text:
    A98A2220.
    RANDALL v. THE STATE.
    (507 SE2d 511)
   Eldridge, Judge.

Appellant Patricia Randall appeals a Terrell County jury’s verdict finding her guilty of burglary. We affirm.

Randall permitted her friend Marsha Huber Caudle to put Caudle’s new trailer on Randall’s property. Several months after moving into the trailer, Caudle became ill. Medical tests showed that she was suffering from an allergic reaction to the formaldehyde used in the manufacture of the trailer. Caudle moved out, but left a number of antiques and family heirlooms in the trailer. Caudle left the Terrell County area; however, she returned periodically to check on the trailer and its contents.

Approximately five months after she moved out, Caudle returned to the trailer with a U-Haul in order to retrieve her property. The trailer had been entered though the back door, which would no longer lock. The contents of the trailer had been removed. Caudle contacted the Terrell County Sheriff’s Department. When Randall was informed of the burglary, she told Caudle “she just didn’t know who would do such a thing.”

Shortly thereafter, Caudle’s sister-in-law was in a local antique shop in Sasser, Terrell County. She saw several items that looked like those taken from Caudle’s trailer. After telling the shop owner of her concerns, the owner called the Sheriff’s Department. Investigation revealed that Randall sold the shop owner two truck loads of items from Caudle’s trailer. Investigation also showed that Randall sold the trailer’s refrigerator, stove, washer, and dryer to a used appliance store in Albany. Further, Randall sold another antique shop owner 55 pieces of Caudle’s china. Randall did not have, permission to enter Caudle’s locked trailer and remove Caudle’s property.

At trial, Randall testified that Caudle owed her money and that she had consulted with an attorney about the situation. Randall testified that she relied upon the attorney’s advice in entering Caudle’s trailer, taking Caudle’s property, and selling it. She testified that she did not go into the trailer with the intent to steal, but that she misunderstood the attorney’s legal advice and thus “made a mistake.”

The jury deliberated less than 20 minutes before finding Randall guilty of burglary with theft by taking as the underlying felony. Held:

1. Randall first contends that the trial court erred by failing to charge the jury on her sole defense, “mistake of fact,” pursuant to her request.

While a trial court is required to charge on a criminal defendant’s sole defense of mistake of fact even absent a request to do so, such a charge is not required where it is not authorized by the evidence. Gunter v. State, 155 Ga. App. 176, 177 (3) (270 SE2d 224) (1980). “Mistake of fact is a defense to a crime to the extent that the ignorance of some fact negates the existence of the mental state required to establish a material element of the crime. [Cit.]” (Emphasis supplied.) Jones v. State, 263 Ga. 835, 839 (439 SE2d 645) (1994). A mistake of fact is defined as “a misapprehension of fact which, if true, would have justified the act or omission.” OCGA § 16-3-5. “Failure to give a charge on mistake of fact is not error where the evidence shows that a party made a mistake of law. [Cit.]” Turner v. State, 210 Ga. App. 303, 304 (1) (436 SE2d 229) (1993).

Here, the trial record shows that the gist of Randall’s “mistake” defense was to contest the elements of the theft by taking offense, i.e., unlawfully taking or appropriating the property of another. Thereby, Randall attempted to negate the burglary charge which could not stand without the underlying felony. OCGA §§ 16-8-2; 16-7-1. In so doing, Randall testified that an attorney with whom she consulted told her that she had the legal right to sell Caudle’s property in order to be reimbursed for money Caudle allegedly owed her. In that regard, Randall testified that “I misunderstood. I made a mistake. I am not a thief. I did not go in that house with the intent to steal.” Thus, the only “fact” about which Randall claimed to be mistaken is that she allegedly believed it was lawful to take Caudle’s property with the intention of depriving Caudle thereof. Accordingly, Randall’s mistake was one of law, not of fact, and there was no error in failing to charge the jury on the defense of “mistake of fact.” Turner v. State, supra at 304; Jones v. State, supra at 839.

2. Randall also contends that she received ineffective assistance of counsel at trial.

“Generally, the burden is on the defendant claiming ineffective assistance of counsel to establish (1) his attorney’s representation in specified instances fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.” (Citations and punctuation omitted; emphasis in original.) Anderson v. State, 228 Ga. App. 453, 457 (491 SE2d 893) (1997).

Randall contends that her trial attorney was ineffective because defense counsel (a) failed to call witnesses “to buttress the Defendant’s theory of mistake”; and (b) failed to develop and argue a legal defense to the burglary charge based on landlord/tenant law regarding abandonment of leased premises. This claim of error is meritless.

(a) Trial counsel testified at the motion for new trial that the decision to call no witnesses during the defense case-in-chief was a decision with which Randall fully concurred. “After we discussed the situation and what the ramifications for each one of these callings would be she agreed with me we shouldn’t have any witnesses.”

Further, other than Randall’s speculation during the motion for new trial as to matters about which potential defense witnesses might have testified, there was no evidence that any witness would have “buttressed” Randall’s defense. Randall did not call any of these alleged defense witnesses during the motion for new trial in order to show favorable evidence that her defense counsel had failed to obtain. Thus, neither error nor harm has been shown so as to support a claim of ineffective assistance of counsel.

Decided October 2, 1998

Reconsideration denied October 14, 1998.

James N. Finkelstein, for appellant.

Charles M. Ferguson, District Attorney, Ronald S. Smith, Assistant District Attorney, for appellee.

(b) There is no evidence that Caudle abandoned her trailer. Further, Randall did not own the trailer and lease it to Caudle so as to permit entry into the trailer, even if it had been abandoned. Landlord/tenant law does not apply here. “[T]he crime as it was actually committed was totally against [Caudle’s] property rights” as the owner of the trailer and its contents. (Citation omitted.) Purdue v. State, 165 Ga. App. 466, 467 (302 SE2d 118) (1983). Thus, neither error nor harm has been shown so as to support a claim of ineffective assistance of counsel.

Accordingly, the trial court’s denial of Randall’s ineffective assistance of counsel claim was not clearly erroneous. Anderson v. State, supra at 457.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.

       Contrary to arguments made in appellant’s reply brief, Randall’s defense of “mistake of fact” did not go to the elements of burglary, except as they relate to the underlying felony of theft by taking. There is absolutely no evidence in the trial record to support the notion that Randall believed she had Caudle’s permission to enjoy “free access” to Caudle’s trailer. This was an idea that was developed after trial, during the motion for new trial. The record shows that Randall did not testify that the consulting attorney advised her that she had a right to enter the trailer, and Randall did not testify that she believed she had authority to enter the trailer.


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A98A2231, A98A2232.
    WOODHULL CORPORATION et al. v. SAIBABA CORPORATION et al.; and vice versa.
    (507 SE2d 493)
   Eldridge, Judge.

Bharat Gandhi and Lila Gandhi and their corporation, Saibaba Corporation (collectively “Gandhi”) negotiated with Merritt W. Dixon III, the Dixon Children’s Trust, and Woodhull Corporation (collectively “Dixon”) for the purchase of a motel at 1-95 and Highway 341 in Glynn County, Georgia. Gandhi first contacted Dixon regarding the purchase in February 1995. Early in the negotiation, Gandhi learned that he could not obtain financing to purchase the motel. Consequently as part of the purchase agreement, Gandhi had Dixon refinance the loan on the motel so that Gandhi could assume it as part of the purchase agreement. Since Dixon had prior dealings with Nomura Asset Capital Corporation (“Nomura”), it was agreed that Dixon would get the loan from Nomura and that Gandhi would assume the loan. Gandhi wanted the assumable loan in the amount of $1,650,000, and he would assume the loan at the closing of the motel purchase by him.

However, there were certain agreed-upon restrictions on the new loan that had not been on the original loan, because it was a non-recourse loan. As a non-recourse loan, any early payoff prior to maturity had substantial penalties. It was understood by the parties prior to the Nomura loan that Nomura would assign the loan to another lender within a short time after the refinancing was made. To obtain the Nomura loan, Dixon was required to: (1) assign all interest in the property to Brunswick Properties, LLC, which was solely owned by Dixon, individually; (2) reroof with a new cover a portion of the existing roof at a cost of $43,000; and (3) pay $15,000 for loan processing fees, legal fees, and other costs for obtaining the loan. Nomura required that prior to the loan closing Dixon pre-pay $84,083 into escrow to ensure that such special conditions were carried out.

Gandhi negotiated many of the contract terms himself, and the contract was in the final stages of finalization in May 1995. Gandhi’s counsel reviewed the written agreement, drafted changes, and negotiated other terms. On June 16,1995, the parties executed the Agreement of Sale and Purchase. Under the contract, Gandhi paid Dixon $100,000 for pre-paid closing costs and fees. The actual closing costs for the loan were $140,000-$150,000. One of the terms of the contract was that Gandhi would assume the Nomura loan immediately after Dixon obtained the loan, i.e., within 20 days of the loan closing. There were two reasons for the immediate assumption of the loan: (1) Dixon was not to carry the loan on the due date of the first loan payment, which was 30 days after the loan closing; and (2) after the loan was assigned by Nomura, the parties would be unfamiliar with the terms for assumption by Gandhi. On December 26, 1995, Dixon closed the Nomura loan and notified Gandhi. On March 1, 1996, Nomura assigned the loan to Pacific Mutual Insurance Company (“Pacific”).

Although Gandhi knew that the new loan was in place by January 10, 1996, Gandhi failed to take steps to assume the loan. In fact, Gandhi made no contact with Nomura regarding the loan assumption prior to the due date for the first loan payment and had not contacted Nomura by August 21, 1996. Gandhi refused assistance in assuming the loan.

Gandhi disputed responsibility for the cost to partially reroof the motel as required as a loan condition by Nomura and threatened suit. Gandhi made no effort to seek the assumption of the loan from Pacific. Gandhi never was approved to assume the Nomura loan. In fact, Gandhi could not have qualified for the loan assumption, because he lacked hotel/motel management experience and the financial strength for a loan of this size. Gandhi never sought to assume the loan, never was rejected as an unacceptable credit risk by either Nomura or Pacific, and never sought alternative financing.

