author:
Ellington, Judge.
      Ruffin, Judge,

text:
    A00A2439.
    WAL-MART STORES, INC. v. JOHNSON.
    (547 SE2d 320)
   Ellington, Judge.

Wal-Mart Stores, Inc. appeals from a jury verdict in favor of Polly Ann Johnson on her claims for false imprisonment, false arrest, malicious prosecution, assault and battery, and intentional infliction of emotional distress. Johnson’s claims arose from a series of events beginning with a November 11, 1994 incident at a Wal-Mart store during which she was forcibly detained by store employees and ending with her trial in magistrate court for violating a municipal ordinance against causing a disturbance. In the bifurcated trial, the jury rendered a verdict against Wal-Mart, but not against three employees who were named as co-defendants, and awarded Johnson $155,000 in compensatory damages and $320,000 in punitive damages. Wal-Mart contends it is entitled to judgment in its favor, notwithstanding the verdict, or to a new trial on the following grounds: (1) the verdict against Wal-Mart but in favor of its three employees was inconsistent and void; (2) claims for false imprisonment, false arrest, and malicious prosecution arising from a single transaction are mutually exclusive and cannot be presented to a jury together; (3) Wal-Mart’s conduct did not rise to the level of outrageousness required for a claim for intentional infliction of emotional distress; (4) the trial court erred in not charging the jury on the definition of clear and convincing evidence in the first phase of the trial; (5) the trial court’s charge on specific intent was erroneous; (6) Wal-Mart’s conduct did not demonstrate a specific intent to harm as required for an award of punitive damages in excess of $250,000; and (7) the charge was not adjusted to the evidence. For the reasons which follow, we affirm on condition that the award of punitive damages be reduced to $250,000.

Viewed in the light most favorable to support the jury’s verdict, the record reveals the following relevant facts: On the night of November 11, 1994, two Wal-Mart “loss prevention agents,” Danielle Buck and Michelle Beck, were following a group of five black females, aged 15 to 23, who were suspected of shoplifting. The group of young women split up. Beck followed two of the young women out of the store, asked to speak to them about the merchandise, and brought them to a back office. The store’s support manager, Suzanne Prather, instructed her staff via walkie-talkie, “the first black woman come out the store, grab her.”

Meanwhile, Johnson, a 54-year-old black female, was approaching the exit after completing her shopping. Johnson herself was never suspected of shoplifting. Jamie Moore, a sales associate assisting Buck, ordered Johnson to “get on the floor.” Moore admittedly did not seize Johnson because she was interfering in the shoplifting arrests. When Johnson questioned his reason for detaining her, Moore pulled her back into the store. Moore forced Johnson to the ground, hurting her knee, and held her down on the floor in a “tae kwon do stress hold” until a police officer arrived and put her in handcuffs. Prather saw Moore forcibly restraining Johnson and did not intervene. About 20 customers and employees were standing around watching.

Meanwhile, Beck had returned to the front of the store and gotten into a physical confrontation with one of the suspected shoplifters after making a racially derogatory remark. The security team brought the three remaining suspected shoplifters back into the store. Buck placed Johnson under citizen’s arrest, accusing her of a state misdemeanor. Buck did not obtain an arrest warrant, despite stating it was her duty to do so on the “arrest by a private person” form. The responding officer arranged for Johnson to be transported to the hospital and cited her for violating a municipal ordinance, “[creating a] disturbance.” A newspaper article reporting on the incident named Johnson as a suspected shoplifter.

Wal-Mart management decided to go forward with the ordinance violation charged against Johnson. Three months after the incident, Buck testified at Johnson’s trial in municipal court on the ordinance violation. The municipal court acquitted Johnson.

Johnson filed suit against Wal-Mart, Beck, Buck, and Moore. Wal-Mart appeals from the verdict in her favor.

1. Wal-Mart contends its liability, if any, was entirely derivative of the liability of its employees under the doctrine of respondeat superior. Wal-Mart contends, therefore, that the jury’s verdict, which assigned liability to Wal-Mart while assigning no liability to any of its three employees, was void and unenforceable. Wal-Mart’s argument fails for two reasons.

First, Wal-Mart failed, before the jury was dismissed, to object to the verdict on the basis that it was inconsistent. Accordingly, Wal-Mart waived any objection that the verdict was inconsistent. First Union Nat. Bank v. Boykin, 216 Ga. App. 732, 735 (1) (455 SE2d 406) (1995).

Secondly, the jury was authorized under the evidence to find that Wal-Mart was derivatively liable through the actions of employees other than the three individual defendants (such as support manager Prather) or that Wal-Mart was directly liable, such as by ratifying the actions of its employees or by directing that the prosecution against Johnson be pursued. See Taylor v. Gelfand, 233 Ga. App. 835, 837-838 (4) (505 SE2d 222) (1998); Walker v. Bishop, 169 Ga. App. 236, 242 (10) (312 SE2d 349) (1983). Consequently, we find no merit to Wal-Mart’s contention that it could be liable only if one of the three named employees was also liable. See Overground Atlanta v. Dunn, 191 Ga. App. 188, 190-191 (1) (381 SE2d 137) (1989).

2. Wal-Mart contends the trial court erred in denying its motion for directed verdict because “claims for false imprisonment, false arrest and malicious prosecution are[,] by nature, mutually exclusive,” and, therefore, “a plaintiff can only proceed [before a jury] on one of these three (3) theories.” “A directed verdict is appropriate only if there is no conflict in the evidence as to any material issue and the evidence introduced, construed most favorably to the party opposing the motion, demands a particular verdict. OCGA § 9-11-50 (a).” (Citation and punctuation omitted.) Time Warner Entertainment Co. v. Six Flags Over Ga., 245 Ga. App. 334, 341 (1) (537 SE2d 397) (2000).

In this case, Johnson presented evidence sufficient for the jury to find that on the night of November 11, 1994, Wal-Mart personnel unlawfully detained her and deprived her of her personal liberty, purportedly on suspicion of shoplifting. Johnson was not arrested for shoplifting. Thus, Johnson presented a jury issue on her claim of false imprisonment under OCGA § 51-7-20. Burrow v. K-Mart Corp., 166 Ga. App. 284, 287-289 (3) (304 SE2d 460) (1983).

Further, Johnson presented evidence sufficient for the jury to find that on the same night Wal-Mart personnel placed her under “citizen’s arrest” without a warrant, maliciously and without probable cause, for the state misdemeanor of creating a disturbance. No formal charge was ever filed, however, which effectively dismissed the misdemeanor charge. Thus, Johnson presented a jury issue on her claim of false arrest under OCGA § 51-7-1. Garner v. Heilig-Meyers Furniture Co., 240 Ga. App. 780, 781-782 (1) (525 SE2d 145) (1999); Simmons v. Kroger Co., 218 Ga. App. 721, 722-723 (1) (463 SE2d 159) (1995). See OCGA §§ 51-7-2 (definition of malice); 51-7-3 (definition of lack of probable cause).

Finally, Johnson presented evidence sufficient for the jury to find that Wal-Mart prosecuted Johnson, maliciously and without probable cause, on the municipal disturbance ordinance and that the magistrate acquitted her. Thus, Johnson presented a jury issue on her claim of malicious prosecution under OCGA § 51-7-40. Garner, 240 Ga. App. at 781-782 (2); Wilson v. Bonner, 166 Ga. App. 9, 11-12 (1) (303 SE2d 134) (1983).

Johnson did not have to choose between her claims for false imprisonment, false arrest, and malicious prosecution because different conduct supported each claim: the initial detention on suspicion of shoplifting (false imprisonment), the citizen’s arrest on a state misdemeanor (false arrest), and prosecution on the ordinance (malicious prosecution). Because there was some evidence as to each material issue and the evidence did not demand a verdict in favor of WalMart, the trial court did not err in denying Wal-Mart’s motion for directed verdict on Johnson’s claims for false imprisonment, false arrest, and malicious prosecution.

3. Wal-Mart contends that the trial court erred in denying its motion for directed verdict as to Johnson’s claim for intentional infliction of emotional distress in that its conduct did not as a matter of law rise to the level of outrageousness required for recovery. In this case, Wal-Mart personnel physically detained Johnson on suspicion of shoplifting simply because she was a black female. Despite confirming that Johnson was not involved with the group of shoplifters, Wal-Mart personnel insisted on arresting and prosecuting Johnson. Because Wal-Mart prosecuted Johnson, a newspaper article named her as a suspected shoplifter, holding her up for public ridicule.

The trial court did not err in concluding a rational and impartial jury could find that Wal-Mart’s conduct met the requisite level of outrageousness and egregiousness to sustain a verdict for intentional infliction of emotional distress. K-Mart Corp. v. Lovett, 241 Ga. App. 26, 28-29 (3) (525 SE2d 751) (1999); Sevcech v. Ingles Markets, 222 Ga. App. 221, 224 (3) (474 SE2d 4) (1996).

4. Wal-Mart contends, because the jury was required to determine whether Johnson’s claim for punitive damages was supported by clear and convincing evidence, the trial court erred in not charging the jury on the definition of clear and convincing evidence in the first phase of the trial. See OCGA § 51-12-5.1 (b). At the conclusion of the first phase of the trial, the trial court charged the jury as follows:

[Punitive] damages cannot be imposed unless there is wilful misconduct, malice, fraud, wantonness, oppression or that . . . entire want of care wliich would raise the presumption of the conscious indifference to the consequences. Punitive damages may be awarded only in such tort actions in which those items are proven by clear and convincing evidence.

