text:
    A99A1055.
    ABNEY v. THE STATE.
    (523 SE2d 362)
   Ruffin, Judge.

A Richmond County jury found Anthony Abney guilty of burglary. Abney appeals, asserting numerous errors, and we affirm.

1. In two enumerations of error, Abney argues that the evidence was insufficient to support his conviction. On appeal from a criminal conviction,

the evidence must be construed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

(Punctuation omitted.) Taylor v. State, 235 Ga. App. 323, 324 (1) (509 SE2d 388) (1998).

Viewed in a light most favorable to the verdict, the evidence at trial showed as follows. On June 12, 1996, Glover Rushton Bailey III saw a man approach a house that Bailey knew to be vacant, remove a screen from a back window, and climb into the house. Bailey ran to a nearby business and dialed 911 to report a burglary in progress. While he was on the telephone, Bailey saw the man toss four chairs out of the window of the house and then climb back out. The man then carried the chairs around to the front of the house and placed them along the fence.

Deputy Gary McCord responded first to Bailey’s 911 call: As he approached the house, McCord saw a man who matched the description of the burglar standing on the sidewalk near a stack of chairs. The man told McCord that he got the chairs from an abandoned cottage behind the house, and he gave his name as David Thomas. Bailey, who had remained in the area, then identified the man as the person he saw entering the house. McCord arrested the man, and the man gave a written statement identifying himself as Anthony Abney, denying that he entered the house, and claiming that he found the chairs in the yard of the house next door.

Later that day, McCord met Robert McGee at the house. McGee testified that he looks after the house for his mother, who owns it and who has Parkinson’s disease. McGee further explained that no one had lived in the house for two years, but the utilities had been maintained so that the property could be kept up. Upon inspecting the house, McGee and McCord noticed that the back window had been pried open, the curtain was pulled outside, and the window screen was leaning against the side of the house. McGee testified that Abney did not have permission to enter the residence or remove the chairs, which he identified as having come from the kitchen.

Burglary occurs when, “without authority and with the intent to commit a felony or theft therein, [a person] enters or remains within the dwelling house of another or any building . . . designed for use as the dwelling of another.” OCGA § 16-7-1 (a). “‘Without authority’. . . is defined as ‘without legal right or privilege or without permission of a person legally entitled to withhold the right.’ ” (Punctuation omitted.) Brown v. State, 143 Ga. App. 256, 257 (238 SE2d 258) (1977). Abney contends that the evidence was insufficient to establish that his entry into the residence was unauthorized because the only evidence as to whether he had authority was the testimony of McGee, who did not own the residence and did not live there. We reject this contention.

We have held that the testimony of an agent or caretaker of the property is sufficient to show that an entry was unauthorized. Glisson v. State, 165 Ga. App. 342-343 (3) (301 SE2d 62) (1983) (testimony of deacon of church who was responsible for maintenance and upkeep was sufficient to create jury question as to whether defendant’s entry was without authority). McGee testified that he oversees the property in question for his mother. In addition, there was testimony that the residence was for sale and that the realtor had been dealing with McGee. There was no evidence that Abney was a lawful occupant of the residence. Under these circumstances, the evidence was sufficient to permit the jury to conclude that McGee was a caretaker of the property with knowledge as to who was permitted to enter, and that Abney was not so permitted. See id.

2. Abney also contends that there was a fatal variance between the crime charged in the indictment and the proof offered at trial, in that the indictment charged him with entering the dwelling house of McGee, but the evidence at trial showed that McGee neither owned the house nor resided there. This contention is without merit.

We no longer adhere to

an overly technical application of the fatal variance rule, focusing instead on materiality. The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to affect the substantial rights of the accused. It is the underlying reasons for the rule which must be served: 1) the allegations must definitely inform the accused as to the charges against him as to enable him to present his defense and not to be taken by surprise, and 2) the allegations must be adequate to protect the accused against another prosecution for the same offense. (Cit.) Only if the allegations fail to meet these tests is the variance “fatal.”

(Punctuation and footnotes omitted.) Turner v. State, 231 Ga. App. 747- 748 (1) (500 SE2d 628) (1998). Here, the indictment definitely informed Abney of the charge against him and sufficiently identified the property in question. See Manemann v. State, 147 Ga. App. 747, 748- 749 (4) (250 SE2d 164) (1978) (no fatal variance where burglary indictment alleged that property was owned by person who turned out to be the janitor, not the owner). The indictment did not mislead Abney in such a manner that impeded his ability to present a defense or surprise him at trial, and Abney cannot be subjected to a subsequent prosecution for the burglary of the residence in question. See McCarty v. State, 157 Ga. App. 336 (1) (277 SE2d 259) (1981). Thus, there was no fatal variance.