By March 7, 1996, Gandhi knew that he could not qualify to assume the Nomura loan. After such date, Gandhi sought to negotiate a new agreement, including a lease of the motel, which was rejected by Dixon.

Dixon had to make payments on the mortgage at the rate of $15,000 a month, which affected the purchase price under the contract. Gandhi did not assume the loan and close the purchase within the 30 days of the loan closing, so that on May 13, 1996, Dixon’s attorney demanded that Gandhi take immediate steps to close. Gandhi continued to dicker over different terms, including the price, and did not close the purchase. Finally, Gandhi began to communicate with Pacific regarding the loan assumption, and Pacific placed various conditions precedent to the assumption of the loan. However, as of August 27, 1996, Gandhi had not met the conditions of the Agreement of Sale and Purchase: (1) an opinion letter; (2) required financial information on Saibaba Corporation; (3) assumption agreement from Pacific; (4) executed environmental indemnity statement; and (5) proof of current insurance. Pacific placed a new requirement for the assumption that Dixon execute a conveyance of title of the property to Gandhi prior to Pacific granting the loan assumption.

On August 30, 1996, Dixon gave Gandhi a written notice of Gandhi’s default and breach of contract from the failure to assume the loan and to close on the purchase of the property. Under paragraph 15.1 of the contract, Dixon retained as liquidated damages the prepaid closing costs.

Gandhi sued to recover the pre-paid closing costs and for specific performance. The defendants answered and filed a complaint to quiet title. The parties filed cross-motions for summary judgment. The trial court granted in part and denied in part Dixon’s motion for summary judgment and granted summary judgment to Gandhi allowing the recovery of the pre-paid closing costs and pre-judgment interest. Both parties appeal.

Case No. A98A2231

1. Dixon’s enumeration of errors states in six different ways why the trial court’s grant of summary judgment to Gandhi and partial denial of his motion were error. We agree that the trial court erred in granting Gandhi’s motion for summary judgment and in failing to grant Dixon’s partial summary judgment as to the recovery of the pre-paid closing costs as liquidated damages by Dixon under the contract.

(a) Section 6.1 of the written contract provided: “Closing Date. The closing shall be held ... on the date which is within twenty (20) days after the closing of Nomura Financing.” (Emphasis supplied.) Section 2.1, Purchase Price, provided that the total purchase price was $1,910,000, consisting of the Nomura loan of $1,650,000, $100,000 pre-paid closing costs, and $160,000 paid at closing. The only way in which such figures would remain the same would be for the closing to take place within the 20 days following the loan closing and prior to the first loan payment being due; otherwise, the loan balance would change. However, the contract anticipated that the payment at closing would increase if the amount of the loan financed was less than $1,650,000, not that the loan balance was reduced. Further, any loan payments required to be paid by Dixon would mean that almost all of the $15,000 monthly payments would be for interest, with little reduction of principal, and that would be unrecoverable by Dixon. All due diligence, inspection, operations, or cure of title or other defects were to occur prior to the loan finance closing. Further, the loan assumption needed to take place while Nomura still had the loan and the loan assumption conditions were known. While the contract does not expressly state that time is of the essence, all the terms of the contract when read together clearly express such intent of the parties, so that the only reasonable construction is that the intent of the parties was that time was of the essence. Under OCGA § 13-2-2 (9), “[t]ime is not generally of the essence of a contract; but, by express stipulation or reasonable construction, it may become so.” Where Dixon would incur $15,000 in monthly payments to Nomura that were unrecoverable, and where only $160,000 was payable at closing, time was intended to be of the essence. Clearly, the only reasonable construction of the agreement was that time was of the essence, because the written agreement contained the condition for the closing of the motel purchase 20 days after the loan closing, and the parties did not intend to cause unrecoverable damages from the mortgage payments to be suffered by Dixon through the intentional conduct of Gandhi, who was not subject to damages under the contract other than the liquidated damages provided under the contract. See Evans v. Brown, 196 Ga. 634, 638 (27 SE2d 300) (1943); Watkins v. Hendricks, 137 Ga. 330, 331 (1) (73 SE 581) (1912). “Where [a contract for sale] clearly fixes by unambiguous language a time for performance, and where there is no evidence tending to show that the parties did not intend that time should be of the essence of the contract, but the contract and the surrounding circumstances manifestly show that the parties intended that time should be of such essence, the court may so rule as a matter of law.” (Citations omitted.) Henry Cotton Mills v. Shoenig & Co., 33 Ga.. App. 467, 469-470 (1) (127 SE 238) (1925); see also Sewell v. C. I. T. Corp., 43 Ga. App. 676 (160 SE 99) (1931). This was a contract where time was of the essence to assume the loan and close the purchase after the loan closing, but which provided a reasonable time to inspect and carry out the contract provisions prior to the loan closing, because harm could accrue to the parties only after the loan closing.

(b) Further, even if the contract is construed to mean that the closing of the sale of the motel must occur within a reasonable time after the loan closing, when Dixon is suffering $15,000 per month in unrecoverable mortgage payments, a delay of eight months is patently unreasonable, because failure to close prior to August resulted in $120,000 in unrecoverable mortgage payments and was unreasonable. See Alabama Constr. Co. v. Continental Car &c. Co., 131 Ga. 365 (62 SE 160) (1908); Cassville-White Assoc. v. Bartow Assoc., 150 Ga. App. 561 (258 SE2d 175) (1979). Thus, where Dixon had to pay $120,000 to Nomura and Pacific, as a matter of law Gandhi’s delay of eight months was clearly and palpably unreasonable delay and breached the contract.

(c) When the contract is construed as calling for time is of the essence, and if Dixon’s conduct could be deemed as a waiver, then a reasonable time to close must be construed. McCullough v. McCullough, 263 Ga. 794 (439 SE2d 486) (1994); Edwards v. McTyre, 246 Ga. 302, 303 (3) (271 SE2d 205) (1980); King v. Lipsey, 142 Ga. 832 (83 SE 957) (1914). However, under the facts of this case, where Dixon is suffering substantial, unrecoverable damages incurred on Gandhi’s behalf under the contract and caused by Gandhi’s delay in closing, failure to perform for eight months is patently unreasonable; therefore, Gandhi breached the contract on or before August 1996 by not assuming the loan and closing.

Thus, under any construction of the contract or interpretation of the undisputed facts, Gandhi breached the contract, and liquidated damages in the amount of the pre-paid closing costs partly compensated Dixon for the $60,000 in unrecovered refinance closing costs, $120,000 in mortgage payments, the mortgage with a pre-payment clause, and legal expenses. The trial court erred in granting summary judgment to Gandhi and in denying partial summary judgment to Dixon on his entitlement to the liquidated damages.

2. Dixon enumerated as error the trial court’s grant of summary judgment against his complaint alleging fraud in the inducement. We do not agree.

Fraud in the inducement, or inceptive fraud to enter into a contract, provides the remedy of rescission and recovery of any additional damages after repayment of the contract payment. OCGA § 13-4-60; Ben Farmer Realty Co. v. Woodard, 212 Ga. App. 74 (441 SE2d 421) (1994). Dixon “could not recover for both breach of contract and fraud if the fraud related purely to the inducement to enter into the contract. . . . Damages [that arise from different fraud] for that reason would not be duplicative of those for breach of contract.” Long v. Marion, 182 Ga. App. 361, 366 (5) (355 SE2d 711), aff’d, 257 Ga. 431 (360 SE2d 255) (1987). In this case, Dixon affirmed the contract and sued in tort for damages. Generally, false representations that induce the party to enter into the contract are merged through the contract merger language, but since the same misrepresentations were made as part of the contract, there was no merger. See Orion Capital Partners, L.P. v. Westinghouse Elec. Corp., 223 Ga. App. 539, 541-543 (2) (478 SE2d 382) (1996); Flair Fashions v. SW CR Eisenhower Drive, 207 Ga. App. 78 (427 SE2d 56) (1993). If the contract action for fraud is waived, then the party can sue in tort for fraud. Hines v. Good Housekeeping Shop, 161 Ga. App. 318, 321 (8) (291 SE2d 238) (1982); Hartsfield Co. v. Newlin, 49 Ga. App. 546-547 (176 SE 516) (1934).

Where the false representations to induce the contract also go to the essence of the contract and are part of the contract, such false representations are part of any tort action for fraud when the contract is affirmed. Hines v. Good Housekeeping Shop, supra at 321; see also Ben Farmer Realty Co. v. Woodard, supra.

In this case, the alleged false representations as to Gandhi’s financial solvency were made to induce Dixon to enter into the contract, but also became terms of the actual contract, inducing Dixon to refinance the loan at substantial loan closing costs so that it could be assumed by Gandhi. Thus, the false representations became part of the contract consideration to induce Dixon to change his position to his detriment by refinancing the loan into a non-recourse loan with pre-payment penalties. The evidence that Dixon undertook to refinance on terms requested by Gandhi and obtained a loan that was believed to be assumable by Gandhi and that was disadvantageous to Dixon if he retained it was some evidence of justifiable reliance, which created a jury question. Thus, the misrepresentations became an integral part of the contract and a consideration, so that there was no merger or waiver.

However, the liquidated damages provision of the contract that Dixon affirmed prevents him from recovering in tort any damages that he could have recovered in contract, because he waived such contract damages by binding himself contractually to the liquidated damages only. Dixon is not permitted a double recovery of the same damages for the same wrong. He is entitled to only one satisfaction of the same damages, in either contract or tort. Saunders, Stuckey & Mullis, Inc. v. Citizens Bank &c. Co., 265 Ga. 453, 456 (458 SE2d 337) (1995); City of Atlanta v. J. A. Jones Constr. Co., 260 Ga. 658, 659 (2) (398 SE2d 369) (1991); Georgia Society of Plastic Surgeons v. Anderson, 257 Ga. 710, 714-715 (4) (363 SE2d 140) (1987); Nalley Northside Chevrolet v. Herring, 215 Ga. App. 185, 188-189 (5) (450 SE2d 452) (1994); Mathis v. Melaver, Inc., 206 Ga. App. 392, 393 (425 SE2d 401) (1992).