The trial court did not define the clear and convincing evidence standard despite defense requests. The jury returned a verdict awarding Johnson compensatory damages against Wal-Mart and making a finding that punitive damages were appropriate. The trial court immediately began the second phase of the trial for the jury to determine the amount of punitive damages. After Johnson introduced one exhibit and asked one witness five questions, the trial court instructed the jury on the law pertaining to punitive damages, including a definition of the clear and convincing evidence standard. The jury returned a verdict for punitive damages, specifically finding that Wal-Mart acted, or failed to act, with the specific intent to cause harm.

The trial court erred in failing to define the clear and convincing evidence standard at the end of the first phase of the trial before the jury applied that standard in determining whether punitive damages were appropriate.H & H Subs, Inc. v. Lim, 223 Ga. App. 656, 658-659 (2) (478 SE2d 632) (1996); Gen. Motors Corp. v. Moseley, 213 Ga. App. 875, 885 (8) (d) (447 SE2d 302) (1994). The jury, however, immediately had the opportunity to reconsider whether punitive damages were appropriate after receiving a charge including a definition of clear and convincing evidence. Under the unique circumstances of this case, we find Wal-Mart was not harmed by the incomplete charge because the overwhelming evidence showed wilful misconduct more than meeting the clear and convincing evidence standard of OCGA § 51-12-5.1 (b). See Clarke v. Cotton, 263 Ga. 861, 862 (440 SE2d 165) (1994).

5. Wal-Mart contends the trial court erred in denying its motion for directed verdict on Johnson’s claim for punitive damages in excess of $250,000 because its conduct did not as a matter of law demonstrate a specific intent to harm as required for such an award under OCGA § 51-12-5.1 (f). We disagree. Johnson presented evidence sufficient for the jury to find that Wal-Mart personnel detained Johnson without reason, causing her physical pain, outrage, and public humiliation, and compounded their offense by arresting and prosecuting her in retaliation for her objecting to the rough treatment and illegal detention or in an attempt to justify their actions. K-Mart Corp. v. Hackett, 237 Ga. App. 127, 131 (2) (514 SE2d 884) (1999). The trial court did not err in denying Wal-Mart’s motion for a directed verdict.

6. Wal-Mart contends the trial court’s charge on specific intent was erroneous. The court charged as follows:

The term specific intent to cause harm . . . does, not require that plaintiff prove the defendant specifically intended to cause injury to the specific victim of the defendant’s conduct. . . . Instead, if an individual does an act which has clearly foreseeable consequences and as a proximate result of that act, those consequences occur, then under the law, he is presumed to have intended those consequences. It is for you, the jury, to determine whether, under the existing circumstances and conditions, defendant has exhibited such a wilful and wanton and reckless disregard for human life and safety as to constitute the legal equivalent of specific intent to cause harm.

This charge was erroneous. A finding of specific intent to cause harm may not be based on the rebuttable presumption that a person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts as set forth in OCGA § 16-2-5. J. B. Hunt Transport v. Bentley, 207 Ga. App. 250, 255 (2) (427 SE2d 499) (1992). Such an error in the charge of the court regarding the basis of an award of punitive damages is ordinarily presumed to be prejudicial and harmful, and we cannot find on this record that it was harmless. Drug Emporium v. Peaks, 227 Ga. App. 121, 126 (2) (a) (488 SE2d 500) (1997). Therefore, the judgment can be affirmed only on the condition that, within ten days from the date the remittitur of this Court is made the judgment of the trial court, Johnson agrees to strike therefrom the award of punitive damages in excess of $250,000; otherwise, the award of punitive damages is reversed. Id. at 131; J. B. Hunt Transport, 207 Ga. App. at 255 (2).

7. Wal-Mart’s remaining enumerations of error have been considered, and each has been found to be abandoned, without merit, or moot.

Judgment affirmed on condition.

Andrews, P. J., concurs. Ruffin, J., concurs fully and specially.

Ruffin, Judge,

concurring specially.

I concur fully with all that is said in the majority opinion. I write separately, however, because it appears from the transcript that peace officers may be misapprehending the nature of a citizen’s arrest under Georgia law.

The evidence shows that Johnson was arrested by Danielle Buck, the Wal-Mart loss prevention agent on duty at the time of the incident. When Buck arrested Johnson, she completed a Wal-Mart form titled “ARREST BY PRIVATE PERSON.” The form provides in part: “I have arrested . . . [Johnson] for a misdemeanor violation of the state law and request you, as a peace officer, to transport this person to the Winder City Jail. I understand that it is my duty to obtain an arrest warrant as quickly as possible.” As stated by the majority, Buck never obtained a warrant, and Johnson was never prosecuted for the alleged state misdemeanor violation.

The officer who transported Johnson to jail repeatedly testified that Wal-Mart conducted a citizen’s arrest, that all he did was transport Johnson, and that because Wal-Mart “didn’t specify at the time if they wanted to make it a state charge or not,” he issued Johnson a City of Winder citation for violating a local ordinance. It appears from the officer’s testimony that he believed the Wal-Mart loss prevention agent had the option of arresting Johnson for committing either a state misdemeanor or violating a local ordinance. This is not the case.

Under Georgia law, “[a] private person may arrest an offender if the offense is committed in his presence or within his immediate knowledge.” However, because the Code section establishing this authority is in “derogation of the common law protecting the liberty of the citizen,” it is strictly construed. So construed, our Supreme Court has ruled that it authorizes arrest only for “offenses amounting to a misdemeanor or a felony [under state law], and not [for] infractions of municipal ordinances as such.”

Thus, it is clear that Wal-Mart’s agent arrested Johnson for a state law misdemeanor violation because her authority extended only so far. As stated by the majority, Wal-Mart never obtained a warrant or otherwise pursued this state misdemeanor charge, and this supported the store’s liability for false arrest. The transporting officer erroneously believed that Wal-Mart’s loss prevention agent could, as a private citizen, arrest Johnson for violating a local ordinance. The agent had no such authority, but the transporting officer nevertheless charged Johnson with violating a local ordinance. WalMart’s pursuit of this latter charge supported a verdict for malicious prosecution.

Decided March 14, 2001

Reconsideration denied April 11,2001

McLain & Merritt, Albert J. Decusati, for appellant.

James A. Goldstein, Peter A. Law, for appellee.

Peace officers who comply with the citizen’s arrest statute, act in good faith, and within the scope of their authority cannot be held liable for false arrest. However, such officers, and civilians for that matter, should be cognizant that OCGA § 17-4-60 does not authorize a private citizen to arrest an offender for a municipal violation.

       OCGA § 17-4-60.

        Graham v. State, 143 Ga. 440, 445 (3) (85 SE 328) (1915).

       (Emphasis supplied.) Id.

       OCGA § 17-4-61 (c).

       See Graham, supra.


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A01A0040.
    A01A0041.
    In the Interest of R. G., a child. In the Interest of R. G. et al., children.
    (547 SE2d 729)
   Miller, Judge.

The Carroll County Juvenile Court terminated the parental rights of Laura J. (the biological mother) to T. J. and to R. G. and terminated the parental rights of R. G.’s father, Steve G. Both Laura and Steve appeal, contending that the evidence was insufficient, that the court improperly admitted certain evidence, and that the court failed to consider placing the children with relatives. As the cases are closely related, we have consolidated the appeals. We hold that the evidence was sufficient, that the contested evidence was either admissible or harmless, and that the appellants waived any review about placing the children with relatives. Thus, we affirm.

1. In a parental rights termination case, the question for the appellate court is whether, under the evidence as construed most favorably to the court’s findings, a rational trier of fact could have found clear and convincing evidence showing (a) parental misconduct or inability and (b) that termination was in the children’s best interests. Parental misconduct or inability is shown if (i) the children are deprived, (ii) lack of parental care caused the deprivation, (iii) the cause of such deprivation is likely to continue, and (iv) the continued deprivation is likely to cause serious harm to the children.

The evidence showed that one cold November day in 1997, a caseworker with the Carroll County Department of Family & Children Services (DFACS) found six-year-old T. J. and four-year-old R. G. under the care of an eighteen-year-old half-brother in a home without heat, electricity, or food. The half-brother stated that he did not know where Laura and Steve were, that they had been gone a few days on a trucking trip, that he did not know when they were coming back, and that he had no money or means to care for the children. DFACS took the children into custody and was not contacted by either parent until December 1, over one week later, at which time Laura was unable to give an address for further contact. DFACS set an appointment with the parents to develop a reunification plan. A few days later a deprivation hearing was held, but only Steve attended, explaining that Laura was off her medication and therefore unpredictable. At Steve’s request, the court continued the hearing so that he could obtain counsel.

Neither parent appeared at the December 17 appointment to develop a reunification plan, so DFACS proceeded without them. The first goal concerned the mother’s mental health, as she had a history of emotional instability arising out of a bipolar disorder or a recurring depressed mental state to the point of psychosis. She often did not take her medication. She was to undergo a psychological evaluation, stay on any recommended medications, and maintain emotional stability. Second, she was to complete parenting classes and have consistent bi-weekly visitations with her children. Third, she was to maintain stable and secure housing. Since Steve had not legitimated R. G., he was to legitimate her before a case plan could be developed for him.

On January 7, Laura and Steve met with DFACS and reviewed the goals of the plan. The parents missed a scheduled visitation because they arrived two hours late. They became extremely hostile and abusive and refused to leave until law enforcement personnel removed them. Laura immediately returned, again requiring the presence of law enforcement to protect DFACS personnel. She then made abusive phone calls to DFACS personnel, threatening them and their children.

The next day the parents appeared at the deprivation hearing, which was again postponed at their request. The court later reviewed and incorporated the case plan and ordered the parents to comply therewith. At the postponed deprivation hearing in April 1998, the parents failed to appear, but their counsel did attend, at which time the court found clear and convincing evidence that the children were deprived as a result of parental inability and that the parents were uncooperative and had not met the goals of the case plan. The court reemphasized the need for the parents to comply with the case plan, which it appended to its order. The parents did not appeal this order.