3. Abney asserts that he received ineffective assistance of counsel at trial because his appointed attorney had a conflict of interest. Abney’s trial counsel is married to a lawyer in the district attorney’s office who prosecuted Abney in a previous, unrelated case. Abney raised no objection at trial concerning this alleged conflict of interest. During a hearing on his motion for new trial, Abney explained that a conflict existed because trial counsel “sleeps with [his wife], he don’t sleep with me.” When pressed to explain what trial counsel could have done differently, however, Abney failed to provide any specific examples and stated that he could not remember. Trial counsel testified that he did not discuss Abney’s case with his wife and that his wife was not involved in it. Thus we uphold the trial court’s finding that trial counsel was not ineffective.

In order to prevail on a claim of ineffective assistance of counsel, the defendant must show (1) that counsel’s performance was deficient and (2) that the defendant was prejudiced by the deficient performance — i.e., that there was a reasonable probability that the trial would have turned out differently but for counsel’s deficient performance. Leon v. State, 237 Ga. App. 99, 105 (4) (513 SE2d 227) (1999). A finding by the trial court that the defendant did not receive ineffective assistance of counsel “will be affirmed unless clearly erroneous.” (Punctuation omitted.) Id.

To prove ineffective assistance of counsel based on a conflict of interest on the part of trial counsel, “a defendant who raised no objection at trial . . . must prove that counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer’s performance.” (Punctuation omitted.) Fogarty v. State, 231 Ga. App. 57, 59 (3) (497 SE2d 628) (1998). With respect to attorneys whose spouses are affiliated with opposing counsel, the Supreme Court has held that

[a] per se rule of disqualification on the sole ground that an attorney’s spouse is a member of a firm representing an opposing party would be not only unfair to the lawyers so disqualified and to their clients but would also have a significant detrimental effect upon the legal profession. . . . While we cannot disagree with the proposition that the marital relationship may be the most intimate relationship of a person’s life, it does not follow that professional people allow this intimacy to interfere with professional obligations.

(Footnote omitted.) Blumenfeld v. Borenstein, 247 Ga. 406, 408-409 (276 SE2d 607) (1981). Accordingly, “absent a showing that special circumstances exist which prevent the adequate representation of the client, disqualification based solely on marital status is not justified.” (Punctuation omitted.) Jones v. Jones, 258 Ga. 353, 354 (369 SE2d 478) (1988).

Here, Abney showed no actual conflict of interest on the part of his trial counsel and no deficiencies in counsel’s performance. Abney argues that his attorney failed to locate a witness who could have provided favorable testimony for him. Abney admitted, however, that he knew only the witness’ first name and last known address and that she “was the type of person that kept moving.” Trial counsel testified that he spent a couple of hours looking for the witness but could not find her. This does not constitute ineffective assistance. See Harper v. State, 232 Ga. App. 224, 226-227 (2) (c) (501 SE2d 591) (1998). Abney also argues that counsel failed to ask the State’s eyewitness, Bailey, during cross-examination about an alleged dispute he had with Abney the week before the burglary. But counsel did question Abney about the dispute, and Abney fails to show any prejudice from the failure to cross-examine Bailey on the same point. Once again, we find no ineffective assistance. See Mitchell v. State, 220 Ga. App. 264, 266 (469 SE2d 707) (1996).

Decided October 6, 1999.

Harrison & Lamar, Kipler S. Lamar, for appellant.

4. Abney contends that the trial court erred in denying his motion for a jury view of the crime scene. According to Abney, a visit to the scene would have shown the jury that eyewitness Bailey could not, as he claimed, have seen Abney exit the window of the residence from the building where he called 911 to report the burglary. “The decision to allow the jury to view a scene is discretionary with the trial court, and will not be overturned unless there is a clear abuse of discretion.” (Punctuation omitted.) Wingate v. State, 188 Ga. App. 730, 731 (2) (374 SE2d 224) (1988). We find no abuse of discretion here. As Bailey testified that he saw Abney climb into the window before Bailey went to the nearby building to call 911, the jury could have concluded that Abney entered the building even if Bailey did not see him exit. Moreover, at the hearing on Abney’s motion for new trial, trial counsel testified that when he visited the crime scene, he found that the back yard of the residence was not visible from Bailey’s vantage point, but the window, which was “elevated somewhat,” was visible. Thus, it appears that the jury view would have bolstered Bailey’s testimony rather than undermined it.