Where, for the same damages, there exists an action in contract and tort, i.e., fraud, the plaintiff must elect between the causes of action and cannot recover in both. Black & White Constr. Co. v. Bolden Contractors, 187 Ga. App. 805, 808 (3) (371 SE2d 421) (1988); Hines v. Good Housekeeping Shop, supra at 321-322 (8). However, where damages are not duplicitous and where “separate transactions supporting its recovery under each of the contract and tort theories,” there can be recovery of separate damages under each theory; but such is not the case here. Henderson v. Glen Oak, Inc., 256 Ga. 619 (351 SE2d 640) (1987); see also Long v. Marion, 182 Ga. App. at 366. Under the contract that he affirmed, Dixon agreed to accept liquidated damages of the pre-paid closing costs in lieu of any other contract damages that were provable. This bars further recovery for the same damages, in either contract or tort. See City of Warner Robins v. Holt, 220 Ga. App. 794, 796-797 (2) (470 SE2d 238) (1996).

However, consequential damages and punitive damages, not recoverable in a contract action, would be authorized in this tort action if proven. OCGA §§ 13-6-2; 13-6-8; 51-12-1; Quigley v. Jones, 255 Ga. 33 (334 SE2d 664) (1985); Bill Parker & Assoc. v. Rahr, 216 Ga. App. 838, 841 (4) (456 SE2d 221) (1995); Long v. Marion, 182 Ga. App. at 366; Dept. of Transp. v. Arapaho Constr., 180 Ga. App. 341, 345-346 (4), (5) (349 SE2d 196) (1986), aff'd, 257 Ga. 269 (357 SE2d 593) (1987). In this case, there is no evidence in the record of any consequential or special damages other than the same actual damages which were recoverable in a contract action and which were satisfied under the contract by liquidated damages. See generally OCGA §§ 13-6-2; 13-6-8; Hammond v. City of Warner Robins, 224 Ga. App. 684, 689-690 (1) (482 SE2d 422) (1997); Phillips v. Leisure Auto. Corp., 223 Ga. App. 225, 226 (1) (477 SE2d 380) (1996); Citizens Bank v. Johnson, 191 Ga. App. 155, 158 (2) (381 SE2d 121) (1989); Rodrigue v. Mendenhall, 145 Ga. App. 666, 668 (2) (244 SE2d 598) (1978).

Unless Dixon could show actual tort damages other than the contract damages directly flowing from the alleged fraud, which have been satisfied, then actual damages have not been shown, and nominal damages are not recoverable. “The rule is that an award of nominal damages for fraud is improper, as ‘to establish a cause of action for fraud, a party must show that actual damages, not simply nominal damages, flowed from the fraud alleged.’ Glynn County Federal Employees Credit Union v. Peagler, 256 Ga. 342, 344 (2) (348 SE2d 628) (1986). Moreover, a party is not entitled to punitive damages if the party fails to set out a cause of action in tort. Id. (4) at 344-345.” Stiefel v. Schick, 260 Ga. 638, 639 (2) (398 SE2d 194) (1990). Consequently, the trial court did not err in granting partial summary judgment to Gandhi, because Dixon failed on his motion for summary judgment to provide some evidence giving rise to a material issue of fact that he had suffered unsatisfied actual damages. See OCGA § 9-11-56 (e); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Decided October 2, 1998

Reconsideration denied October 14, 1998

Savage, Herndon & Turner, Brent J. Savage, Robert B. Turner, Robert S. Kraeuter, for appellants.

Duffy, Feemster & Lewis, George L. Lewis, for appellees.

Case No. A98A2232

3. This enumeration of error is controlled by Division 1, supra, which found that Gandhi, not Dixon breached the contract. Therefore, it is not necessary to determine if the trial court was correct for the reason raised in this enumeration of error.

The grant of plaintiffs’ summary judgment as to the defendants’ breach of contract is reversed. The denial of defendants’ summary judgment as to plaintiffs’ breach of contract and liability for liquidated damages is reversed. The grant of partial summary judgment that the defendants are limited to liquidated damages is affirmed in Case No. A98A2231. The grant of partial summary judgment to defendants is affirmed in Case No. A98A2232.

McMurray, P. J., and Blackburn, J., concur.


author: Blackburn, Judge.

text:
    A98A2052.
    WHEELER v. STEWART.
    (507 SE2d 540)
   Blackburn, Judge.

Plaintiff Lillian Wheeler appeals the trial court’s grant of defendant’s motion in limine which excluded evidence of Dr. Jeff L. Stewart’s drug use from the jury in this medical malpractice action. A defendant’s verdict was returned. Because the record indicates that any such drug use occurred after Stewart’s treatment of Wheeler, we affirm the trial court’s exclusion of this evidence as irrelevant to the medical malpractice claim and unfairly prejudicial.

On March 25, 1991, Wheeler was riding in a go-cart with her granddaughter. Her granddaughter drove the go-cart into the back of a parked truck, and Wheeler sustained injuries to her abdomen and her leg. Wheeler was treated by Stewart at Bowden Hospital. Several days later, Dr. P. J. Kim performed exploratory surgery at Bowden Hospital and discovered that Wheeler had a ruptured duodenum. Ten days later, Wheeler was transferred to Georgia Baptist Hospital for treatment.

Once she recovered, Wheeler sued Stewart and Kim for failing to properly diagnose her condition and promptly transfer her to a facility adequately equipped to treat her injuries. After a defense verdict following a jury trial, Wheeler brought this appeal as to Stewart only. Wheeler contends that the trial court erred in excluding evidence that shows that Stewart was taking mood-altering medications at the time that he was treating her.

Wheeler’s conclusions are based largely on her mischaracterizations of Stewart’s deposition. Wheeler requested in her notice of appeal that all depositions be omitted from the record, including Stewart’s. This Wheeler did with knowledge that she had the burden of proof on this issue. On appeal, Wheeler based the majority of her arguments on partial quotes from Stewart’s deposition. Wheeler’s intentional omissions of the depositions upon which she relies, would have authorized this Court to affirm the trial court without further analysis. Stewart, however, asked that his deposition be included in the record. A review of the record reveals that Stewart admitted that he had improperly taken medication samples of certain mood-altering drugs provided to him by pharmaceutical companies during his practice; however, he testified that this drug use began, at the earliest point, in October 1991, months after he treated Wheeler. Stewart did admit, however, using samples of antibiotics to treat minor infections throughout his practice, but not mood-altering drugs which would affect his ability to treat patients. Thus, the trial court properly determined that evidence of Stewart’s drug use and subsequent rehabilitation were not relevant to his treatment of Wheeler, as the use of mood-altering drugs did not begin until Stewart’s treatment of Wheeler had terminated.

Wheeler further contends that the testimony of her daughter, Nancy Allen, supports an inference that Stewart was taking mood-altering drugs at the time he was treating Wheeler. However, Allen testified only that Stewart appeared to be perky and full of vigor at night when she spoke to him at the hospital. This lay observation, alone, does not support the conclusion that Stewart was using mood-altering drugs at the time he treated Wheeler. Therefore, Allen’s testimony is not sufficient to establish a clear abuse of the trial court’s discretion.

Nor did the trial court err by refusing to allow Wheeler to impeach character witnesses with regard to Stewart’s use of drugs after the treatment of Wheeler as such evidence had no relevance to the issues on trial. Under these circumstances, we cannot say that the trial court’s ruling was an abuse of discretion. See Pavamani, P. C. v. Cole, 215 Ga. App. 594, 595 (2) (451 SE2d 795) (1994).

“Questions of relevancy are generally matters within the trial court’s discretion^] and it is not error to exclude evidence that is not related to an issue at trial.” American Assn. of Cab Cos. v. Egeh, 205 Ga. App. 228, 229 (1) (421 SE2d 741) (1992). “Absent a clear abuse, this [C]ourt will not control the trial court’s discretion.” Dept. of Transp. v. Wright, 169 Ga. App. 332, 336 (1) (312 SE2d 824) (1983).

Decided October 14, 1998.

Robert C. Koski, for appellant.

Tisinger, Tisinger, Vance & Greer, David H. Tisinger, David F. Miceli, for appellee.

Moreover, it was not erroneous for the trial court to determine that evidence of Stewart’s drug use subsequent to his treatment of Wheeler would be unduly prejudicial. “[EJvidence that is both irrelevant and prejudicial is inadmissible.” Perryman v. DeKalb County Hosp. Auth., 197 Ga. App. 505, 508 (3) (398 SE2d 745) (1990).

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.


author: McMurray, Presiding Judge.

text:
    A99A0200.
    THIERMAN v. THIERMAN.
    (507 SE2d 489)
   McMurray, Presiding Judge.

In Case No. A98D0411, In re Estate of Thierman, the application of caveator Jonathan Thierman to review the order of the probate court denying caveator’s motion to set aside the probate court’s previous order granting Letters of Dismission to the applicant-executrix Nancy Thierman was dismissed as untimely on August 11, 1998. In Case No. A99A0200, Jonathan Thierman’s subsequent pro se direct appeal to the Supreme Court of Georgia was transferred to the Court of Appeals of Georgia. Held:

1. According to the notice of appeal filed June 26,1998, Jonathan Thierman appeals from the “order dated March 31, 1998Í, granting Letters of Dismission, as well as the] denial of Motion to Set Aside Judgment and [an unidentified] June letter.” It is the duty of this Court on its own motion to inquire into its own jurisdiction. Cole v. Cole, 205 Ga. App. 332 (1) (422 SE2d 230).

Unless tied to a directly appealable order, an appeal from the denial of a motion to set aside a judgment under OCGA § 9-11-60 (d) requires a timely application to this Court for permission to pursue a discretionary appeal. OCGA § 5-6-35 (a) (8) and (d). The attempted direct appeal on June 26, 1998, from the March 31, 1998 order of the probate court is untimely under OCGA § 5-6-38 (a). There is no timely application for discretionary review of the denial of the motion to set aside. Consequently, neither order is capable of sustaining a direct appeal through a notice of appeal filed on June 26, 1998, and we are without jurisdiction to consider the errors enumerated as to them.

Decided September 30, 1998

Reconsideration denied October 15, 1998

Jonathan H. Thierman, pro se.

Wagner, Johnston & Rosenthal, Michael S. Rosenthal, for appellee.