DFACS again reviewed the case plan with Laura, and when the parents failed to comply, a panel review was held in May 1998, which the parents did not attend, but Laura’s counsel did. The panel found the parents had failed to comply with the case plan goals and recommended termination. The court in June 1998 once again ordered the parents to comply with the plan and attached a copy of the plan and panel review to its order. Notably, at this point Steve was still not formally part of the plan, as he had not yet made any effort to legitimate R. G.

To determine whether to renew custody to DFACS, the court held a second deprivation hearing in October 1998, which both parents and their counsel attended. The court again found clear and convincing evidence of deprivation caused by parental inability, which order the parents did not appeal. In fact, the parents consented to the renewal of DFACS’ custody. In October the court also entered an order announcing that DFACS intended to seek termination of parental rights.

At this point, the parents suddenly became cooperative in complying with most of the case plan. For the first time they began visiting the children on a consistent basis, and Steve filed to legitimate R. G. They began and completed parenting classes. But they did not obtain stable and secure housing. DFACS petitioned to terminate their rights in January 1999, which petition the court granted after a hearing in July 1999.

(a) Deprivation and Cause. Neither parent appealed the two deprivation orders entered in April and October 1998, which found that the children were deprived as a result of the parents’ inability to care for them. Thus, the determinations are binding on the parents and satisfy the first and second factors.

Moreover, the evidence showed that for a year or longer prior to the filing of the termination petition, Laura and Steve had failed to develop a parental bond with the children in a meaningful, supportive manner and further failed to comply with a court-ordered plan of reunification, both of which circumstances manifest that the children were without proper parental care and control. Regarding parental bond, the parents failed to contact DFACS until a week after the children were taken into custody. Over the next eleven months they made thirteen appointments to see T. J. but did not show six times and were one to three hours late on the other seven, resulting in five cancelled visits and in only two brief visits with T. J. They did not have a single on-time full visit with T. J. until November 1998, one year after DFACS had taken custody and shortly after termination proceedings had been announced.

Similarly, they did not contact DFACS about visiting R. G. until March 1998, four months after DFACS took custody in November 1997. Because of their cancellations and tardiness, they had no on-time full visit with R. G. until July 1998, which was two months after the May panel review recommended termination.

Regarding case reunification plans, the evidence showed that Laura failed to obtain a psychological evaluation until five months after the case plan instructed that she do so; she exhibited emotional instability by threatening and abusing caseworkers and by showing up, against instructions, at R. G.’s foster home and getting arrested there; she and Steve did not begin parenting classes until eleven months after the institution of the case plan and until after termination proceedings had begun; Steve did not seek to legitimate R. G. until that same time period; they failed to make the bi-weekly visits to the children; and they failed to obtain stable, secure housing, having lived in five different places (including the cab of a truck) since the plan was devised, with the most recent residence posing an outside safety hazard to the children owing to debris.

This evidence, combined with the evidence set forth earlier in this opinion, is sufficient to sustain findings on the first two factors.

(b) Likely to Continue. “Evidence of past parental conduct resulting in deprivation may be considered in determining whether the deprivation is likely to continue and cause harm to the children.” Here the parents’ repeated failure to visit their children and consistent failure to meet the case plan goal of obtaining stable housing authorize the juvenile court’s determination that deprivation would likely continue. Their admirable improvements since DFACS began seeking termination do not demand a finding that the deprivation would not continue. In the Interest of L. S. D. explained:

[A] court may find that a parent’s conduct over the years is a better predictor of future conduct. A few months of partial stability do not establish that the parent is capable of maintaining the progress. In fact, improvement that takes place only after the termination petition is filed is often unconvincing. . . . What weight to give recent improvements is a question for the trier of fact. Thus, in considering recent improvement, the trial court, not the appellate court, determines whether a parent’s conduct warrants hope of rehabilitation.

(c) Serious Harm to Children. Sufficient evidence showed that the continued deprivation would cause serious mental and emotional harm to the children. T. J. is emotionally disturbed and has a bipolar disorder requiring a stable environment to avoid deterioration and in which to receive a complex regimen of potentially toxic medications consistently and regularly. A great amount of structure, supervision, and consistency is mandated to stabilize T. J.’s propensity to violence and uncontrolled behavior. Since being placed in a structured, stable foster home, T. J. is less violent and is thriving. On the other hand, Laura’s repeated failures for months to appear for scheduled visits deeply disappointed T. J., and her later visits ended up upsetting the child greatly.

Similarly, when after eight months Laura and Steve finally visited R. G., the child responded negatively and separated from them easily. R. G. responded negatively to their other visits also. R. G. is now receiving counseling for special needs. R. G. has done so well in foster care that Steve even requested that the foster parents adopt the child if R. G. cannot be returned to him.

(d) Best Interests. Sufficient evidence supported the court’s findings that termination was in the best interests of the children, considering their physical, mental, emotional, and moral condition and needs, particularly their need for secure and stable homes. Those same factors proving the parents’ inability to properly raise their children may also show that termination is in the children’s best interests. Here the progress of the children in foster care combined with their special needs and their negative reactions to their parents authorizes the court’s determination that termination was in their best interests.

2. Laura and Steve complain that the trial court erred in admitting the case plans into evidence. They argue that because they were not served with summons, process, and notice for the deprivation actions in which these case plans were approved, the case plans were inadmissible. Setting aside the fact that there is no requirement that case plans are only admissible if approved at a properly noticed deprivation hearing, we hold that in any case the matter has been waived. Both parents’ counsel appeared at the two deprivation hearings, and the parents themselves appeared at the second hearing. Neither counsel nor parents objected or otherwise raised the issue of proper notice or service at the deprivation hearings, thereby waiving this issue.

3. The parents contend that the court erred in admitting a single court-ordered home evaluation into evidence. They argue that under OCGA § 15-11-12 (a), until an adjudication of deprivation is made, the court may not order a home evaluation to be made. They further argue that under OCGA § 15-11-56 (c), such an evaluation is admissible only in dispositional hearings, not in hearings on termination petitions.

First, under what circumstances a court under OCGA § 15-11-12 (a) may order a home evaluation is irrelevant in determining the admissibility of a home evaluation. Moreover, here the court had twice previously adjudicated in unappealed orders that the children were deprived.

Second, In the Interest of M. L. P. held that under OCGA § 15-11-56 (c) the juvenile court properly considered certain panel reports in a termination proceeding, even though they were hearsay. M. L. P went on to hold that even if inadmissible hearsay, the reports’ admission did not constitute reversible error where other evidence sufficed to support the findings of the trial judge. “When a trial judge considers both admissible and inadmissible evidence, it is presumed that he separates the wheat from the chaff. . . .” Here the other evidence of parental inability amounting to unfitness as set forth above sufficed to sustain the termination order.

4. The parents claim that the juvenile court erred when it did not make or require a search for a suitable family member or relative for placement of the children, as required by OCGA § 15-11-103 (a) (1). But neither parent raised this issue below, thereby waiving the matter for appellate review.

Decided April 11, 2001.

Robert A. Kunz, for appellants.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Laura W. Hyman, Assistant Attorneys General, T. Michael Flinn, for appellee.

Moreover, even if the issue were preserved for appellate review, the court heard evidence on why available relatives were unacceptable and even invited further evidence on the matter if any parties so desired. Inasmuch as there is no conclusive preference given to relatives, the court retained a wide discretion to determine whether to keep the children in their stable foster homes or to place the children with a relative. Under the “any evidence” standard of review, we discern no abuse of that discretion here.

Judgments affirmed.

Andrews, P. J., and Eldridge, J., concur.

       T. J.’s father was not a party to the proceedings.

       OCGA § 15-11-94 (a); In the Interest of L. S. D., 243 Ga. App. 626 (534 SE2d 109) (2000).

       OCGA § 15-11-94 (b) (4) (A); L. S. D„ supra, 243 Ga. App. 626.

        In the Interest of J H., 244 Ga. App. 788, 792 (2) (536 SE2d 805) (2000); In the Interest of J. M. D., 221 Ga. App. 556, 558 (472 SE2d 123) (1996); see In the Interest of E. G, 225 Ga. App. 12, 15 (482 SE2d 522) (1997).

       See OCGA § 15-11-94 (b) (4) (C) (i), (iii).

       (Punctuation and footnote omitted.) L. S. D., supra, 243 Ga. App. at 627.

       (Punctuation and footnotes omitted.) Id. at 628.

       OCGA § 15-11-94 (a); In the Interest of M. G, 243 Ga. App. 707, 711 (2) (534 SE2d 442) (2000); see In the Interest of J. M. G, 201 Ga. App. 173, 175 (410 SE2d 368) (1991).

        In the Interest of S. H. R, 243 Ga. App. 720, 724 (2) (534 SE2d 161) (2000).

       See id.

       See In the Interest of D. R. W., 229 Ga. App. 571, 574-575 (2) (494 SE2d 379) (1997). Compare In the Interest of W. M. R, 180 Ga. App. 397, 398-399 (2) (349 SE2d 265) (1986) (physical precedent only) (mother was not represented by counsel and thus did not understand the significance of waiving notice). And see OCGA § 15-11-56 (c), making admissible in custody proceedings “all information helpful in determining the questions presented, including oral and written reports. . . .”

       236 Ga. App. 504, 510-511 (2) (512 SE2d 652) (1999).

       Id. at 511 (2).

       (Citation and punctuation omitted.) Id.

