SE2d 539) (1997). See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

On the morning of March 2, 1997, William Crowder, who was staying at the Downtowner Motor Lodge in Dalton, Georgia, started his car and then returned to his hotel room while the engine warmed up. While Crowder was inside, a man entered Crowder’s car and began to drive away. Running outside, Crowder caught a side view of the thief, whom he described as wearing glasses and having a receding hairline. Fanny Higgins, a cleaning lady on duty at the time of the theft, witnessed Browning, who was wearing glasses, leave Room 273 of the motel, enter Crowder’s car and drive it away. Renee Barberi, the motel’s clerk, confirmed that Room 273 was leased to Browning on the date of the theft. Later that day, Officer Mike Reece arrested Browning for driving under the influence after he discovered him erratically driving Crowder’s car in Valdosta. Prior to Reece’s discovery of the theft in Dalton, Browning volunteered at the time of his DUI arrest that he did not know that the car was stolen. This evidence was sufficient to support Browning’s conviction for the theft of Crowder’s car.

Decided March 11, 1999.

Michael A. Corbin, for appellant.

Kermit N. McManus, District Attorney, Matthew A. Rankin, Assistant District Attorney, for appellee.

2. During trial, Investigator Thomas Phillips inappropriately testified that Browning had been arrested for DUI, thereby placing Browning’s character in evidence. Browning immediately moved for a mistrial, which the trial court denied. The trial court then gave the jury curative instructions in which it told the jury not to give any consideration to the DUI charge.

Whether to grant a mistrial based on improper character evidence is within the discretion of the trial judge. In reviewing the trial court’s decision, an appellate court may consider the nature of the statement, the other evidence in the case, and the court’s and counsel’s action in dealing with the impropriety. We have previously held that curative instructions [are] an adequate remedy when witnesses improperly placed the defendant’s character into evidence by testifying about his prior convictions or criminal acts. In this case, the [investigator’s] reference to [the DUI charge] appears to be inadvertent and the trial judge promptly instructed the jury to disregard the [investigator’s statement]. Under these circumstances, we conclude that the trial court did not abuse its discretion in deciding to give [curative instructions] to the jury rather than grant a mistrial.

(Footnotes omitted.) Sims v. State, 268 Ga. 381, 382 (2) (489 SE2d 809) (1997).

Judgment affirmed.

Beasley, P. J., and Barnes, J., concur.


text:
    A98A2105, A98A2238.
    HIXSON v. HICKSON (two cases).
    (512 SE2d 648)
   Smith, Judge.

Henry Parker Hixson filed a complaint against Alfonso Hickson and the ABC Taxi Cab Company for damages arising out of an automobile collision. An individual named Alfonso Hicks was served with a copy of the summons and complaint at an address different from that recited in the complaint; no explanation appears in the record for this discrepancy. Hicks failed to answer the complaint, and Hixson filed a motion for default judgment.

The case was called for trial on the issue of damages, and the trial court entered a “Final Order Denying Plaintiff’s Suit for Damages.” In this order, the trial court found that “the plaintiff failed to prove that he was injured as a result of the automobile collision, and failed to adequately prove any alleged damages to the Court. Therefore, based on the foregoing, the Court hereby DENIES plaintiff’s request for damages.” Hixson’s motion for new trial was denied.

Hixson then filed a “Motion and Brief for an Enlargement of Time in Which to File Certification of the Record” combined with a “Motion for Certification of the Record.” He also filed a document styled “Certification of the Record” and “Transcript” containing an account of the trial, which appears to be an attempt to prepare a transcript from recollection pursuant to OCGA § 5-6-41 (c). The trial court denied the motion to enlarge time and to certify the transcript from recollection.

In Case No. A98A2105, Hixson appeals the final order and the denial of his motion for new trial, asserting 15 enumerations of error. In Case No. A98A2238, he appeals the denial of his motion for enlargement of time and to certify the transcript. Finding no error, we affirm.