2. Jonathan Thierman also appeals from the “attached letter dated August 3, 1998 (Exhibit 2),” which is a letter from A. Duane Fry, Director of Enforcement, Division of Securities & Business Regulation, within the office of the Georgia Secretary of State. This letter informs Jonathan Thierman that his belief that “monies have been improperly removed . . . from trust accounts established for [his] children . . . does not appear to be a violation of the Georgia Securities Act of 1973, as amended, in that there was no offer or sale of a security to a resident of the State of Georgia [and that consequently] the matters [Jonathan Thierman wrote] about are outside the boundaries of [the Secretary of State’s] jurisdiction.”

“Either party in any civil case ... in the superior, state, or city courts, may appeal from any . . . decision[ ] or decree of the court, or of the judge thereof in any matter heard at chambers.” OCGA § 5-6-33 (a). An “appeal to be held valid must be taken from an appealable decision or judgment of the trial court.” Walker v. Walker, 222 Ga. 521, 522 (150 SE2d 635). In the case sub judice, the letter from the Director of Enforcement is not a final decision or decree by a superior, state or city court rendered in an actual case or controversy instituted in a court of record, nor, in this attempted direct appeal, is Jonathan Thierman a party in a pending civil case. OCGA § 5-6-34 (a) (1). We are without jurisdiction to render any decision in Case No. A99A0200, and the appeal must be dismissed.

Appeal dismissed.

Andrews, C. J., and Ruffin, J., concur.


author: Judge Harold R. Banke.

text:
    A98A1079.
    In the Interest of A. C., a child.
    (507 SE2d 549)
   Judge Harold R. Banke.

The biological father of A. C. appeals the termination of his parental rights. Although the biological father and A. C.’s mother are not married, the father’s petition to legitimize A. C. has been granted. The mother is not a party to this appeal.

Before A. C. was placed in the custody of her paternal grandmother, she lived with her mother, N. M., a half-sister, and her biological father. A. C. was removed from the custody of her mother upon the petition of the paternal grandmother after A. C. was abandoned to her custody. Thereafter, the juvenile court issued an emergency order finding that A. C. was deprived and placed her in her grandmother’s custody. The order found that A. C. was abandoned, her mother and biological father were drug addicts and alcoholics, her father had been incarcerated and was out on bond, reasonable efforts had been made to prevent removal, and continuation in the home would be contrary to A. C.’s welfare. Later, the juvenile court issued a final deprivation order finding that A. C. continued to be deprived and her parents were unfit. Neither order was appealed.

Ultimately, the Department of Family & Children Services petitioned the court to terminate the biological parents’ parental rights. After a hearing in which the biological father participated with his counsel, the court found the biological mother abandoned A. C. to her paternal grandmother and both biological parents had drug problems. The court also found that while the biological father was living with A. C., A. C.’s mother, and N. M., the biological father molested N. M. The biological father subsequently pleaded guilty to two counts of child molestation for molesting N. M. Additionally, the biological father pleaded nolo contendere to the sexual battery of his own grandmother. Because of the sexual battery, his probation adjudged for a prior theft was revoked.

The juvenile court concluded that A. C. was deprived and that this deprivation was the result of the lack of proper parental care and control by her father. The court also found, by clear and convincing evidence, that the father was guilty of egregious conduct by molesting N. M. and by the sexual battery of his grandmother, and that the father had failed to address the problems that caused him to be a sexual predator. Consequently, the court found that the deprivation would continue if A. C. were returned to the father and that termination of his parental rights was in the best interest of A. C.

The biological father contends the juvenile court erred by terminating his parental rights because the evidence was insufficient to show that termination of his parental rights was in the best interest of the child or to show that A. C.’s deprivation would continue. Held:

The standard of review is whether, after viewing the evidence in a light most favorable to the appellee, a rational trier of fact could have found by clear and convincing evidence that the biological parent’s rights should have been lost. In the Interest of J. H., 210 Ga. App. 255, 258 (1) (435 SE2d 753) (1993); OCGA § 15-11-86. On appeal, this Court defers to the trial court’s fact findings and will affirm unless the appellate standard is not met. In the Interest of R. N., 224 Ga. App. 202 (480 SE2d 243) (1997).

In considering the termination of parental rights, the court shall first determine whether there is present clear and convincing evidence of parental misconduct or inability. If so, the court must consider whether termination of parental rights is in the best interest of the child, after considering the physical, mental, emotional, and moral condition and needs of the child including the need for a secure and stable home. OCGA § 15-11-81 (a).

Decided October 15, 1998.

Robert Greenwald, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, William C. Joy, Senior Assistant Attorneys General, Shalen A. Sgrosso, Stephanie M. Baldauff, Assistant Attorneys General, Robert E. Hall, John L. Welsh II, Rich & Smith, Michael T. Smith, for appellee.

The unappealed deprivation orders of the juvenile court are sufficient to establish that A. C. was deprived within the meaning of OCGA § 15-11-81 (b) (4) (A) (i). In the Interest of A. M. B., 219 Ga. App. 133, 134 (464 SE2d 253) (1995). The father’s conviction for child molestation can be considered in judging his parental misconduct or inability. OCGA § 15-11-81 (b) (4) (B) (iii). Further, the juvenile court was authorized to consider his egregious conduct toward N. M. because his conduct was of a physically, emotionally, or sexually cruel or abusive nature (OCGA § 15-11-81 (b) (4) (B) (iv)), and the past molestation of N. M. was properly considered in deciding whether A. C.’s deprivation would continue. In the Interest of E. N. H., 216 Ga. App. 209, 210-211 (453 SE2d 778) (1995). Therefore, we are satisfied that the evidence was sufficient to show that A. C.’s deprivation would continue, and we have no doubt the evidence is sufficient to show that termination of the father’s parental rights is in the best interest of A. C.

Considering the evidence of the biological father’s sexual misconduct involving a young child and his own grandmother as well as bis failure to address his moral and psychological problems, the errors enumerated are without merit. Accordingly, the termination of the biological father’s parental rights is affirmed.

Judgment affirmed.

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


text:
    A98A1327.
    In the Interest of K. L. et al., children.
    (507 SE2d 542)
   Judge Harold R. Banke.

The natural parents of K. L. (a female born on March 24, 1989), R. L. (a male born on February 28,1990), K. S. (a female born on July 24,1991), and K. L. (a female bom on June 5,1994) appeal the termination of their parental rights regarding their children. The parents contend the evidence presented was insufficient to support a finding of parental inability or misconduct or to show the termination of their parental rights was in the best interest of the children. They also contend the evidence was insufficient to support a finding that the children’s deprivation was likely to continue and could not be remedied. Held:

The standard of review is whether, after viewing the evidence in a light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parents’ rights should have been lost. In the Interest of J. H., 210 Ga. App. 255, 258 (1) (435 SE2d 753) (1993). On appeal, this Court defers to the trial court’s fact findings and will affirm unless the appellate standard is not met. In the Interest of R. N., 224 Ga. App. 202 (480 SE2d 243) (1997).

The Department of Family & Children Services (“DFCS”) took the elder K. L., R. L. and K. S. into custody in December 1993 after they were picked up by the police. Their parents were subsequently arrested for cruelty to children. Following a hearing, the juvenile court found the children had been left alone for an unknown time, the house where the children were found contained containers of propane gas, rusted nails, plates of spoiled food, unwashed clothing, and other dangerous tools and items. The children had not been bathed for an unknown time, and they smelled of urine; the boy was unclothed, and the girls were partially clothed and covered with dirt. The juvenile court concluded that the children were deprived. This determination was not appealed.

After the older children were placed in DFCS’ custody, the juvenile court approved a DFCS-developed reunification case plan that required the parents to meet several goals: (1) cooperate and maintain contact with DFCS, (2) have regular contact with the children, (3) show interest in the children and pay child support, (4) arrange for the children to be supervised safely, (5) understand the children’s needs and attend counseling sessions and parenting classes, (6) resolve criminal charges and get out of jail, (7) obtain suitable housing, and (8) keep the home in safe and sanitary condition. This plan remained in effect while the children were in DFCS’ custody and a citizen review panel met every six months to review thé parents’ progress under the plan.

About a year later, DFCS took K. L., the parents’ youngest child, into custody after a caseworker saw that she was living in deplorable conditions. The caseworker reported K. L. was filthy and was using a piece of dirty foam rubber for a bed; the floor was covered with stale food and cigarette butts. After a deprivation hearing, the juvenile court found that the home in which the child was living was unsuitable for a child of tender years because it was unsanitary and a Coleman stove and space heater were being used near the six-month-old child. The child was filthy. Based upon these findings, the juvenile court concluded that K. L. was deprived. This deprivation order also was not appealed by the parents. The juvenile court ordered the parents to comply with a reunification plan that contained the same goals as the plan developed for their other children.

In February 1996, a citizen review panel recommended that the parental rights be terminated. This recommendation was followed in June 1996 by the recommendation of another citizen review panel to terminate the parental rights because one of the children reported that the father had molested her.

After a termination hearing on all the children, the juvenile court found clear and convincing evidence of parental inability or misconduct and concluded that termination of the parental rights was in the best interest of the children. The juvenile court’s findings of fact and conclusions of law are supported by the record.

The evidence showed the parents were notified more than six months before the hearing that they must vacate the house in which they were living, but as of the hearing date they had not located another place to five. Further, although the parents attempted to comply with certain of the case plan goals, the evidence showed that they had not paid child support, had not completed all of the parenting classes, and the mother did not complete a counseling program even though a counselor testified that she needed further counseling. Further, the parents did not cooperate with visitations by the parent aide.

The parents at first cooperated with DFCS and worked toward complying with the case plan, but for two months before the hearing DFCS had no contact with the parents. Although the parents brought their children toys earlier, they never supported the children even though they understood the obligation to make support payments and DFCS provided them with envelopes for mailing the support payments. While the parents maintain that the support obligation was deleted from the plan and they were never asked to pay a specific amount, the case plan and the DFCS caseworkers’ testimony contradict those contentions.

Most significantly, the caseworkers testified that the unsanitary conditions of the home did not change after the children were removed and the parents had completed some parenting classes. One year after the older children were removed, the house was still extremely dirty and unsanitary.