        M. C., supra, 243 Ga. App. at 712 (2).

        In the Interest of B. R. W., 242 Ga. App. 232, 240 (3) (530 SE2d 5) (2000) (placement under this Code section is made only if it is in the best interest of the child).

        In the Interest of C. N. G., 204 Ga. App. 239, 240 (3) (419 SE2d 42) (1992).


text:
    A01A0223.
    CLARK v. THE STATE.
    (547 SE2d 734)
   Miller, Judge.

Convicted of rape and burglary with intent to rape, Tim Clark appeals on the general grounds. He argues that the evidence is insufficient to sustain his convictions because the State adduced no physical evidence of any struggle, fight, or force, so the trial court should have granted his motion for new trial. No court except the trial court is vested by OCGA §§ 5-5-20 and 5-5-21 with the authority to grant a new trial in a matter relating to the weight of the evidence. Since the victim testified that Clark entered her residence without consent and then forcibly raped her, we affirm.

When a criminal defendant challenges the sufficiency of the evidence, the question on appeal is whether, based on the evidence as construed in favor of the verdict, a rational trier of fact could have found the defendant guilty of the charged crimes beyond a reasonable doubt. This test also applies when considering the denial of a motion for new trial that focuses on the sufficiency of the evidence.

Here the victim testified that for years Clark made sexually suggestive remarks to her (e.g., “I’m going to get it,” with “it” referring to sex with the victim), which advances she consistently rebuffed. When she rebuffed him yet again on June 14, 1998, he told her he knew how to enter her residence and could “get it.” Making good on his threat, Clark early the next morning entered her residence at about 12:30 a.m., without her consent, while she and her young daughter slept. She awoke and demanded that he leave. He refused, stating that he was “not leaving until I get it.” Over her repeated protests, he overpowered her and roughly forced his penis into her vagina. She did not scream, fearing her daughter would awake and witness the scene. On his way out the door, Clark told the terrified woman that he would “be back again.” After reporting the crimes to her sister and the police the next morning, the victim allowed a physician to examine her, who testified he found injuries to her vagina (parallel linear mucosal tears) that are uncommon in mature women and that are consistent with forced sex.

Clark admitted to entering the victim’s residence without permission and to having sex with her. But he claimed that she allowed him to stay and that she consented to the sexual intercourse.

Since Clark admitted to entering the residence without the victim’s consent and to the intercourse, but contended that she voluntarily submitted to the acts, this simply created an issue of fact to be resolved by the jury. “The jury resolved this conflict in favor of the state, and this court will not substitute its judgment for that of the jury.”

The testimony of a victim alone, even without corroboration, is sufficient to sustain a rape conviction as well as a burglary conviction. Here the victim’s testimony as to Clark forcing sexual intercourse upon her against her will, which force was further corroborated by the physician’s findings, sufficed to sustain the rape conviction. Her testimony as to his prior remarks, his entering her residence without authority, his staying despite her objection, and the subsequent rape suffices to sustain the burglary with intent to rape conviction.

Decided April 11, 2001

Thomas M. Rego, for appellant.

James R. Osborne, District Attorney, Elizabeth L. Larson, Assistant District Attorney, for appellee.

As the evidence was sufficient to sustain the convictions, the court did not err in denying the motion for new trial.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

       See Perryman v. State, 63 Ga. App. 819, 820 (5) (12 SE2d 388) (1940).

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436) (1984); accord Eubanks v. State, 239 Ga. App. 796 (1) (522 SE2d 240) (1999).

         Stallworth v. State, 150 Ga. App. 766, 767 (1) (258 SE2d 611) (1979).

       (Citations and punctuation omitted.) Id.

        Littleton v. State, 225 Ga. App. 900, 901-902 (1), (3) (485 SE2d 230) (1997); see Hutchison v. State, 239 Ga. App. 664 (1) (522 SE2d 56) (1999).

        Hutchison, supra, 239 Ga. App. at 664 (1); Littleton, supra, 225 Ga. App. at 901 (1); see OCGA § 16-6-1 (a).

        Brown v. State, 242 Ga. App. 858, 859-861 (1) (531 SE2d 409) (2000); see OCGA § 16-7-1(a).


text:
    A01A0240.
    PETRY v. ROMO.
    (547 SE2d 736)
   Miller, Judge.

The parties were divorced through a decree entered in October 1995, and permanent custody of a minor child was placed with the mother under a custody agreement. On February 14, 2000, plaintiff-appellant Steven C. Petry filed this petition for a change in child custody against his former spouse, appellee-defendant Kelly Jo Romo. Romo’s answer averred that “the same facts and circumstances [previously] were litigated” in a 1997 action which was adjudicated in August 1998. In the absence of any motion of record, the trial court dismissed this custody action based on the two-year interim of OCGA § 19-6-19 (a), finding that the August 1998 order “shows on its face that the court ruled on a petition for modification of Custody/Visitation privileges and child support.” This Court granted Petry’s application for discretionary review, and a timely notice of appeal was filed.

1. OCGA § 19-6-19 (a) provides that awards of spousal support and child support may be revised based on a showing of (i) a change in the income and financial status of either former spouse or (ii) a change in the needs of the child. That Code section further provides: “No petition may be filed by either former spouse under this subsection within a period of two years from the date of the final order on a previous petition by the same former spouse.” In Taylor v. Taylor, a majority of this Court affirmed the dismissal of a petition to modify child support brought less than two years from the date of a juvenile court order changing custody but not ruling on the prayer for an award of child support.

Decided April 11, 2001.

Sherri E. Kelley, for appellant.

On the other hand, petitions to modify child custody, as the instant petition is captioned, are governed by OCGA § 19-9-1 and may be brought without the necessity of showing a material change in any conditions and circumstances of either party or the minor, “provided that the review and modification or alteration shall not be had more often than once in each two-year period following the date of entry of the judgment.” The court is nevertheless authorized to modify child custody in any new proceeding upon a showing of a change in material conditions or circumstances.

OCGA § 19-9-5 expressly provides that the term “custody” does not include payment of child support. It follows that a prayer for a change in child custody does not of its own force pray for a simultaneous and commensurate modification of child support. The petition here does not pray for any modification of child support. Consequently, the trial court erred in dismissing the instant petition under the inapplicable provisions of OCGA § 19-6-19 (a).

2. The verified petition does allege that “[s]ince the date of the [1995] final decree, there has been a change in circumstances materially affecting the welfare of the minor child” and that the mother is an unfit custodian. The specific allegations are that the mother has been unable to hold a steady job, has moved residences nine times since the child’s birth in December 1994, continues to disparage the father to the child, continually refuses visitation to the father, has members of the opposite sex stay overnight, attempts to alienate the child’s affections from the father, and is unable to provide a proper education “in that the child has been absent from school for eighteen days as of January of 2000 for this school year.”

In our view, there are sufficient allegations of events materially affecting the child’s welfare, with some apparently occurring since the August 1998 modification decree, to authorize the instant change of custody petition based on changed circumstances. Such a petition is not subject to the two-year limitation otherwise imposed by OCGA § 19-9-1. Consequently, the trial court erred in dismissing this petition.

Judgment reversed.

Andrews, P. J., and Eldridge, J, concur.

Winn, Price & Winn, Barry R. Price, Christopher J. McFadden, for appellee.

       The August 1998 order modifies the divorce decree by lowering Petry’s child support obligation and specifying certain visitation procedures. The parties were also expressly ordered not to disparage each other in the presence of the child.

       182 Ga. App. 412 (356 SE2d 236) (1987) (whole court).

       OCGA § 19-9-1 (b).

       Id.

        Hunt v. Carter, 261 Ga. 259, 260 (2) (404 SE2d 121) (1991).


author: Ruffin, Judge.

text:
    A01A0349.
    In the Interest of C. C., a child.
    (547 SE2d 738)
   Ruffin, Judge.

The mother of C. C. appeals the juvenile court’s order in which it found C. C. to be deprived and placed her in the temporary custody of the Department of Family & Children Services (DFACS). On appeal, the mother challenges the sufficiency of the evidence supporting the juvenile court’s finding of deprivation. For reasons that follow, we reverse.

In reviewing a juvenile court’s finding of deprivation, we view the evidence

in the light most favorable to the juvenile court’s judgment to determine whether any rational trier of fact could have found by clear and convincing evidence that the child was deprived. This Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the trial court’s fact-finding and affirm unless the appellate standard is not met.

So viewed, the evidence establishes that the mother was abused as a child and spent time in foster care. The mother testified that, as a result, she has “suffered from depression” her entire life. When the mother was 21, she was raped by an acquaintance and became pregnant with C. C., who was bom on August 10, 1994.

In November 1997, the mother and C. C. moved to Georgia and began living with Mr. and Mrs. Skutka. While living with the Skutkas, the mother remained unemployed. During this time, the mother was preoccupied with her depression, and she became short-tempered with her daughter and would scream at her and spank her. Mrs. Skutka, concerned for C. C.’s safety, took over care of the child.

The mother’s mental condition deteriorated, and she began having suicidal and homicidal ideations. According to the mother, she was diagnosed at one point as being bipolar and having a “borderline personality.” In August 1998, the Skutkas became C. C.’s legal guardians. Around the same time, the mother had herself admitted to Northside Hospital where she remained for two weeks. When her stay at Northside expired, she was transferred to Georgia Regional Hospital for an additional five days. From Georgia Regional Hospital, the mother went immediately to a crisis stabilization unit located at another facility. According to the mother, she was then “dumped” into a shelter for a week and a half before voluntarily checking herself into Ridgeview Institute, a psychiatric hospital, for five weeks.