1. First, we note that no transcript of the trial was prepared, and the trial court declined to certify the proposed transcript from recollection. “Accordingly, in the absence of either a transcript or an agreed statement of the events at trial, see OCGA § 5-6-41 (f), we must presume the trial judge ruled correctly on all issues presented and that the evidence was sufficient to support the judgment. [Cits.]” Hamm v. Willis, 201 Ga. App. 723 (1) (411 SE2d 771) (1991). Hixson’s brief contains numerous assertions regarding what transpired at trial, as well as affidavits and other documents never made part of the record below. “This court cannot consider the factual assertions of the parties appearing in briefs when such evidence does not appear on the record. Moreover, parties cannot supplement the record merely by attaching matters to or reciting matters in their briefs.” (Citations and punctuation omitted.) State v. Ganong, 221 Ga. App. 250 (470 SE2d 794) (1996).

2. In Case No. A98A2238, appellant’s second appeal, he raises for the first time the contention that venue was improper because the defendant was served in Fulton County and the trial took place in DeKalb County. But “[a] defense of improper venue is waived unless raised in the answer or by motion. OCGA § 9-11-12 (b) (3) and (h) (1) (B).” Congress Re-Ins. Corp. v. Archer-Western Contractors, 226 Ga. App. 829, 832 (3) (c) (487 SE2d 679) (1997). Appellant filed this action, never dismissed it or moved for a transfer under Uniform Superior Court Rule 19, and never raised the issue of venue until the second appeal from the trial court. He therefore has waived any claim of improper venue.

Decided February 17, 1999

Reconsideration denied March 12, 1999

Arthurlyn Combs-Hixson, for appellant.

Henry P. Hixson, pro se.

Alfonso Hicks, pro se.

3. Hixson also complains that the trial court denied him a court reporter in violation of OCGA § 5-6-41. But in the order denying Hixson’s motion to enlarge time and to certify the transcript from recollection, the trial court explicitly found that “[p]laintiff declined to have the hearing transcribed though a court reporter was present at the call of the calendar and made available to the plaintiff.” While Hixson attempted to attach affidavits to his brief contesting this finding, as noted above, affidavits attached to briefs are neither evidence nor part of the record. It is also clear that “[w]hile OCGA § 5-6-41 (j) provides that any party in a civil case may, as a matter of right, have a case reported at his expense, it is not incumbent upon the trial judge to arrange for the official reporter to take down the evidence at such a hearing. Moreover, the law does not mandate that every civil case be reported.” (Citations and punctuation omitted.) Quarterman v. Weiss, 212 Ga. App. 563 (1) (442 SE2d 813) (1994).

4. Because Hixson’s remaining enumerations of error are not supported by argument or citation of authority, they are deemed waived. Court of Appeals Rule 27 (c) (2).

Judgments affirmed.

Johnson, C. J, and Barnes, J., concur.


author: Andrews, Judge. Beasley, Presiding Judge,

text:
    A98A2141.
    EVANS v. EVANS.
    (514 SE2d 74)
   Andrews, Judge.

Fawn Evans, widow of Steve Evans who died testate on November 14, 1996, appeals from the trial court’s denial of her petition for year’s support.

Evans’ will, filed for probate on January 3,1997, left his estate to his children and excluded appellant, stating that he had filed for divorce. Steven Z. Evans was the only child still a minor at the time, and the will provided that Jeffery Evans, another of Evans’ sons, would be executor of the will and testamentary guardian of the property of the minor child.

Caveats were filed to the will by the minor’s mother, Zabic, and by the court-appointed guardian of the minor, objecting to Jeffery Evans as executor. These caveats were denied by the court and the will admitted to probate by order of April 25, 1997. That order further directed that the executor “shall not distribute any estate property belonging to [the minor] without obtaining prior written authorization from [the] Court.”

On November 12, 1997, Fawn Evans filed her application for 12 months’ support pursuant to OCGA § 53-5-2 et seq. Prior to this filing, Jeffery Evans had paid all the estate’s debts and distributed shares of the estate to all the heirs except the minor. After the application was filed, Jeffery Evans purchased a cashier’s check payable to the minor in the amount of his share, $45,742.51, but did not deliver it due to the court’s order requiring authorization.

On December 12, 1997, Zabic filed her Motion for Inquiry by the Court as to Distribution of Estate Property Belonging to Steven Zachary Evans. No application for year’s support was filed on behalf of the minor although the statute provides for such. OCGA § 53-5-2 (b); Hunnicutt v. Hunnicutt, 180 Ga. App. 798, 801 (1) (350 SE2d 770) (1986); see Outlaw v. Outlaw, 121 Ga. App. 284, 286 (7) (173 SE2d 459) (1970).