A clinical psychologist, who examined the father, testified that there was little evidence the father understood the enormity of the problems with the children and what was required of him in taking care of the children, and it was highly unlikely that he would be able to provide adequate care and safety for them. The psychologist also testified that the children displayed evidence of early deprivation while in the parents’ care, but that they were making good adjustment to foster care.

The juvenile court employed the two-step process for termination of parental rights. “In considering the termination of parental rights, the court shall first determine whether there is present clear and convincing evidence of parental misconduct or inability. ... If there is clear and convincing evidence of such parental misconduct or inability, the court shall then consider whether termination of parental rights is in the best interest of the child, after considering the physical, mental, emotional, and moral condition and needs of the child . . . including the need for a secure and stable home.” OCGA § 15-11-81 (a).

Since the parents had been without custody of the children for over a year, the court was authorized under OCGA § 15-11-81 (b) (4) (C) to determine that the parents, without justifiable cause, failed to comply with the plan for reunification. See OCGA § 15-11-81 (b) (4) (C) (i)-(iii). The evidence shows that the parents failed to comply with the plan in many respects: they did not cooperate with DFCS, support the children, make arrangements for the children to be safely supervised, find a place to live for the family, and obviously they did not keep the home in a safe and sanitary condition.

The unappealed deprivation orders of the juvenile court are sufficient to establish that the children were deprived within the meaning of OCGA § 15-11-81 (b) (4) (A) (i). In the Interest of A. M. B., 219 Ga. App. 133, 134 (464 SE2d 253) (1995). Further, “the past conduct of the parent is properly considered by the court in determining whether such conditions of deprivation are likely to continue. [Cits.]” In the Interest of J. L. Y., 184 Ga. App. 254, 257 (2) (361 SE2d 246) (1987). In this appeal, the evidence shows that the parents never remedied the conditions in their home that caused the children to be removed initially. Therefore, it is completely reasonable to expect that these conditions will continue.

The circumstances that authorized the juvenile court to determine the children were deprived due to lack of proper parental control or inability and that such deprivation was likely to continue also provide clear and convincing evidentiary support for the conclusion that such continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the children. OCGA § 15-11-81 (b) (4) (A) (iv); In the Interest of D. T., 221 Ga. App. 328, 329 (1) (471 SE2d 281) (1996). Thus, this evidence coupled with the clinical psychologist’s testimony that the children showed signs of deprivation from their care by their parents was sufficient to demonstrate the harm to the children.

Decided October 15, 1998.

Hurl R. Taylor, Jr., for appellants.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, William C. Joy, Senior Assistant Attorneys General, Shalen A. Sgrosso, Stephanie M. Baldauff, Assistant Attorneys General, Nardone & Read, Robert G. Nardone, Dorothy V. Murphy, for appellee.

Accordingly, we find the evidence was sufficient to support the findings of parental inability or misconduct, to support a finding that the deprivation was likely to continue and not be remedied, and to support the determination that termination of the parental rights was in the best interest of the children.

Judgment affirmed.

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


text:
    A98A1378.
    COSBY v. THE STATE.
    (507 SE2d 551)
   Judge Harold R. Banke.

After the grant of his motion for an out-of-time appeal, Okeyond Cosby appeals his convictions for one count of burglary and four counts of kidnapping. He was sentenced to serve 20 years concurrently for each count.

Viewed in support of the verdict, the evidence showed that during a home invasion robbery several armed men broke into the victims’ apartment and held them at gunpoint while attempting to steal money and property. While doing so, the armed men forced the victims to move from the bedrooms to the living room and to remain there until the victims were forced to move to a bathroom.

Finally, the police rescued the victims and apprehended Cosby as he left the victims’ apartment. One of the victims identified Cosby as one of the armed men who broke into the apartment.

In a statement to the police and during his trial testimony Cosby asserted that he did not participate in the crimes for which he was charged. Instead, he maintained that he was kidnapped by the real perpetrators of the crime and forced to accompany them to the victims’ apartment. Held:

1. Cosby alleges the trial court erred by allowing the prosecution to cross-examine him about why he was in jail. Cosby testified that when the gunmen accused him of selling drugs for the target of the home invasion, he told them he could not have done so because he had only recently been released, from jail. Then, over Cosby’s objection, the trial court allowed the State to ascertain from Cosby that he was in jail on drug charges that were still pending against him. Cosby contends the State should have been precluded from examining him about this matter because he had done nothing to put his character in issue. Cosby asserts that OCGA §§ 24-2-2 and 24-9-20 and Jones v. State, 257 Ga. 753 (363 SE2d 529) (1988), support his argument.

Cosby’s contention is not well taken. “The State was entitled to cross-examine [Cosby] about his incarceration . . . because [he] introduced that topic. Williams v. State, 263 Ga. 135, 137 (5) (429 SE2d 512) (1993); Wilkey v. State, 215 Ga. App. 354, 355 (450 SE2d 846) (1994). See Weston v. State, 216 Ga. App. 806 (456 SE2d 214) (1995). The State, like any other party, has the right to conduct a thorough and sifting cross-examination of a witness. OCGA § 24-9-64; Sawyers v. State, 211 Ga. App. 668, 669-670 (4) (440 SE2d 256) (1994) .” Gentry v. State, 226 Ga. App. 216, 218 (1) (485 SE2d 824) (1997). See also Jones v. State, 257 Ga. at 759-760 (1) (b), (c).

2. Cosby further contends the evidence is insufficient to sustain his convictions for kidnapping because there was no evidence that the movement of the victims was made in a clandestine or surreptitious manner. Our law, however, contains no such requirement. Haynes v. State, 249 Ga. 119-120 (1) (288 SE2d 185) (1982); Chambley v. State, 163 Ga. App. 502, 503 (1) (295 SE2d 166) (1982).

Under our law, “[a] person commits the offense of kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such person against his will.” OCGA § 16-5-40 (a). Further, the slightest movement of the victim will establish asportation. Lloyd v. State, 226 Ga. App. 401, 402 (1) (487 SE2d 44) (1997); Lockett v. State, 217 Ga. App. 328, 329 (1) (457 SE2d 579) (1995) . Therefore, the evidence that the victims were required to move from one room of the apartment to another is sufficient to sustain Cosby’s convictions for kidnapping under the standard established in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

3. Cosby argues that the trial court’s refusal to charge on the lesser included offense of false imprisonment requires reversal. We disagree.

“The complete rule with regard to giving a defendant’s requested charge on a lesser included offense is: where the State’s evidence establishes all of the elements of an offense and there is no evidence raising the lesser offense, there is no error in failing to give a charge on the lesser offense.” (Citation omitted.) Edwards v. State, 264 Ga. 131, 133 (442 SE2d 444) (1994). Here, the evidence shows the commission of the completed offense as charged. Accordingly, the trial court was not required to charge the jury on the lesser included offense. Peebles v. State, 260 Ga. 430, 433 (4) (396 SE2d 229) (1990).

Decided October 15, 1998.

Kendal D. Silas, for appellant.

J. Tom Morgan, District Attorney, Elisabeth G. Macnamara, Barbara B. Conroy, Assistant District Attorneys, for appellee.

Judgment affirmed.

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


text:
    A98A1514.
    INTERNATIONAL CAPITAL REALTY INVESTMENT COMPANY et al. v. WEST.
    (507 SE2d 545)
   McMurray, Presiding Judge.

Plaintiffs International Capital Realty Investment Company (“International”) and its president, Dr. Thomas H. Hall, brought this contract action in the State Court of DeKalb County, Georgia, alleging defendant A. Davidson West “is a non-resident who has transacted business through his agent or agents in the State of Georgia [and further] owns, uses, or possesses real property situated in this [S]tate and is therefore subject to the venue and jurisdiction of [the State Court of DeKalb County]. . . . Defendant, through his agent, [attorney] HARMON CALDWELL in DeKalb County, Georgia made, executed and delivered a promissory note payable to the plaintiff [International], a Cayman corporation^ but that] Defendant has failed and refused to pay the indebtedness represented by said note.” Plaintiff International demanded the principal sum of $66,666.56, plus interest (in the amount of $48,529.11 and accruing at $18.26 daily) plus attorney fees. In a second count, plaintiff Dr. Hall alleged that “Defendant, through his authorized agent in DeKalb County, agreed to pay the Plaintiff $400.00 per month beginning May 6,1989, for Plaintiff’s storage of the Defendant’s furniture ... by leaving the same in Plaintiff’s guest house in the Bahamas.”

Defendant was personally served with a second original by the Sheriff of Sarasota County, Florida. He admitted that plaintiff Dr. Hall “communicated with Harmon W. Caldwell, Jr., an attorney . . . who was an agent of the Defendant regarding the storage by Plaintiff [Dr.] Hall of the Defendant’s furniture for a specified rate each month . . .” and further admitted “he agreed to pay plaintiff $400 per month beginning May 6, 1989, for boxing and storing defendant’s furniture in plaintiff’s downstairs efficiency unit,” but denied the material allegations of any breach. The answer also contends the State Court of DeKalb County “lacks jurisdiction over defendant.”