Apparently, the treatment in Georgia was ineffective because, in December 1998, the mother left for Bowling Green, Florida. For over seven months, the mother stayed at Caring People Ministries, a recovery center for women. After leaving this center, the mother stayed at a series of shelters and motels. Several days before the deprivation hearing, the mother moved back in with the Skutkas.

While C. C. was staying with the Skutkas, the mother provided no financial support. Although she was unable to see her daughter for a year, she was able to call her once a week. According to the mother, she spoke with C. C. “[m]aybe once or twice a month at the most.”

In the summer of 1999, C. C. began meeting regularly with counselor Janice Turber. The purpose of therapy was to “help the Skutkas and [C. C.] make a determination [of] what would be in the best interest as far as long-term care ... for [C. C.] and assist her in handling and adjusting to her mother’s long-term absence.” During the counseling sessions, C. C. said that her mother had hit her. In addition, Turber testified that, at the mention of her mother’s name, C. C. “would back into the corner of the sofa where she was sitting, her eyes would become wild and wide, and the head would drop and the breathing would increase.”

In October 1999, Mrs. Skutka fell and broke her wrist. At approximately the same time, C. C. contracted head lice. According to Mrs. Skutka, “head lice require a lot of hands-on stripping of eggs off of hair shafts, which is a very tedious process.” Because of her broken wrist, Mrs. Skutka was unable to perform this task, and she contacted DFACS seeking “respite care until such time as [her] wrist and arm would be healed up [sic] enough for me to resume taking care of” C. C. The Skutkas then turned the child over to DFACS.

On November 5,1999, DFACS filed a deprivation petition. When the mother learned of the deprivation proceedings, she left an assisted living facility in Florida and returned to Georgia. The mother had two visits with C. C. that were supervised by Turber. Turber testified that the visits went “very well,” and she recommended that the mother continue visiting C. C.

At the hearing, the mother admitted that she was unable to provide for C. C. on her own, but she asserted that, with the Skutkas’ help, she would be able to care for her daughter. According to the mother, her mental health is no longer a stumbling block. Upon returning to Georgia, the mother obtained a job, which she had held for six weeks prior to the hearing. She takes Paxil and Depakote for her mental health problems, and she has continued to see a therapist. Mrs. Skutka testified that she has seen definite improvement in the mother since her return from Florida in that the mother no longer becomes weepy or loses her temper.

Mrs. Skutka indicated that, at the time of the hearing, she was both willing and able to care for C. C. However, she acknowledged that she had been disabled from work since 1989 as a result of fibromyalgia, asthma, chronic fatigue syndrome, and pernicious anemia. Because of her medical problems, Mrs. Skutka had been hospitalized for three days while C. C. was still in her care. During this time, friends had taken care of the child. According to Mrs. Skutka, with the exception of those three days, C. C. had not been separated from her. Mrs. Skutka testified that “[e]ven when we go on vacation, which we go visit my family, we take [C. C.] with us wherever we go. She is just like another grandchild. She’s real close to my grandkids, and she goes along wherever we go.” On February 25, 2000, the juvenile court issued its order finding that C. C. was deprived. With respect to the Skutkas, the court found that Mrs. Skutka “has numerous health problems which make it unrealistic for the child to be placed in the temporary custody of the Skutkas as requested by the mother.”

Pursuant to OCGA § 15-11-2 (8) (A), a deprived child is one who “[i]s without proper parental care or control, subsistence, education as required by law, or other care or control necessary for [her] physical, mental, or emotional health or morals.” This definition “focuses upon the needs of the child regardless of parental fault. The [deprivation] petition is brought on behalf of the child and it is the child’s welfare and not who is responsible for the conditions which amount to deprivation that is the issue.” Deprivation must be shown by clear and convincing evidence. That standard was not met here.

Although the mother has a lengthy history of mental health problems, she has sought treatment for her condition. Moreover, the mother, remarkably, ensured that her child received proper care while she obtained treatment. She did so by placing her child with the Skutkas, who clearly are caring, capable people. The only time the Skutkas were unable to care for C. C. was when Mrs. Skutka had a broken wrist. There simply is no support in the record for the trial court’s conclusion that Mrs. Skutka’s additional medical ailments are an impediment to her caring for the child.

Decided April 11, 2001.

Elena M. Mushkin, Eric G. Kocher, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Assistant Attorney General, Edwards, Friedewald & Grayson, Robert J. Grayson, Sanders B. Deen, for appellee.

In its brief, DFACS asserts that the Skutkas’ ability to care for the child is immaterial because a “finding of deprivation is based on an absence of proper parental care or control.” In this case, however, the mother exercised her parental control by placing her child with competent caregivers while she received mental health treatment. While it is true that the fact “[t]hat someone else is providing good care in the absence of the parent in question does not preclude a finding of deprivation,” it is equally true that the mere fact that a child is being cared for by someone other than a parent does not prove a lack of parental fitness. Here, the mother exercised good parental judgment in temporarily placing her child with the Skutkas. And, while in the Skutkas’ care, all of C. C.’s physical, mental, and emotional needs were met. Accordingly, in view of Mrs. Skutka’s testimony that she was willing and able to continue caring for C. C., the trial court erred in concluding that C. C. was deprived.

Judgment reversed.

Johnson, P. J, and Ellington, J., concur.

       (Punctuation omitted.) In the Interest of B. M. B., 241 Ga. App. 609 (527 SE2d 250) (1999).

       Under OCGA § 15-11-2 (8), deprivation may also be shown by establishing that a child has been illegally placed for care or adoption; has been abandoned; or is without a parent, guardian or custodian. These bases are not at issue, and we do not address them.

       (Punctuation omitted.) In the Interest of D. E. K., 236 Ga. App. 574, 577 (512 SE2d 690) (1999).

       Id.

        In the Interest of M. C. J., 242 Ga. App. 852, 855 (1) (531 SE2d 404) (2000).

        In the Interest of A. G. I., 246 Ga. App. 85, 88 (2) (c) (539 SE2d 584) (2000).

       See In the Interest of D. E. K, supra.


author: Ellington, Judge.

text:
    A01A0401.
    LOCKLEAR et al. v. THE STATE.
    (547 SE2d 764)
   Ellington, Judge.

A Floyd County jury convicted Timothy Locklear and his wife, Kelli, of felony theft by taking, OCGA § 16:8-2, after finding that the Locklears took a bank deposit bag containing approximately $10,000 in cash and checks from an automobile repair shop in June 1998. The jury also convicted Mr. Locklear of misdemeanor theft by taking, a charge which arose from the disappearance of a wallet from a retail store during July 1998. The jury acquitted Mrs. Locklear of the misdemeanor count. The Locklears jointly appeal from the trial court’s denial of their motion for a new trial, asserting that the evidence was insufficient to support their convictions.

Specifically, the Locklears contend the State presented a case based entirely on circumstantial evidence, which showed only that they were present at the scene of the alleged thefts. The Locklears argue that there was no evidence showing they ever had possession of the missing property and that employees and customers had access to the property at the time of the alleged theft. Therefore, the Locklears claim the evidence failed to exclude every reasonable explanation for the missing property except for their guilt. See Francis v. State, 231 Ga. App. 112, 113 (1) (497 SE2d 827) (1998). We agree and reverse their convictions.

“On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.” (Citations omitted.) Thomas v. State, 218 Ga. App. 371, 373 (1) (461 SE2d 305) (1995). In a case entirely dependent on circumstantial evidence, however, the State’s evidence “must both be consistent with the hypothesis of guilt and must exclude every other reasonable hypothesis.” (Citation and punctuation omitted.) Francis v. State, 231 Ga. App. at 113 (1). Even when the circumstantial evidence creates a strong suspicion of guilt, “mere suspicion is insufficient to support a conviction.” Willis v. State, 214 Ga. App. 659, 660 (1) (448 SE2d 755) (1994).

Further, “[e]vidence of mere presence at the scene of the crime, and nothing more to show participation of a defendant in an illegal act, is insufficient to support a conviction.” (Citation and punctuation omitted.) Francis v. State, 231 Ga. App. at 112-113 (1). See also Willis v. State, 214 Ga. App. at 660 (1); Caldwell v. State, 183 Ga. App. 110, 111 (1) (357 SE2d 845) (1987). In this case, the State failed to exclude other explanations for the disappearance of the money and showed nothing more than the Locklears’ presence in the wrong place at the wrong time.

1. The felony theft charge arose from the disappearance of a bank deposit bag from Goss Body Shop in Shannon. Nancy Goss, who owns the shop with her husband, placed the deposit bag on a file cabinet near her computer around 3:00 p.m. on June 2, 1998. The bag contained approximately $2,000 in cash and $8,000 in checks. At approximately 3:45 p.m., the Locklears went to the shop to get a repair estimate on their car. While Mrs. Goss and the defendants went outside to look at the car, Mrs. Goss asked her teenage niece to watch the office. Mrs. Goss then attempted to compute the defendants’ repair estimate. She left the office again to ask her husband a question about the estimate and again asked her niece to watch the office. Mrs. Goss testified that, while she worked on the computer, Mrs. Locklear asked her several questions about the proposed estimate. At one point, Mr. and Mrs. Locklear stepped behind the office counter and stood behind Mrs. Goss, near the deposit bag. The Locklears both testified that they went behind the counter and stood behind Mrs. Goss only after she offered to show them some information on the computer screen. The Locklears left the shop at approximately 4:10 p.m., and Mrs. Goss discovered that the deposit bag was missing about 20 minutes later.