The court then entered the order here appealed, finding that there were no assets left in the estate from which to pay the year’s support because “[o]nce the shares of the estate were determined and distributed to the other beneficiaries, the executor no longer held the remaining share as part of the decedent’s estate, but on behalf of the minor’s estate. In essence, Jeffery Evans held the legal title to the property, but the beneficial interest belonged to Steven Zachary Evans, making Jeffery Evans the trustee of an implied trust.”

“[Entitlement to a year’s support award is a matter of status. . . . When one establishes that he or she is the spouse of the deceased, eligibility for year’s support is also established. The amount of the award remains as a separate inquiry.” Gentry v. Black, 256 Ga. 569, 570 (351 SE2d 188) (1987). That the couple has separated or is in the process of divorcing does not negate this right. Hunnicutt, supra; Knowles v. Knowles, 125 Ga. App. 642, 648 (5) (188 SE2d 800) (1972).

At the time of the filing of Fawn Evans’ application, the estate still contained $45,742.51. No action had been taken by the executor to obtain the court’s permission to distribute these funds to the minor and they were still part of the deceased’s estate. See Nuckolls v. Merritt, 216 Ga. 35, 36 (114 SE2d 427) (1960).

That the executor attempted to designate the funds for the minor by purchasing the cashier’s check after the application was filed is of no avail.

OCGA § 53-5-14 provides:

The right of a surviving spouse or minor child to a year’s support from the estate of a decedent shall be barred by a sale or conveyance made under authority of a court of competent jurisdiction or under power in a will, by an administrator or executor of the estate, prior to the setting apart of the year’s support; provided, however, that the sale or conveyance shall bar the year’s support and the rights thereto only as to the property sold or conveyed.

In Anderson v. Groover, 242 Ga. 50, 51 (247 SE2d 851) (1978), the Supreme Court determined that this statute

was intended to offer protection to third party purchasers of property in an estate against claims for year’s support; it was not intended to exempt devises and legacies from year’s support. Were it to be so construed, it would be a mechanism by which all the assets in an estate could escape a levy of year’s support. This would be contrary to the statutory scheme establishing year’s support and the public policy of this state which it implements. See [OCGA § 53-5-2] et seq.; [cit.].

“Whenever a year’s support is carved out of property disposed of by will, the intention of the testator is defeated pro tanto. . . . [T]he right to a year’s support overrides the testator’s instructions.” Burch v. Harrell, 57 Ga. App. 514, 516-518 (1) (196 SE 205) (1938). See also Richards v. Wadsworth, 230 Ga. App. 421 (496 SE2d 535) (1998).

Therefore, since even a deed of assent to devise realty, involved in Anderson, supra, will not preclude the grant of a year’s support from the property affected, neither will the mere purchase of a cashier’s check after the filing of the application.

Similarly, the imposition of an implied trust on assets of an estate under these circumstances cannot be sustained. To do so would allow the heirs to defeat the vested right of a year’s support upon a determination of the respective shares due to each even if they had not been distributed.

Therefore, Fawn Evans was entitled to a year’s support, and this matter is remanded to the trial court for further proceedings.

Judgment reversed.

Pope, P. J, concurs. Beasley, P. J., concurs specially.

Beasley, Presiding Judge,

concurring specially.

I agree that the judgment of the probate court should be reversed but not for the reason stated.

The probate court is not a court of equity and thus did not have the power to impress a trust on the property still held in the executor’s hands. Evans v. Little, 246 Ga. 219, 221 (271 SE2d 138) (1980) (superior court, not probate court, has equity jurisdiction); see Logan v. Nunnelly, 230 Ga. 588 (198 SE2d 321) (1973) (probate court does not have general equity jurisdiction). The only reason the executor held the property is that he had not yet received permission of the probate court to disburse it to the guardian of the minor who was entitled to it. Indeed, it appears that a court of equity could find that only the legal title remained in the executor and that the beneficial title belonged to the minor, as it had already been identified as his and set apart for him, and it was undisputed that he was to share in his father’s estate to this extent along with the other children. The others had all received their legacies because they were adults and no further court supervision was called for. But the minor’s share was not yet formally “conveyed” to him for the sole reason that he was a minor. As a result, the majority holds, he will be deprived of it in favor of a late-filed petition for year’s support by his father’s estranged wife. But whether equity would consider the circumstances to constitute a “conveyance” as contemplated by OCGA § 53-5-14 could be addressed only by a court having equity jurisdiction.