5. Finally, Abney asserts that the trial court erred in denying his motion for mistrial when the State improperly placed his character in issue. Deputy McCord testified that Abney initially identified himself as David Thomas, but when he brought Abney to police headquarters, “about five or ten other deputies said, ‘Mr. Abney, what are you doing. . . .’” Abney’s attorney sought a mistrial, arguing that the officers’ recognition of Abney was prejudicial and brought his character into evidence. The trial court denied the motion on the ground that there was no evidence about how the officers knew Abney. We uphold the trial court’s ruling that McCord’s testimony that other officers were familiar with Abney did not necessarily suggest prior criminal conduct on the part of Abney and did not require a mistrial. See Barrs v. State, 202 Ga. App. 520 (1) (414 SE2d 733) (1992); Truitt v. State, 168 Ga. App. 616-617 (1) (309 SE2d 895) (1983).

Judgment affirmed.

McMurray, P. J., and Andrews, P. J., concur.

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

       Abney suggests that McGee was not competent to testify as to who had permission to enter the property because he himself did not occupy it. We have not required that a witness actually live on the property before he can testify as to who has authority to enter it. See, e.g., Glisson, supra.

       Abney asserts that had he known the true owner of the property, he could have obtained from her information concerning “the nature and location of personal property located in and around the building.” The evidence showed, however, that McGee maintained the residence and that his mother, who was ill, did not. Abney fails to show why he could not have obtained information about personal property in the house from McGee, who was more likely to know.


source: Caselaw Access Project

author: Phipps, Judge.

license: Public Domain

text:
    A99A1104.
    MURRAY et al. v. DEPARTMENT OF TRANSPORTATION.
    (523 SE2d 367)
   Phipps, Judge.

Willie and Helen Murray sued the Georgia Department of Transportation (“DOT”) for the wrongful death of their son, Willie Murray III, who died in an automobile collision on State Highway 216. The Murrays claimed that the DOT’s negligence in planning and designing Highway 216 was a proximate cause of their son’s death. The trial court, without elaboration, granted the DOT’s motion for summary judgment, although the Murrays filed an expert’s affidavit in support of their claim that the DOT negligently planned and designed the highway. The DOT claims that the Murrays’ expert, John Glennon, is not competent to testify about generally accepted engineering standards in effect on March 11, 1940, when Highway 216’s design was completed. Without Glennon’s testimony, the Murrays have presented no evidence that the DOT failed to conform to these generally accepted standards, and in such case, the DOT is immune from liability under the doctrine of sovereign immunity. If Glennon’s affidavit is competent testimony, however, summary judgment was improper.

If the pleadings, depositions, answers to interrogatories and admissions, together with affidavits, establish a genuine issue of material fact, then the DOT cannot prevail in its motion for summary judgment. OCGA § 9-11-56 (c). But if the DOT can show that there is no evidence sufficient to create a jury issue as to any essential element of a claim, then the DOT is entitled to summary judgment on that claim. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Sovereign immunity is a threshold issue. The Georgia Tort Claims Act provides that the State has no liability for the plan or design of a highway if the plan or design was “in substantial compliance with generally accepted engineering or design standards in effect at the time of preparation of the plan or design.” OCGA § 50-21-24 (10).

Road design requires professional engineering services. See Dept. of Transp. v. Gilmore, 209 Ga. App. 656, 657 (2) (434 SE2d 114) (1993). Unless the Murrays can produce an engineer’s competent testimony that the DOT’s design for Highway 216 was not in substantial compliance with the applicable engineering and design standards, their claim cannot withstand the DOT’s motion for summary judgment.

Glennon is competent to testify as an expert if he can show through education, training, or experience that he has special knowledge concerning the matters on which he is testifying. Gibbs v. Abiose, 235 Ga. App. 214, 217 (508 SE2d 690) (1998). Glennon testifies in his affidavit that he has personal knowledge of the generally accepted engineering and design standards in effect at the time Highway 216 was designed, and that the DOT did not design the highway in substantial conformity with those standards. The DOT’s position is that, because applicable nationally published standards (entitled “A Policy on Intersections at Grade”) were not approved until seven months after the design of the highway, Glennon has no basis for ascertaining the generally accepted engineering or design standards in effect at the time Highway 216 was designed and therefore is not competent to testify. We find this argument unpersuasive.