After discovery, defendant moved to dismiss the complaint on this ground, supporting his motion with the following undisputed circumstances: defendant is a resident of Florida and has been since 1987. On May 6,1989, defendant was indebted to Dr. Hall’s company, International, “in the principal amount of $66,666.56 for unpaid rent on a house he leased from [International] in the Bahamas.” “[I]n satisfaction of this rent obligation, [defendant West gave] plaintiff International ... a note in the principal amount of $66,666.56 with interest. . . .” The note recites that it was entered into by defendant in Sarasota, Florida. Contingent upon the “final resolution or disposition of [defendant’s] certain [civil] action . . . pending in the United States District Court for the Northern District of Georgia, Atlanta Division,” defendant promised to pay International, “a Cayman corporation ([here]after referred to as ‘Payee’), at Nassau, Bahamas, or such other place as shall be designated by Payee in writing, the principal sum. . . .” Defendant “never came to Georgia to negotiate the note, nor does the note contemplate performance in Georgia. [According to defendant, the] only connection Georgia has to the note is that [defendant’s] former counsel in [the] federal court suit, Harmon Caldwell, who lives in Georgia, mailed the note to plaintiff Dr. Hall [in the Bahamas] and, according to Dr. Hall’s deposition, had two or three telephone conversations with Dr. Hall regarding the terms of the note and the box and storage agreement. . . . Neither plaintiff is a resident of Georgia or even the United States, and neither plaintiff came to Georgia to negotiate, execute or perform either the note or the box and storage agreement. ... At the time this suit was filed, and for the preceding ten years, [defendant personally] owned no real property in Georgia.” But “Mr. West came back to visit the Bahamas in late January 1993, and stayed as a guest in [Dr. Hall’s] house for approximately one week. At that time, [defendant] told [Dr. Hall] that the lawsuit referenced in [the promissory note] had just settled, and [defendant] would be getting some real estate which he could sell to pay what he owed to [Dr. Hall] personally for storage for his furniture and to [International] on the note.” Defendant further deposed that he “do[es] not regularly do or solicit business, or engage in any other persistent course of conduct, or derive substantial revenues from goods used or consumed or services rendered in the State of Georgia. . . .”

In rebuttal, plaintiffs Dr. Hall and International pointed to the following circumstances: defendant was born, reared and educated in Atlanta, Georgia, and was a real estate developer in the 1970s. Since the beginning of 1997, defendant’s “current full-time occupation [is managing] some real estate properties . . .” in Hall County, Georgia, and Gwinnett County, Georgia. These properties are owned by defendant through closely held Georgia corporations. His management responsibilities “take [him] into the Atlanta area periodically.” Defendant “understood [attorney] Caldwell was in communication with Dr. Hall about [storing defendant’s furniture and further] understood [attorney] Caldwell was also in communication with Dr. Hall about the promissory note for the unpaid rent. . . . On January 22, 1993, [defendant] entered into a settlement agreement with respect to [his] federal court suit. The agreement provided that . . . [defendant or his] designee would receive six parcels of real property. At the time this suit was filed by Dr. Hall and his corporation [International], . . . some but not all of the settlement properties had been distributed to [defendant’s] designees, [but] none to [defendant] personally. . . . [Defendant] is the sole shareholder and president of each of the three grantees . . .” of the distributed settlement properties. These properties are the lots in Hall County, Georgia, and Gwinnett County, Georgia.

The trial court granted defendant’s motion and dismissed the action “for lack of personal jurisdiction. . . .” This appeal followed. In two related enumerations, plaintiffs contend dismissal is erroneous because defendant transacted business with plaintiffs through a Georgia agent and also because defendant owned an interest in Georgia real property. Held:

1. The policy of the Georgia Long Arm Statute, OCGA § 9-10-91, is to exercise jurisdiction over nonresident defendants to the maximum extent permitted by procedural due process. Bradlee Mgmt. Svcs. v. Cassells, 249 Ga. 614, 617 (292 SE2d 717). Defendant bears the onus of proving lack of personal jurisdiction. Easterling v. Easterling, 231 Ga. 90, 91 (1) (200 SE2d 267). “If the motion is decided on the basis of written submissions alone, as was the motion in this case, disputes of fact found in the affidavits are resolved in favor of [the exercise of jurisdiction, and the appellate standard of review is non-deferential].” Scovill Fasteners v. Sure-Snap Corp., 207 Ga. App. 539, 540 (428 SE2d 435).

Viewing the largely undisputed facts in the light most favorable to the exercise of personal jurisdiction over a nonresident defendant, the evidence authorizes a conclusion that defendant’s agent in DeKalb County, Georgia, attorney Caldwell, drafted a promissory note with defendant as maker, in favor of plaintiff International. Attorney Caldwell forwarded the note to defendant, who signed the same in Sarasota, Florida. Attorney Caldwell then forwarded the executed promissory note to plaintiffs International and Dr. Hall in the Bahamas. By its terms, the note is payable in the Bahamas.

As to the furniture storage agreement, plaintiff Dr. Hall received two or three telephone calls in the Bahamas from Attorney Caldwell, authorizing the favorable inference that the calls originated from counsel’s office in DeKalb County, Georgia. After Dr. Hall investigated various boxing, shipping, and storage alternatives, attorney Caldwell inquired whether Dr. Hall would personally box and store defendant’s furniture at a suitable space on the premises leased by defendant for $400 per month. This arrangement was accepted and performed by Dr. Hall at his property in the Bahamas. In June 1993, defendant returned to the Bahamas for a week and informed Dr. Hall that defendant’s federal case in Atlanta was about to settle, and that Dr. Hall and International would be paid out of the proceeds of that settlement. But, defendant never gave either plaintiff an assignment of his settlement rights nor a security interest in any proceeds of the federal case.

2. “A court of this [S]tate may exercise personal jurisdiction over any nonresident . . . as to a cause of action arising from any of the acts, omissions, ownership, use, or possession enumerated in this Code section, in the same manner as if he were a resident of the [S]tate, if in person or through an agent, he . . . [transacts any business within this [Sjtate.” OCGA § 9-10-91 (1). “Mere telephone or mail contact with an out-of-state defendant [or his agent], or even the defendant’s visits to this state, is insufficient to establish the purposeful activity with Georgia required by the ‘Long Arm’ statute. E.g., O. N. Jonas Co. v. B & P Sales Corp., 232 Ga. 256 (206 SE2d 437) (1974).” Wise v. State Bd. for &c. Registration of Architects, 247 Ga. 206, 208 (2), 209 (274 SE2d 544). “ ‘[P]rior negotiations and contemplated future consequences, along with the terms of the contract and the parties’ actual course of dealing . . . must be evaluated in determining whether the defendant purposely established minimum contacts within the forum.’ [Cit.]” Mayacamas Corp. v. Gulfstream Aerospace Corp., 190 Ga. App. 892 (1), 893 (380 SE2d 303). Accord Signet Bank/Virginia v. Tillis, 196 Ga. App. 433, 435 (396 SE2d 54). This “purposeful availment requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of random, fortuitous, or attenuated contacts.” (Citations and punctuation omitted.) White v. Roberts, 216 Ga. App. 273, 274 (1) (454 SE2d 584).

In our view, the undisputed evidence indicates that any Georgia connections with the business transactions giving rise to International’s suit on the promissory note executed in Florida and payable in the Bahamas and Dr. Hall’s claim for payment after he performed his obligations in the Bahamas under the furniture storage agreement are too random, fortuitous, and attenuated to authorize haling a Florida resident into the State Court of DeKalb County, Georgia, for suit on contracts to be performed at Nassau, in the Bahamas. Signet Bank/Virginia v. Tillis, 196 Ga. App. 433, 436, supra. “The rule that controls is our statute, which requires that an out-of-state defendant must do certain acts within the State of Georgia before he can be subjected to personal jurisdiction. Where, as here, it is shown that no such acts were committed, there is no jurisdiction.” Gust v. Flint, 257 Ga. 129, 130 (356 SE2d 513).

Decided October 15, 1998

Gibson, Deal & Fletcher, John W. Gibson, for appellants.

Schreeder, Wheeler & Flint, Timothy C. Batten, for appellee.

3. Plaintiffs also contend personal jurisdiction is properly exercised under OCGA § 9-10-91 (4) because defendant’s close corporations own Georgia real estate. We disagree.

“The mere fact of title ownership of realty in Georgia will not support the exercise of personal jurisdiction. Jurisdiction must be predicated on the existence of ties among the defendants, this state, and the litigation. . . .” Hart v. DeLowe Partners, Ltd., 147 Ga. App. 715, 717 (2) (C) (250 SE2d 169). “[T]he requirement that a cause of action ‘arise out of’ activities within the state (OCGA § 9-10-91), applies ... to the exercise of personal jurisdiction over nonresidents.” (Emphasis omitted.) Allstate Ins. Co. v. Klein, 262 Ga. 599, 600 (422 SE2d 863). In the case sub judice, neither cause of action arises because defendant “[o]wns, uses, or possesses any real property situated within this state.” OCGA § 9-10-91 (4). The absence of a security interest in the proceeds of the federal action, namely the real property defendant’s designee corporations received in settlement, is sufficient to distinguish the case sub judice from cases such as Regante v. Reliable-Triple Cee of North Jersey, 251 Ga. 629, 630 (1) (308 SE2d 372); Hart v. DeLowe Partners, Ltd., 147 Ga. App. 715, supra; and Schwartz v. C & S Mtg. Co., 142 Ga. App. 682, 683 (1) (236 SE2d 856). The trial court correctly granted defendant’s motion to dismiss for lack of personal jurisdiction. OCGA § 9-11-12 (b) (2).

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.


text:
    A98A1674.
    SIMPSON v. THE STATE.
    (507 SE2d 860)
   Judge Harold R. Banke.

Jimmy Collins Simpson was convicted of child molestation and statutory rape. He enumerates three errors on appeal.

This case arose after Simpson moved in with the victim’s older sister, who was also the victim’s legal guardian. After the 13-year-old victim appeared withdrawn and exhibited gynecological problems, her sister decided to take her to the doctor. Upon learning of this decision, the victim “had a fit,” until she finally told her sister that she did not want to go because Simpson had “messed with her sexually . . . several times.”

The sister contacted the appropriate authorities, and Simpson was indicted on the two counts, both of which were alleged to have occurred during the same one-month period. The first, child molestation, charged that Simpson fondled the victim’s vagina. The statutory rape count charged that Simpson engaged in sexual intercourse with the victim. Held:

1. Simpson maintains the trial court erred in admitting as res gestae evidence of a third incident of sexual abuse which the child reported to the State only days before trial, notwithstanding lack of proper notice under Uniform Superior Court Rule 31.1.

Nothing in USCR 31.1 prohibits the introduction of similar transaction evidence which is “ ‘immediately related in time and place to the charge being tried, as part of a single, continuous transaction.’ [Cit.]” Paradise v. State, 212 Ga. App. 166, 168 (2) (441 SE2d 497) (1994). “‘Even though a defendant is not charged with every crime committed during a criminal transaction, every aspect of it relevant to the crime charged may be presented at trial. This is true even if the defendant’s character is incidentally placed in issue.’ [Cits.]” Burton v. State, 212 Ga. App. 100 (1) (441 SE2d 470) (1994).