Secondly, the probate court could not decide the issue of disputed ownership because it involves title to the property.

In Georgia, it is well-settled that probate courts do not have jurisdiction to adjudicate conflicting claims of title to real or personal property. Ga. Const. 1983, Art. VI, Sec. III, Par. I; OCGA § 15-9-30 et seq.; Dix v. Dix, 132 Ga. 630 (64 SE 790) (1909); Johnson v. Johnson, 199 Ga. App. 549 (1) (405 SE2d 544) (1991).

In re Estate of Adamson, 215 Ga. App. 613 (1) (451 SE2d 501) (1994). See McClure v. Mason, 228 Ga. App. 797, 798 (1) (493 SE2d 16) (1997) (“the probate court could only award Mrs. Mason property belonging to her husband’s estate and had no jurisdiction to determine whether the property was vested in her, [the decedent’s] estate or in the bankruptcy estate”); Morris v. Morris, 123 Ga. App. 116-117 (179 SE2d 536) (1970) (probate court “has no jurisdiction to try and determine conflicting claims to property”).

Decided March 12, 1999.

H. Patterson Garner, for appellant.

Jeffery D. Evans, pro se.

Now the question is, what should have been done? The probate court decided the issue as a “conclusion of law” but should have transferred the case to the superior court for resolution. That was the course of action taken in Anderson v. Groover, 242 Ga. 50 (247 SE2d 851) (1978), when an issue was made about whether certain property was to be considered conveyed because it was the subject of a deed of assent. The Supreme Court, on appeal from the superior court which decided the question, ruled that the assent to devise was not a “conveyance.” Of course, we have a different question here, but it is still a question of ownership, which was made an issue in the probate court by the filing of Motion for Inquiry, the answer of the child’s guardian ad litem objecting to the widow’s petition for year’s support, and the executor’s listing of “disbursements” as including “Check — Steven Zac[h]ary Evans.” These three individuals took the position that the money was already the child’s before the year’s support to the estranged widow could be awarded.

The Georgia Constitution provides: “Any court shall transfer to the appropriate court in the state any civil case in which it determines that jurisdiction or venue lies elsewhere.” Ga. Const. of 1983, Art. VI, Sec. I, Par. VIII. The uniform rules of court (Uniform Superior Court Rule 19.1) provide for it. Johnson v. Hamilton, 211 Ga. App. 268, 269 (1) (438 SE2d 715) (1993), held:

If the probate court lacks jurisdiction over a claim or counterclaim, the proper procedure is not to dismiss the case but timely to “transfer to the appropriate court in the state any civil case in which it determines that jurisdiction or venue lies elsewhere.” [Cit.]

Cf. Dept. of Human Resources v. Long, 217 Ga. App. 763, 766 (458 SE2d 914) (1995) (superior court may transfer case to probate court to answer question of competency). Following this procedure would avoid the waste in time, resources, expenses and the inefficiencies of case administration which would result in the inevitability of a separate superior court action after the judgment required by the majority is entered.

       The estate consisted of $300,000 from a settlement with the testator’s prior employer.

       Although there is no copy of the caveat filed by Zabic in the record, the trial court’s order of April 25 states that one was filed.

       This case is controlled by the pre-1998 version of the year’s support statutes. Richards v. Wadsworth, 230 Ga. App. 421, 422 (2) (496 SE2d 535) (1998).


author: Johnson, Chief Judge.

text:
    A99A0797.
    GUNN v. THE STATE.
    (514 SE2d 77)
   Johnson, Chief Judge.

Rhonda Gail Gunn appeals from the superior court’s order affirming her conviction for driving under the influence of alcohol entered in the Probate Court of Butts County. See OCGA § 40-6-391 (a) (1). Gunn contends the trial court erred in admitting into evidence the Intoxilyzer 5000 certificate of inspection, her statements, and the results of her field sobriety tests. We affirm.

1. Gunn argues that the trial court erred in denying her motion to suppress the results of her field sobriety tests and the statements she made in response to the investigating officer’s questions because she was in custody and had not been read her Miranda warnings. We disagree.