Mrs. Goss testified that the last time she remembered seeing the bag was approximately 3:00 p.m. and that she did not know if the bag was still on the cabinet when the Locklears stepped behind the counter. Between 3:00 and 4:30 p.m., other individuals were in the vicinity of the bag, including another customer, a shop employee, and Mrs. Goss’ niece. Mrs. Goss testified that she was busy with another customer and a phone call when she put the bag on the cabinet. She did not see the Locklears touch the bag or leave with it. The money was never found. There was no evidence that the Locklears attempted to cash the checks or that they ever possessed the cash. See Caldwell v. State, 183 Ga. App. at 111 (1); cf. Thomas v. State, 218 Ga. App. at 373 (1) (recent unexplained possession of stolen goods plus other circumstantial evidence of theft may support a theft conviction); Willis v. State, 214 Ga. App. at 659 (1).

Further, the Locklears both testified at trial and explained why they went to the body shop and what transpired during their visit there. There was nothing per se unreasonable or implausible about their version of events, which was consistent with Mrs. Goss’ testimony.

In making a determination of whether any other reasonable hypothesis exists, the defendant’s explanation must be taken into consideration insofar as it is consistent with the circumstantial evidence properly admitted. Whether or not in a given case circumstances are sufficient to exclude every reasonable hypothesis save the guilt of the accusedt ] is primarily a question for determination by the jury. . . . [However, where] there appears a hypothesis from the evidence, or from the lack of evidence and the defendant’s statement, pointing to the innocence of the accused, and which tested by all human experience is a reasonable one, [this Court] may declare it so as a matter of law.

(Citations and punctuation omitted.) Bogan v. State, 158 Ga. App. 1, 3 (279 SE2d 229) (1981). Cf. Chung v. State, 240 Ga. App. 394, 396 (2) (523 SE2d 615) (1999) (defendant and victim were the only people present when crime was committed).

In this case, the undisputed evidence showed that other people had access to the money at the time it disappeared and there was no evidence of the Locklears’ possession of the money. In order to convict the Locklears of theft, the State had to present more than the “coincidence” of two thefts occurring around the time the Locklears visited two different establishments. We find that the State failed to demonstrate the Locklears’ participation in the thefts and to exclude other reasonable hypotheses for the disappearance of the money. The circumstantial evidence presented was insufficient as a matter of law to support the Locklears’ convictions for felony theft by taking. See Francis v. State, 231 Ga. App. at 112-113 (1); Caldwell v. State, 183 Ga. App. at 111-112 (1).

2. For the same reasons, Mr. Locklear’s misdemeanor theft conviction cannot stand. The charge arose from the disappearance of a wallet from a Family Dollar Store in July 1998. Karen Bennett, the acting store manager, testified that she had left her purse in the store office, underneath a bank deposit bag containing $3,000 to $4,000. Bennett and a cashier were the only employees in the store. The Locklears came in the store a few minutes before its 5:00 p.m. closing time. According to Bennett, Mrs. Locklear approached her in the back of the store and asked about the former manager, Mr. Locklear’s sister-in-law. According to Bennett, this “distracted” her for three or four minutes. The cashier was busy with other customers at the register. When the cashier finished checking them out, she looked up and saw Mr. Locklear coming down the stairs near the office. No one saw whether he actually went inside the office. At trial, Mr. Locklear explained that he had visited with his sister-in-law in the office during previous visits to the store and merely looked in the office to see if she was working that day. After he came down the stairs and found out that his sister-in-law was no longer working at the store, he and his wife purchased several bags of items and left the store without incident. After the cashier mentioned that Mr. Locklear had been near the office, Bennett checked her purse and discovered that her purse had been unzipped and her wallet was missing. The wallet contained $92 and a pair of gold earrings. The bank deposit was still in the office, however.

Decided April 11, 2001.

Teddy L. Henley, for appellants.

Tambra P. Colston, District Attorney, C. Stephen Cox, Assistant District Attorney, for appellee.

As in the body shop case, other customers and the cashier were in the store at the time of the theft. No one saw Mr. Locklear in possession of the wallet.

Therefore, using the same analysis as in Division 1, supra, we find that the State failed to prove Mr. Locklear’s guilt beyond a reasonable doubt. We reverse his misdemeanor conviction for theft by taking.

Judgment reversed.

Johnson, P. J, and Ruffin, J., concur.

       On cross-examination, the State repeatedly called upon the Locklears to explain the “coincidence” of the two thefts. Under the circumstances of this case, this line of questioning effectively shifted the burden to the defendants to prove their innocence. As noted above, it is the burden of the State, not the defendants, to exclude all other reasonable hypotheses and show that these thefts were more than a mere “coincidence.” See Francis v. State, 231 Ga. App. at 113 (1).


text:
    A01A0424.
    CALLAHAN v. THE STATE.
    (547 SE2d 741)
   Miller, Judge.

Convicted of five counts of public indecency, Victor Callahan appeals on three grounds: (1) the evidence was insufficient, (2) the court did not instruct the jury properly on the separateness of the counts, and (3) trial counsel provided ineffective assistance. We hold that the circumstantial evidence excluded reasonable hypotheses of innocence, that the jury charge as a whole adequately focused on the distinct nature of each count, and that evidence supported the court’s finding that trial counsel pursued a reasonable trial strategy. Thus, we affirm.

Construed in favor of the verdicts, the evidence showed that over a period of nine days in July 1997, five different women in five different locations witnessed in plain view a male of defendant’s race exhibit his genitalia and masturbate in a small white car belonging to Callahan, after getting each woman’s attention. Two instances took place on July 9 at about 9:00 a.m. (Count 2) and 5:20 p.m. (Count 3), two on July 12 at about 8:00 a.m. (Count 4) and 8:45 a.m. (Count 1), and one on July 17 (Count 5). The witnesses in Counts 1, 2, and 4 recorded Callahan’s car tag number and positively identified him in court or in a pre-trial pictorial lineup as the perpetrator. The witness in Count 5 also recorded the tag number. Callahan denied participating in the crimes, claiming that an acquaintance had taken his car from July 7 until 2:45 p.m. on July 12.

1. Regarding sufficiency of the evidence, the question on appeal is whether the evidence, as construed in favor of the verdicts, would allow a rational trier of fact to find beyond a reasonable doubt the elements of each of the charged crimes. Where a conviction is based on circumstantial evidence alone, that evidence must exclude all reasonable hypotheses save the guilt of the accused. The jury generally determines the reasonableness of hypotheses and the credibility of the evidence.

Callahan argues that since the witnesses in Counts 3, 4, and 5 never identified him in court, his convictions on these counts were based on circumstantial evidence alone, which does not exclude the reasonable hypothesis that his acquaintance was driving the car and committed these crimes. This argument fails for five reasons. First, the witnesses in Counts 1 and 2 did identify Callahan in court as driving his car and committing public indecency in front of them on July 9 and early on July 12, thus refuting the hypothesis and his testimony that his acquaintance had the car on these days. This circumstance also allowed the jury to exclude the hypothesis that the acquaintance had the car at other times on these same days when the witnesses in Counts 3 and 4 were confronted.

Second, the witness in Count 5 was confronted on July 17, a day on which Callahan admittedly had the car. Third, the witness in Count 4 testified that she identified Callahan out of a pictorial lineup as the person she was “99.9 percent sure” was the perpetrator. Fourth, evidence showed that the acquaintance, who was ten years younger than Callahan, looked much different from Callahan. Fifth, in a similar transaction committed a month after these crimes, a sixth witness positively identified Callahan as masturbating in the same car in front of her. The sum total of this evidence allowed a jury to exclude the hypothesis that someone other than Callahan was driving his car when the five acts of public indecency occurred.

2. Callahan contends the court erred in instructing the jury that it was for them to determine whether the evidence showed beyond a reasonable doubt that he was “the perpetrator of the alleged crimes.” The court in the same paragraph continued to use similar language. Callahan claims that this confused the jury by lumping all five counts together and further constituted an improper expression by the court of an opinion on the evidence that the same person committed all five crimes. We disagree.

We review the court’s jury charge as a whole to determine whether it failed to instruct the jury as to its duty to consider each count separately. Here the court reminded the jury, as it had instructed them at the beginning of trial, that Callahan was charged “with five separate and distinct violations of Georgia law and those counts have been set forth in the accusation” sent out with them to the jury room. The court further instructed the jury that in the event they did “not believe the evidence sufficient to convict the Defendant on any specific count of the accusation . . . or if [they had] a reasonable doubt in [their] minds as to his guilt on any specific count,” then it was their duty to acquit Callahan “on any such count.” We hold that when read as a whole, the jury charge adequately instructed the jury on their duty to consider each count separately. Also, we do not read the language of the charge as an expression of an opinion that the same person committed all five crimes, particularly since the court emphasized that it did not intimate or express any opinion as to the facts and inferences of the case.

3. Callahan points to three actions of his trial counsel as evidence of ineffective assistance. The court held an evidentiary hearing on the allegations and found that Callahan had not made the required showings that his attorney’s performance was deficient and that the deficiency prejudiced him. We must affirm this ruling unless it is clearly erroneous.

Callahan first claims that his trial counsel erred in failing to move for a directed verdict on Counts 3, 4, and 5. As set forth in Division 1 above, the evidence was sufficient to sustain the jury’s verdict on these counts. Thus, such a motion would have been futile and cannot serve as a basis for finding ineffective assistance.

Callahan then contends that his counsel performed deficiently in her decision to have him display his genitalia to the jury so as to show a birthmark thereon not referenced by any of the witnesses. Since Callahan failed to inform his counsel of this birthmark until the last day of the defense’s case, counsel had no adequate opportunity to obtain photographic evidence instead. Under these circumstances, it was a reasonable trial strategy, although distasteful, to have the jury view the evidence firsthand.