Although the indictment charges that the offenses occurred during a one-month period in December 1996, the record shows that the various events at issue occurred within a few days, with Simpson’s behavior escalating from touching the victim’s breast to mutual genital stimulation, to intercourse. At trial, the young victim agreed that the purported similar transaction, an additional act of intercourse, occurred “a few days” after Simpson and she first had intercourse.

In Burton, we found that evidence of such escalating unindicted sex acts occurring over the same two-week period in which the indicted offenses were committed was properly admitted as res gestae. Burton, 212 Ga. App. at 100 (1). We further observed in Branam v. State, 204 Ga. App. 205, 208 (5) (419 SE2d 86) (1992), that repeated unindicted acts of sexual abuse which occurred over several months constituted res gestae. See Close v. State, 195 Ga. App. 652, 654 (2) (394 SE2d 563) (1990); Merrifield v. State, 194 Ga. App. 734, 735 (2) (392 SE2d 725) (1990); Garrett v. State, 188 Ga. App. 176, 177 (2) (372 SE2d 506) (1988). This authority precludes a finding that the trial court abused its discretion in admitting the evidence at issue. Altman v. State, 229 Ga. App. 769, 770 (3) (495 SE2d 106) (1997).

2. Simpson argues that his statutory rape conviction cannot stand absent corroboration of the victim’s testimony. While this is a correct statement of the law, the requisite quantum of corroboration is slight evidence, so long as it tends to prove the incident occurred as alleged. Collins v. State, 229 Ga. App. 658, 660 (1) (b) (495 SE2d 59) (1997). Thus, the victim’s prior consistent statements, as recounted by their recipients, can satisfy OCGA § 16-6-3’s corroboration requirement. Turner v. State, 223 Ga. App. 448, 450 (2) (477 SE2d 847) (1996).

Decided October 15, 1998

Carl S. Free, for appellant.

Darrell E. Wilson, District Attorney, Christopher M. Quinn, Assistant District Attorney, for appellee.

Here, the victim told both her sister and the investigator for the Department of Family & Children Services that Simpson had sexually abused her. Notwithstanding Simpson’s contention to the contrary, the victim’s various statements to others, while differing in the degree of detail, are not conflicting. In addition, the examining physician testified that the victim’s hymen was not intact. See Farmer v. State, 215 Ga. App. 243, 244 (450 SE2d 271) (1994). Taken as a whole, such evidence was sufficient to corroborate the victim’s testimony.

3. The trial court did not commit reversible error by admitting sexually explicit letters Simpson wrote to the victim’s sister. “When a defendant is charged with sexual offenses, pornographic videotapes and pictures found lawfully in his possession are relevant and admissible ... to show defendant’s lustful disposition.” Altman, 229 Ga. App. at 771 (4). It follows that a pornographic letter the defendant composed would be admissible for the same purpose. Miller v. State, 219 Ga. App. 213, 217 (3) (464 SE2d 621) (1995) (video of child molester committing autoerotic acts admissible).

Judgment affirmed.

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


author: Johnson, Presiding Judge.

text:
    A98A2142.
    PEEK v. THE STATE.
    (507 SE2d 553)
   Johnson, Presiding Judge.

Following a bench trial, Peek was found guilty of aggravated assault. He appeals his conviction. We affirm.

1. Peek contends the evidence was insufficient to support his conviction of aggravated assault. OCGA § 16-5-21 (a) (2) provides: “[a] person commits the offense of aggravated assault when he or she assaults . . . [w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.”

Viewed in a light most favorable to support the verdict, the evidence shows that two men were walking after dark and found an apparently abandoned sofa on the sidewalk. When they picked up the sofa, a group of men confronted them. The victim was attacked and beaten with fists and an object he described as a round “fence pipe.” The victim nearly died and remains blind in one eye as a result of this assault.

At trial, the victim identified Peek as his principal assailant. An eyewitness testified that she saw Peek pick up an object that looked like a pole or stick and use it to repeatedly strike the victim. A wooden fence post with blood on it was located a short distance from where the police found the victim. Peek denied being at the scene of the crime.

Peek’s arguments regarding the identification testimony go to the weight and credit to be given the evidence by the factfinder and not the sufficiency of the evidence. On appeal from a criminal conviction, we determine only the legal sufficiency of the evidence below and do not weigh the evidence or assess witness credibility. Jones v. State, 233 Ga. App. 291, 292 (1) (503 SE2d 902) (1998); Lattimer v. State, 231 Ga. App. 594, 595 (499 SE2d 671) (1998). The evidence was sufficient to enable a rational trier of fact to find Peek guilty of aggravated assault beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Jones, supra; Lattimer, supra.

2. Peek asserts that the trial court erred in eliciting evidence of bad character from the eyewitness. In response to Peek’s contention that the eyewitness was being untruthful because she had a vendetta against him, the trial judge asked the eyewitness whether she ever had any conflict or disagreement with Peek prior to witnessing the aggravated assault. The eyewitness replied: “We did have a conflict as far as . . . [h]im, Milledge Peek, and his friends were selling drugs out of the front —.” The trial court sustained an objection and stated, “I’m not going to let that interfere with my —” at which point the witness interrupted. The eyewitness then detailed some non-drug-related conflicts she had with Peek.

First, this testimony went to the credibility and motivation of the eyewitness, an issue specifically raised by Peek. If evidence is relevant and material to a case, it is not inadmissible because it incidentally puts a defendant’s character in issue. See Cherry v. State, 174 Ga. App. 145, 146 (4) (329 SE2d 580) (1985). This is particularly true where, as here, the appellant raised the issue of the credibility and motivation of the eyewitness. See id. Second, this case was tried before a judge sitting without a jury. It is presumed that a trial judge, when he sits as the trier of fact, considered only legal evidence, unless it appears from the judgment that the trial judge considered testimony which should have been excluded. Power v. State, 231 Ga. App. 335, 337 (1) (499 SE2d 356) (1998); Jones v. State, 194 Ga. App. 356, 357 (1) (390 SE2d 623) (1990). Even assuming that the trial court erred in eliciting evidence of Peek’s bad character, based on the record before us and the strength of the admissible evidence against Peek, such error was harmless and does not require reversal. See generally Power, supra; Jones, 233 Ga. App. at 294 (6).

Decided October 15, 1998.

Peter D. Johnson, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

3. Peek argues that the bloody fence post found near the victim’s body should not have been admitted into evidence because it was not identified by either the victim or the eyewitness. We disagree. In allowing the exhibit into evidence, the trial judge stated, “I think the chain has been sufficiently established. I’m satisfied as to its authenticity. The item, the fence post, without being shown to the previous witness ... is the same diameter. She estimated, as I recall her holding out her hand, she held out a spread of about three or three and a half inches diameter. And her description of that item that she observed in Mr. Peek’s hand just happens to almost be identical to the physical presence of this particular exhibit — 1.” In addition, the fact that the bloody fence post was discovered near the victim’s body supported the trial court’s determination that it was the weapon used in the attack.

The Supreme Court has held that “a weapon may be admissible if the identification is sufficient to allow the [trier of fact] to decide, under the evidence relative to identification, whether it is the identical weapon used by the defendant. [Cits.]” Dunn v. State, 263 Ga. 343, 345 (3) (434 SE2d 60) (1993). Based on the identification testimony presented, the trial court did not abuse its discretion in admitting the fence post into evidence.

Judgment affirmed.

Smith, J., and Senior Appellate Judge Harold R. Banke concur.


author: Smith, Judge.

text:
    A98A1182, A98A1244.
    KINNEY v. THE STATE (two cases).
    (506 SE2d 441)
   Smith, Judge.

This is appellant Bruce Michael Kinney’s third appearance before this Court. In an earlier unpublished opinion, we affirmed Kinney’s 1994 conviction for violating a protective order by following his estranged "wife. Kinney v. State, 218 Ga. App. XXXII (1995). Later, Kinney was indicted by a Clayton County grand jury for aggravated assault, aggravated battery, and four counts of aggravated stalking arising out of the shooting of his estranged wife in January 1995. In Kinney v. State, 223 Ga. App. 418 (477 SE2d 843) (1996), this Court found that prosecution of two of the four aggravated stalking counts was barred by Kinney’s previous conviction for violating the protective order. The case now returns to this Court after a jury trial and Kinney’s conviction on one count each of aggravated assault, aggravated battery, and aggravated stalking. Kinney’s motion for new trial as amended was denied, and he appeals. Finding no error, we affirm.

1. Kinney enumerates the general grounds. His estranged wife positively identified him at trial as the man who entered her place of work and shot her in the face at close range. This alone is sufficient to convict. Perryman v. State, 208 Ga. App. 754, 755 (1) (431 SE2d 742) (1993). Kinney asserted a defense of alibi, but the State presented evidence controverting that defense. Kinney offered testimony that he was having a car serviced on the evening in question. In response, the State presented evidence that Kinney’s whereabouts were unaccounted for from approximately 5:00 p.m. to 6:40 p.m. and that he had access to a second car he had left at the dealership earlier. Police officers testified they retraced the route between the dealership and the victim’s place of work and were able to make the round trip within this time. While Kinney produced a calling card bill showing two long distance calls made from the dealership twenty minutes after the shooting, the receptionist at the car dealership testified that calling card calls cannot be made from the dealership. The State also elicited testimony from a telephone security engineer that the telephone number listed on Kinney’s bill did not necessarily reflect the call’s place of origin and that it was possible to forward a calling card call through the listed number from a mobile telephone.