When reviewing a trial court’s decision on a motion to suppress, this court’s responsibility is to ensure that there was a substantial basis for the decision. The evidence is construed most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous. Further, since the trial court sits as the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if there is any evidence to support them.

(Citations omitted.) Morgan v. State, 195 Ga. App. 732, 735 (3) (394 SE2d 639) (1990).

On February 1, 1998, a trooper with the Georgia State Patrol responded to a single car accident on Interstate 75 in Butts County. He observed skid marks leading from the road to a blue Nissan which had come to rest about 50 feet off the roadway and down an embankment. A few minutes later, a deputy with the Butts County Sheriff’s Office arrived with Gunn in the back seat of his patrol car. The deputy had transported Gunn from a pay phone back to the scene of the accident. The trooper noticed that Gunn was dirty, likely from having climbed up the embankment, and had a strong odor of an alcoholic beverage about her. The trooper testified that he had not placed Gunn under arrest when he began questioning her. Further, he did not believe the deputy had arrested Gunn but was simply assisting her in getting back to her car.

The trooper questioned Gunn as she sat in the back seat of the patrol car with the door open. Gunn admitted that she had been drinking and agreed to take an alco-sensor test. After the trooper obtained a positive reading on his portable alco-sensor, he placed Gunn under arrest and read her the implied consent warnings. The trooper took Gunn to the Butts County Sheriff’s Office. There, she agreed to submit to an Intoxilyzer 5000 breath test. Gunn had a blood alcohol concentration of .137.

As we recently reiterated,

“[i]f the police take a suspect into custody and ask questions without informing the person of her Miranda rights, the responses cannot be introduced into evidence to establish her guilt. The United States Supreme Court defined ‘custodial interrogation’ as ‘questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of her freedom of action in any significant way.’ Only statements made by a suspect while in custody and under police interrogation give rise to the issue of Miranda warnings.” Therefore, the Fifth Amendment protections embodied by Miranda would be applicable only to [Gunn’s] statements, not the results of her field sobriety tests.

(Citations omitted.) Turner v. State, 233 Ga. App. 413, 414-415 (1) (a) (504 SE2d 229) (1998); Morrissette v. State, 229 Ga. App. 420, 421-422 (1) (a) (494 SE2d 8) (1997). Moreover, although Gunn was seated in the back of a patrol car when she was questioned, she was not “in custody” for Miranda purposes. Gunn was in the patrol car because she had been transported back to the scene of the accident. She had a duty to remain at the scene during the investigation of the accident. OCGA'§ 40-6-270 (a). A reasonable person would conclude that, under these circumstances, Gunn’s detention was temporary and not the equivalent of a formal arrest. See, e.g., Johnson v. State, 234 Ga. App. 116, 117 (2) (506 SE2d 234) (1998); Turner v. State, supra; Morrissette v. State, supra.

2. Gunn also contends the trial court erred in admitting the Intoxilyzer 5000 certificate of inspection as a business record because the state failed to lay a proper foundation. Pretermitting whether the state met the foundational requirements for admitting the certificate as a business record under OCGA § 24-3-14 (b), the state did satisfy the foundational requirements of OCGA § 40-6-392 (f). Under that statute,

the “foundation” for the admission of such certificate is: (1) the certificate is signed under oath by the inspector; and (2) the certificate contains the requisite language of OCGA § 40-6-392 (f). Once completed as specified under the statute, the certificate “is admissible in any court of law,” without further proof. . . . OCGA § 40-6-392 (f), itself, contains the “proper foundation” for admission of a certificate of inspection. After this proper foundation has been satisfied, the document may be admitted. A further foundation under the “business records exception,” OCGA § 24-3-14 (b), is rendered unnecessary by legislative enactment.

Decided March 12, 1999

Virgil L. Brown & Associates, Larkin M. Lee, for appellant.

Tommy K. Floyd, District Attorney, Sandra A. Graves, Charles C. Spahos, Assistant District Attorneys, for appellee.

Jackson v. State, 233 Ga. App. 568, 572-573 (2) (b) (504 SE2d 505) (1998). The trial court did not err in admitting the certificate of inspection.

Judgment affirmed.

Smith and Eldridge, JJ., concur.