Third, Callahan argues that trial counsel erred in failing to move for a mistrial when the court granted counsel’s motion in limine to prevent the witness in Count 4 from testifying to some later tainted pre-trial identification of Callahan and from identifying him in court. He contends that since the State in its opening statement had asserted that this witness “saw this man, Victor Callahan,” the exclusion of this witness’s identification testimony meant that the opening statement assertion could not be shown, leaving the jury unreasonably tainted. This argument, however, ignores the fact that the court did admit other evidence showing that this witness picked Callahan out of an earlier pictorial lineup as the man she was “99.9 percent sure” was the perpetrator of the public indecency. Thus, admissible evidence supported the prosecution’s remark in the opening statement.

Decided April 11, 2001.

Garcia & Powell, Morris H. Wiltshire, Jr., Vicki E. Carter, for appellant.

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

As there is evidence to support the trial court’s finding of effective assistance, it was not clearly erroneous. We affirm.

Judgment affirmed.

Andrews, P. J., and Eldridge, J, concur.

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       OCGA § 24-4-6; Robbins v. State, 269 Ga. 500, 501 (1) (499 SE2d 323) (1998).

        Robbins, supra, 269 Ga. at 501 (1).

       See Moore v. State, 242 Ga. App. 208, 210-211 (1) (529 SE2d 210) (2000).

       See OCGA § 17-8-57.

        Heard v. State, 177 Ga. App. 802, 804 (4) (341 SE2d 459) (1986).

       Id.; see Tiller v. State, 218 Ga. App. 418, 419 (2) (461 SE2d 572) (1995).

       See Gutierrez v. State, 235 Ga. App. 878, 880 (1) (510 SE2d 570) (1999).

       Cf. Moody v. State, 273 Ga. 24, 27 (5) (537 SE2d 666) (2000) (these two showings must be made to show ineffective assistance of counsel).

        Jones v. State, 246 Ga. App. 494, 496 (2) (540 SE2d 693) (2000).

        Banks v. State, 244 Ga-App. 191, 192 (1) (c) (535 SE2d 22) (2000).

       Cf. Head v. Taylor, 273 Ga. 69, 79 (3) (538 SE2d 416) (2000) (courts should be highly deferential to trial counsel decisions arguably dictated by a reasonable trial strategy).

       Cf. Green v. State, 172 Ga. 635 (3) (158 SE 285) (1931) (“The opening statement of counsel in outlining his side of the case to the jury should be confined to a summary or recital of such matters of proof only as are admissible under the rules of evidence.”).

       See Mann v. State, 240 Ga. App. 809, 811 (3) (524 SE2d 763) (1999), aff’d, 273 Ga. 366 (541 SE2d 645) (2001).


text:
    A01A0484.
    ETHERIDGE v. THE STATE.
    (547 SE2d 744)
   Miller, Judge.

Gerald Etheridge was tried before a jury and found guilty of aggravated assault and battery. On appeal he challenges the sufficiency of the evidence and enumerates the trial court’s refusal to give his written request to charge on justification. We affirm.

1. On appeal from a criminal conviction,

the evidence must be construed in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. An appellate court does not weigh the evidence or judge the credibility of the witnesses but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia. Conflicts in the testimony of the witnesses, including the State’s witnesses, are a matter of credibility for the jury to resolve. So long as there is some competent evidence, even though contradicted, to support each element of the State’s case, the jury’s verdict will be upheld.

Viewed to uphold the verdict, the evidence showed that on December 26, 1995, Etheridge and two companions drove to the home of Eddie Reed, where Terry Lowrance was staying and where 17-year-old Shane Dagnan was asleep on a couch. Etheridge asked Reed where Dagnan was, and Reed indicated the couch. Without provocation, the two men who accompanied Etheridge grabbed Dagnan, threw him to the floor and started kicking and beating on him. Etheridge then went in and “started helping with” the beating. Dagnan pleaded for the men to stop.

Dee Anna Brooks woke up her boyfriend Lowrance, who tried to pull the men off Dagnan. When one of the men started hitting Lowrance, he defended himself. Brooks saw the flash of a knife and cried out, but Etheridge had already stabbed Lowrance. Brooks saw Etheridge intentionally stick Lowrance and “just rip,” producing a wide, gaping wound “approximately eight inches across.” When Lowrance turned to get away, Etheridge cut him again, across the rib cage and back. Lowrance confirmed the blade Etheridge used was about three or four inches long. The two victims and Brooks each picked Etheridge out of a photographic lineup, indicating he was the one who cut Lowrance during the fight at Reed’s house. Dagnan’s face was badly bruised and his right eye swollen shut.

Etheridge admitted that he and Dagnan argued and that he hit the boy in the face with his fist three or four times, but blamed the knifing of Lowrance on the third companion, known only as Smiley.

(a) Etheridge’s admission that, during an argument, he hit Dagnan in the face with his fist, coupled with proof that the boy’s face and eye were swollen and bruised, is sufficient under the standard of Jackson v. Virginia to authorize'the jury’s verdict that he is guilty, beyond a reasonable doubt, of battery by intentionally causing visible bodily harm as alleged in the indictment.

(b) “The testimony of a single witness is generally sufficient to establish a fact.” Notwithstanding any claim of self-defense, the testimony of Lowrance, corroborated by Brooks, that Etheridge stabbed Lowrance with a knife blade exceeding three inches is sufficient to authorize the jury’s verdict that Etheridge is guilty, beyond a reasonable doubt, of the aggravated assault alleged in Count 1 of the indictment.

Decided April 11, 2001.

2. The refusal to give written requests to charge on justification under OCGA § 16-3-20 and self-defense under OCGA § 16-3-21 is enumerated as error.

Aggravated Assault on Lowrance. An affirmative defense is one that admits the doing of the act charged but seeks to justify, excuse, or mitigate it. Since Etheridge denied stabbing the victim, expressly blaming his companion Smiley, the charges were not authorized by the evidence, and so the trial court did not err in refusing to give these inapplicable requests.

Battery against Dagnan. To be entitled to a charge on defense of self or others under OCGA § 16-3-21 (a), the accused must show he reasonably believed that the imminent use of unlawful force was about to be perpetrated against him or others. Etheridge argues the charges were nevertheless authorized respecting the battery charge because there is evidence that he was not the aggressor “but was drawn into the brawl after it had begun.” The sole record citation offered in support of this contention is to the testimony of Brooks who said Etheridge joined in the unprovoked beating of the sleeping Dagnan, who begged the men to stop. In our view, this evidence makes Etheridge an aggressor against Dagnan, even though he was not the first assailant, and so ineligible to claim self-defense. This certainly is not evidence that Etheridge reasonably believed that force was necessary to defend himself or his companions from Dagnan’s imminent use of unlawful force. The trial court did not err in refusing the requested instructions on self-defense.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

Bennett & Hamilton, Lindsay H. Bennett III, for appellant. Herbert E. Franklin, Jr., District Attorney, for appellee.

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       (Footnote omitted.) Bartlett v. State, 244 Ga. App. 49-50 (537 SE2d 362) (2000).

       Supra.

       OCGA § 16-5-23.1 (a); Seritt v. State, 237 Ga. App. 665, 668 (3) (b) (516 SE2d 366) (1999).

       OCGA § 24-4-8.

       OCGA § 16-5-21 (a) (2); Roberts v. State, 180 Ga. App. 646 (350 SE2d 39) (1986).

        Hanifa v. State, 269 Ga. 797, 806 (5) (505 SE2d 731) (1998).

        MeCranie v. State, 172 Ga. App. 188, 189 (2) (322 SE2d 360) (1984). Accord Heaton v. State, 214 Ga. App. 460, 461 (5) (448 SE2d 49) (1994).

        Alexis v. State, 273 Ga. 423, 426 (4) (541 SE2d 636) (2001).

       OCGA § 16-3-21 (b) (3).

       See Columbus v. State, 270 Ga. 658, 662 (2) (d) (513 SE2d 498) (1999).


text:
    A01A0516.
    EMERY v. THE STATE.
    (548 SE2d 23)
   Ellington, Judge.

Carl Emery appeals his conviction for possession of cocaine with intent to distribute, OCGA § 16-13-30, and possession of marijuana, OCGA § 16-13-30. He challenges the trial court’s order denying his motion to suppress evidence illegally seized. Because the contraband introduced against Emery was the product of an illegal stop and subsequent search, we must reverse the trial court’s judgment.

In reviewing a motion to suppress, the evidence is construed most favorably to uphold the trial court’s findings and judgment, and the court’s findings on disputed facts and credibility will be adopted unless they are clearly erroneous. Redd v. State, 229 Ga. App. 364, 365 (494 SE2d 31) (1997). Where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to the undisputed facts is subject to de novo review. State v. Becker, 240 Ga. App. 267-268 (523 SE2d 98) (1999). Viewed in this light, the record reveals that on May 1, 1998, investigators with the Richmond County Sheriff’s Department executed a search warrant at 1918 Boykin Place. Only Carl Emery’s brother, Robert, was named in the warrant. An investigator, through a confidential informant, previously made a controlled buy of cocaine at that address from Robert. The State adduced no evidence which suggested Carl had been involved in the prior sale, was present on the premises during any illegal activity, or was a target of the investigation.

Prior to executing the warrant, the investigators watched Robert Emery’s house. Because the house was fortified with burglar bars, the investigators decided to wait until Robert left, stop him, and then use his keys to get in. They saw Carl and Robert emerge from the house and go their separate ways. When Carl was about a mile away from the house, one of the investigators stopped him and took him back to the house. The investigators could distinguish Carl from Robert, they did not stop Carl to determine whether he was Robert, nor were they under the mistaken belief that Carl was Robert. An investigator took Carl’s keys from his pocket and used them to enter the house. When both Carl and Robert had been returned to the house, the investigators executed the warrant.