Kinney attacks the victim’s testimony as inconsistent with her earlier statements to police and others. He also challenges the State’s evidence contradicting his alibi. But after the jury’s verdict of guilty, Kinney can no longer rely on the presumption of innocence, and this Court cannot weigh evidence or judge the witnesses’ credibility. We must construe the evidence to uphold the verdict and determine only whether the evidence was sufficient to enable any rational trier of fact to find Kinney guilty of the crimes charged beyond a reasonable doubt. Clark v. State, 197 Ga. App. 318, 320 (1) (398 SE2d 377) (1990). Kinney’s alibi defense does not demand an acquittal because the jury was authorized to disbelieve it. Roberts v. State, 267 Ga. 669, 671 (1) (482 SE2d 245) (1997). The evidence presented here was sufficient under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Kinney acknowledges that the trial court gave a limiting instruction on the use of evidence of his prior difficulties with his wife. He nevertheless contends that the trial court erred because it should also have given additional sua sponte instructions at the time the evidence was admitted. But the Supreme Court of this State has already considered and rejected this contention in Spearman v. State, 267 Ga. 600 (481 SE2d 814) (1997). In Spearman, evidence of an earlier violent confrontation between the defendant and victim was admitted “to show the defendant’s motive, intent or bent of mind toward the victim.” Id. at 601 (2). The Supreme Court observed that the trial court correctly instructed the jury on the use of evidence of the history between the parties and added that “in the absence of any request for contemporaneous or additional limiting instruction, there was no error. [Cit.]” Id. at 601 (4).

The decisions cited by Kinney involve the use of limiting instructions on similar transaction evidence under Williams v. State, 261 Ga. 640, 641 (2) (409 SE2d 649) (1991). See, e.g., Hinson v. State, 229 Ga. App. 840, 842 (3) (494 SE2d 693) (1997) (cert. granted) (“extrinsic acts or similar crimes evidence”); Belt v. State, 227 Ga. App. 425 (489 SE2d 157) (1997) (cert. granted) (no limiting instruction “ever given to the jury” on two prior cocaine sales admitted under Williams). “[Ujnlike similar transactions, prior difficulties between the parties are not independent acts or occurrences, but are connected acts or occurrences arising from the relationship between the same people involved in the prosecution and are related and connected by such nexus. [Cits.]” McTaggart v. State, 225 Ga. App. 359, 366 (2) (483 SE2d 898) (1997).

3. The State provided to Kinney a written notice of its intention to introduce evidence of prior difficulties under Uniform Superior Court Rules 31.1 and 31.3, listing 22 incidents of threats, harassment, stalking, and physical attacks on the victim by Kinney prior to the shooting. Kinney complains that the State’s notice of two of these incidents was inadequate. We disagree. USCR 31.3 (B) requires the State to provide “the transaction, date, county, and the name(s) of the victim(s) for each similar transaction or occurrence sought to be introduced.” This information was provided for each of the incidents in question. While the date for one transaction was not specific, an exact date is not required. “Since the State did not have a specific date of the similar transaction, it complied with USCR 31.3 by providing [Kinney] with the information it had. [Cit.]” Tidwell v. State, 219 Ga. App. 233, 236 (2) (c) (464 SE2d 834) (1995).

4. In his third enumeration of error, Kinney objects to the admission of an “espionage spy magazine” found in his automobile. His argument that admission of the magazine was error is based solely on the ground that it impermissibly placed his character in evidence. But Kinney never objected at trial on this basis. He therefore has failed to preserve this issue for review and may not raise it for the first time on appeal. Allison v. State, 217 Ga. App. 580, 582 (2) (459 SE2d 557) (1995).

5. Kinney next complains that the trial court improperly limited his cross-examination of the victim regarding her bias against him. Georgia law is well established that “[i]t is competent to show that a witness for the State entertained feelings of ill will towards the defendant. However, an investigation of the basis for such feelings of hostility is inadmissible absent a showing that the witness did not harbor ill feelings toward the defendant.” (Citations and punctuation omitted.) Seavers v. State, 208 Ga. App. 711, 712 (2) (431 SE2d 717) (1993). Here, the State offered to stipulate that the victim was biased against Kinney. Under these circumstances, Kinney was not entitled to cross-examine the victim regarding particular incidents demonstrating her ill will toward him, and the trial court did not err in limiting her cross-examination.

6. Kinney enumerates as error the State’s failure to notify him of an oral statement by the victim. But, as Kinney acknowledges, the Supreme Court of Georgia has held that the State has no obligation under OCGA § 17-16-7 to produce an oral statement made by a witness. Forehand v. State, 267 Ga. 254, 255-256 (3) (477 SE2d 560) (1996).

7. Kinney also contends that he was denied effective assistance of counsel in several respects. “In analyzing a claim of ineffective assistance of counsel, we note at the outset that a trial court’s finding that a defendant has not been denied effective assistance of trial counsel will be affirmed unless clearly erroneous. [A defendant] must overcome the strong presumption that defense counsel’s conduct falls within the broad range of reasonable professional conduct. To establish ineffective assistance of counsel, a defendant must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. The test is whether there is a reasonable probability the jury would have reached a different verdict, absent the error of counsel.” (Citations and punctuation omitted.) Williams v. State, 218 Ga. App. 785, 788 (3) (463 SE2d 372) (1995).

(a) Kinney first contends his counsel was ineffective in failing to move for the suppression of the “spy magazine” and magnetic car key found in the search of his car. But Kinney’s trial counsel did file a motion to suppress; Kinney’s complaint appears to be that his trial counsel failed to pursue the motion with sufficient vigor to exclude the evidence of which he complains. Although Kinney acknowledged that the items were discovered pursuant to a search warrant, he contended at trial that the two items were outside the warrant’s scope. But Kinney has failed to provide any citation to the record to show that the items seized were outside the scope of the warrant; the warrant itself does not appear in the record. “It is a well-established appellate rule that the burden is on the appellant to show error by the record, and when a portion of the evidence bearing upon the issue raised by the enumeration of error[ ] is not brought up so that this court can make its determination from a consideration of it all, an affirmance as to that issue must result.” (Citations and punctuation omitted.) Ross v. State, 195 Ga. App. 624, 626 (3) (394 SE2d 418) (1990).

Kinney also contends that his trial counsel was ineffective in failing to move for redaction of parts of the spy magazine. But he has failed to show any factual basis or legal authority for the redaction he urges his counsel should have sought, merely making the conclusory assertion that the remainder of the magazine was irrelevant and prejudicial bad character evidence. The overruling of such a vague and general objection does not constitute reversible error. Royal v. State, 217 Ga. App. 459, 460 (2) (458 SE2d 366) (1995). It therefore does not provide a basis for a claim of ineffective assistance.

(b) Kinney’s contention that his trial counsel was ineffective in failing to move to strike portions of the victim’s testimony because she did not answer some questions on cross-examination is wholly without merit. The cases cited by Kinney involve witnesses who invoked their Fifth Amendment privilege and refused to answer questions on the ground that the answers might tend to incriminate them. See Smith v. State, 225 Ga. 328, 331 (7) (168 SE2d 587) (1969); Hays v. State, 16 Ga. App. 20, 21 (4) (84 SE 497) (1915); see also Kelly v. State, 209 Ga. App. 789, 793-794 (434 SE2d 743) (1993). The undisputed evidence in this case showed that the victim suffered brain damage and paralysis as a result of the shooting and an ensuing stroke. She has difficulties with speech, reading, and memory. Her memory lapses were fully explored on cross-examination by Kinney’s counsel, and the jury had the opportunity to weigh the evidence and judge the victim’s credibility. Kinney has failed to show deficient performance, prejudice to his defense, or a reasonable probability that the outcome would have been different if his counsel had moved to strike this testimony.

(c) Kinney called a telephone security engineer to identify his employer’s calling card bills in support of his alibi defense. When Kinney’s counsel asked the witness if the bills reflected the originating number of the call, the witness qualified his answer and explained that a number routed through call forwarding would not appear on the bill. On cross-examination, the State elicited further explanation of this part of the witness’s testimony on direct. Kinney now contends his counsel was ineffective in failing to object to the cross-examination testimony on the ground that it was improper opinion evidence. In a related matter, Kinney complains that trial counsel was ineffective in agreeing to stipulate to a hypothetical during cross-examination of the telephone security engineer. Such matters as calling a particular witness, questioning on direct and cross-examination, and objecting to testimony are strategic and tactical decisions and “the exclusive province of the lawyer after consultation with the client.” (Citation and punctuation omitted.) Hudson v. State, 218 Ga. App. 671, 672 (1) (462 SE2d 775) (1995).

(d) Finally, Kinney contends that trial counsel deprived him of his right to testify. The record reflects that Kinney was fully advised of his right to testily, that he consulted with trial counsel, and that he elected not to take the stand. Later in the trial, Kinney asked his counsel if he could testify on surrebuttal and if “the cross-examination would be limited to the scope of direct.” Assuming without deciding that this belated inquiry amounted to an expressed wish to testify and that trial counsel should have brought it to the attention of the court, Kinney has failed to show what his testimony would have been. It is therefore impossible to determine if the outcome of the trial was affected. See generally Goodwin v. Cruz-Padillo, 265 Ga. 614, 616 (458 SE2d 623) (1995).

In denying Kinney’s motion for new trial, the trial court concluded that trial counsel was not ineffective and that there was no reasonable probability the jury would have reached a different verdict. We do not find this conclusion to be clearly erroneous, particularly in view of the victim’s testimony positively identifying Kinney as her assailant.

Decided September 8, 1998

Reconsideration denied October 16, 1998

Patricia F. Angelí, for appellant.

Bruce M. Kinney, pro se.

Robert E. Keller, District Attorney, Todd E. Naugle, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson, P. J, and Senior Appellate Judge Harold R. Banke concur.

       Count 6 of the indictment was quashed on Kinneys demurrer. Kinney v. State, supra, 223 Ga. App. at 418.

       Two notices of appeal were filed. In Case No. A98A1182, the notice of appeal was filed by Kinney’s counsel. In Case No. A98A1244, Kinney filed a pro se notice of appeal. We have consolidated the two appeals for review.

       In Kinney’s brief, he makes several citations to “K#3072” without any further identification or explanation. This number appears to have been assigned in the trial court to one of Kinney’s previous appearances before this Court. Although it is Kinney’s obligation, not the Court’s, to provide citations to this or any other record, review of both records reveals no search warrant.

       The State contends that other portions of the magazine were relevant to show Kinney’s access to information on revenge, homicide investigations, shadowing and surveillance, professional killers, and “social engineering,” supporting the State’s argument that the assault on the victim was planned in advance.

       Trial counsel made two successful objections barring hearsay testimony and testimony not within the personal knowledge of the witness.