A search of the home revealed $4,213 in cash, a set of digital scales, and two hand-held scales. The investigators also searched Robert and Carl. A search of Carl’s person revealed a small amount of marijuana and cocaine concealed in the foot of his right sock. The investigator conducting the search of Carl’s person did not feel the contraband during a pat-down for weapons. Rather, he discovered it only upon asking Carl to remove his shoes and socks. After Carl was arrested, the investigators learned there was an outstanding bench warrant for Carl’s arrest and that Carl also resided at 1918 Boykin Place.

The admissibility of the cocaine and marijuana evidence begins with an analysis of the legality of Carl’s initial stop and detention. Under the circumstances of this case, the admissibility of that evidence does not turn “upon the restricted power of police to detain the occupants of a premises while a warranted search is conducted.” Garmon v. State, 271 Ga. 673, 676 (1) (524 SE2d 211) (1999). Although a search warrant “ ‘implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted,’ ” id., citing Michigan v. Summers, 452 U. S. 692 (101 SC 2587, 69 LE2d 340) (1981), that analysis does not extend to a person whose status with respect to the premises is unknown, who has already left the premises, and who the police know is not named in the warrant. See State v. Mallard, 246 Ga. App. 357 (541 SE2d 46) (2000); Fritzius v. State, 225 Ga. App. 642, 645-646 (484 SE2d 743) (1997). Instead, a law enforcement officer may make an investigatory stop of such a person when, under the totality of the circumstances, the stop can be justified “by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.” Garmon v. State, 271 Ga. at 676 (2); State v. Mallard, 246 Ga. App. at 361; see Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).

In this case, Carl was stopped when he was over a mile away from the premises. The State adduced no evidence which would support a founded suspicion that Carl was then engaged in or about to be engaged in any illegal activity. Although the arresting investigator later learned that Carl was a resident of the house to be searched and that there was a bench warrant outstanding for his arrest, those facts were not within the investigator’s knowledge at the time of arrest. Therefore, those facts may not be used in support of a finding of reasonable articulable suspicion. Cf. Harvey v. State, 266 Ga. 671, 673 (469 SE2d 176) (1996). Under the totality of the circumstances, the stop was unlawful, and the evidence seized as a result of the subsequent search of Carl’s person must be suppressed. State v. Mallard, 246 Ga. App. 357.

Judgment reversed.

Johnson, P. J., and Ruffin, J., concur.

Decided April 11, 2001.

Peter D. Johnson, for appellant.

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


text:
    A01A0534.
    WHEELER v. THE STATE.
    (547 SE2d 746)
   Miller, Judge.

Within 30 days of being released from jail where he had served a sentence for possession of cocaine, Angelo Lopez Wheeler sold cocaine to an undercover officer. Based on the officer’s testimony and on an audiotape recording of the transaction, a jury found Wheeler guilty of selling cocaine in violation of OCGA § 16-13-30 (b). Since Wheeler had two prior felony convictions for possessing cocaine and for possessing cocaine with intent to distribute, the court sentenced him to life in prison.

Wheeler raises two issues on appeal. He claims first that the court erred in denying his motion for mistrial which he made when the prosecutor failed to give adequate race-neutral grounds for striking the only African-American on the jury panel. The record reflects that adequate race-neutral grounds were given. Second, he argues that the court erred in considering his two prior drug convictions because they were based on guilty pleas which the State failed to show were made voluntarily. Since Wheeler failed to object to the introduction of his prior convictions, he waived this issue. Accordingly, we affirm.

1. Wheeler, who is African-American, objected when the State used one of its six peremptory strikes to exclude the only African-American on the jury panel. He asked that the juror be placed on the jury. In response, the State gave two reasons for the strike. First, the juror stated he did not want to serve on the jury because it would cause him problems at work. Second, the juror testified that his religious convictions would make it difficult for him to sit in judgment of another. The State explained that it believed these issues would distract the juror from fulfilling his duty. Without inviting further reply by Wheeler, the court denied the motion to place the juror on the jury. Wheeler then moved for a mistrial on his stated ground, which the court denied.

On appeal, Wheeler complains that the reasons given by the State were not race-neutral. An explanation based on something other than the race of the juror is race-neutral unless a discriminatory intent is inherent in the explanation. Such explanation is not race-neutral if it is based on a characteristic peculiar to any race or on a stereotypical belief. Here the juror’s potential problems at work and his religious convictions regarding judging others were plainly race-neutral.

Once these race-neutral explanations were given, Wheeler continued to bear the burden of persuading the court that the strike was motivated by racially discriminatory intent. Here Wheeler advanced no further argument or evidence. The court found that Wheeler had not carried his burden, which finding is entitled to great deference and will be affirmed unless clearly erroneous. As there was evidence to support the court’s ruling, we affirm.

2. Wheeler contends the court erred in sentencing him as a recidivist, arguing the court should not have considered the two prior guilty pleas without first requiring the State to prove that the pleas were given knowingly and voluntarily. Here the State submitted certified convictions of the two prior felony drug offenses, which showed that Wheeler was represented by counsel at both proceedings. Wheeler announced he had no objection to the admission of the certified convictions, which were then admitted. Following argument from counsel, the court sentenced Wheeler to life in prison. Not until his post-judgment motion for new trial did Wheeler for the first time raise any concern about the State showing that the prior guilty pleas were knowing and voluntary.

In noncapital cases, the burden is on the recidivist defendant rather than the State to prove by a preponderance of the evidence that a previous guilty plea was not. knowingly and voluntarily entered. The State must initially prove only the existence of the prior guilty plea and that defendant was represented by counsel in all felony cases, and in all misdemeanor cases resulting in imprisonment.

Decided April 11, 2001.

Don W. Thompson, for appellant.

Herbert E. Franklin, Jr., District Attorney, Jennifer E. Hildebrand, Assistant District Attorney, for appellee.

Here, Wheeler’s prior convictions were admitted without objection or motion to exclude, so the issue whether his guilty pleas underlying the convictions were valid was never raised. In this noncapital case, the State was not required to initiate the inquiry into whether the pleas were in fact entered intelligently, knowingly, and voluntarily. The defendant must raise the issue at or prior to trial or sentencing; a motion for new trial is too late to raise it for the first time. Having waived the matter below, Wheeler is precluded from pursuing it on appeal.

Judgment affirmed.

Andrews, P. J, and Eldridge, J., concur.

       The jury also found Wheeler guilty of possessing cocaine with the intent to distribute and guilty of possession of cocaine, which counts merged into the sale of cocaine count at sentencing.

       See OCGA § 16-13-30 (d).

        Jackson v. State, 265 Ga. 897, 898 (2) (463 SE2d 699) (1995), citing Hernandez v. New York, 500 U. S. 352, 360 (111 SC 1859, 114 LE2d 395) (1991).

        Turner v. State, 267 Ga. 149, 151 (2) (476 SE2d 252) (1996).

        Jackson, supra, 265 Ga. at 899 (2).

        Turner, supra, 267 Ga. at 151 (2).

        Nash v. State, 271 Ga. 281, 284-285 (519 SE2d 893) (1999), applying Parke v. Raley, 506 U. S. 20 (113 SC 517, 121 LE2d 391) (1992).

        Nash, supra, 271 Ga. at 285; accord White v. State, 245 Ga. App. 725, 727 (4) (538 SE2d 797) (2000).

        Nash, supra, 271 Ga. at 285.

        Jackson v. State, 238 Ga. App. 559, 560 (1) (b) (520 SE2d 11) (1999), citing Fulton v. State, 232 Ga. App. 898, 901-902 (6) (503 SE2d 54) (1998); accord Bright v. State, 265 Ga. 265, 286 (20) (455 SE2d 37) (1995).


text:
    A01A0681.
    BANKSTON v. THE STATE.
    (548 SE2d 25)
   Miller, Judge.

Convicted of statutory rape, Marvin James Bankston appeals on two grounds: the trial court erred in admitting his confession to having sexual intercourse with his 14-year-old daughter, and the evidence was therefore insufficient to sustain the conviction. The arresting officer testified that he gave Bankston Miranda warnings before the interrogation that led to the confession, that Bankston signed a waiver form acknowledging such, and that the officer made no promises or threats. Despite Bankston’s testimony to the contrary, the court was authorized to believe the officer that the proper warnings were given before the interrogation. Thus, the trial court did not clearly err in finding the confession was voluntarily given after a knowing and intelligent waiver of his rights. Corroborated by the confession, the victim’s testimony that Bankston had sexual intercourse with her when she was 14 sufficed to sustain the conviction. We affirm.

Decided April 11, 2001.

Sullivan & Sturdivant, Harold A. Sturdivant, for appellant.

William T. McBroom III, District Attorney, Daniel A. Hiatt, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

       Bankston was also found guilty of child molestation and incest, which counts the court merged into the statutory rape count at sentencing.

        Wilson v. State, 211 Ga. App. 457, 458 (1) (439 SE2d 685) (1993).

       See Wiley v. State, 245 Ga. App. 580, 581-582 (2) (538 SE2d 483) (2000) (court may find that state met its burden of showing voluntariness of confession where officer testifies Miranda rights were given and no coercion or threats made); Trejo v. State, 245 Ga. App. 316, 317 (1) (537 SE2d 755) (2000) (burden is preponderance of the evidence).

        Trejo, supra, 245 Ga. App. at 318 (2); accord Reece v. State, 241 Ga. App. 809, 810 (527 SE2d 642) (2000); cf. OCGA §§ 16-6-3 (a) (“no conviction shall be had for this offense on the unsupported testimony of the victim”); 24-3-53 (confession must be corroborated to justify a conviction).