The DOT presented a similar argument involving the competence of expert testimony in Dept. of Transp. v. Brown, 267 Ga. 6, 7-8 (2) (471 SE2d 849) (1996). In Brown, the Supreme Court of Georgia considered the DOT’s argument that expert testimony was not admissible to prove design standards if no written standards addressed the design question in issue. Id. at 8. The court noted that ££[t]he design standard exception [of the Tort Claims Act] does not make reference to [the Manual on Uniform Traffic Control Devices]; it refers to ‘generally accepted engineering or design standards.’ ” Id. The court affirmed the admissibility of expert testimony to prove unpublished design standards. Here, the DOT cannot show that there were no generally accepted design or plan standards in effect at the time Highway 216 was designed, only that there were no existing nationally published standards.

Brown establishes that Glennon may testify about generally accepted engineering or design standards, even if unpublished, but the DOT may still show Glennon is not a competent expert by presenting undisputed evidence that Glennon has no personal knowledge, through his education, training or experience, of the applicable standards. This was the case in Daniels v. Dept. of Transp., 222 Ga. App. 237 (474 SE2d 26) (1996) (physical precedent only). Daniels arose out of the same collision that resulted in the death of the Murrays’ son. In Daniels, the plaintiff’s expert testified in a deposition that his “education, background, experience and opinion in this case concerning the specific standards applicable to the highway intersection were based on one document titled £A Policy on Intersections at Grade’. . . [which was] not approved until. . . after the design plans in this case were finalized.” (Emphasis in original.) Id. at 238.

In Daniels, undisputed evidence established that the expert’s testimony was not admissible to show “generally accepted engineering or design standards” in effect when the highway was designed. 222 Ga. App. at 238. See also Lynch v. Ga. Power Co., 185 Ga. App. 256, 258 (1) (363 SE2d 777) (1987) (expert opinion based solely on inadmissible private guidelines has no probative value).

There is, however, no evidence presented here that the expert relied solely on a document that postdated the highway design. The Murrays have submitted Glennon’s testimony by affidavit, and a statement in an affidavit that it is based on personal knowledge is generally sufficient. Wakefield v. A. R. Winter Co., 121 Ga. App. 259 (174 SE2d 178) (1970). Glennon’s affidavit states that he has personal knowledge of the generally accepted engineering and design standards in effect at the time design of Highway 216 was completed. His extensive professional credentials are attached to the affidavit. The affidavits submitted by the DOT establish only that there is conflicting expert testimony, which is not sufficient to show there is no triable issue of fact. Lennen v. Dept. of Transp., 239 Ga. App. 729 (521 SE2d 885) (1999).

Because we find Glennon’s affidavit is competent testimony, the Murrays have presented evidence sufficient to present a question of triable fact for a jury. The DOT is not entitled to summary judgment.

The Murrays have set forth enumerations of error regarding the trial court’s interpretation of OCGA §§ 32-1-3 (6) and 50-21-24 (8). The Murrays argue that the trial court erred by ruling that the term “construction” as contained in OCGA § 32-1-3 (6) does not require the DOT to adhere to generally accepted standards then in effect at the time of “striping” or “widening” the highway. The Murrays maintain that a plan or design for a moderate road improvement, such as striping, must take into account broader issues such as traffic control devices and signs to be afforded the protection of the Georgia Tort Claims Act. We find that plans or designs for striping or widening a road need only be in conformity with then existing standards for striping and widening and need not address design issues outside the scope of the moderate improvements.

The Murrays’ final enumeration of error, that the trial court misapplied OCGA § 50-21-24 (8), is misplaced. We do not find a claim of negligent inspection mentioned in the complaint or in the briefs submitted to the trial court. We find the question was not before the trial court and need not be decided on appeal.

Judgment reversed.

McMurray, P. J., and Ruffin, J., concur.

Decided October 6, 1999

Donaldson, Bell & Pickett, George P. Donaldson III, McCall & Finney, Earl McCall, for appellants.

Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, Senior Assistant Attorney General, Richard N Sheinis, Jennifer D. Roorbach, Assistant Attorneys General, for appellee.

       John Glennon, who is also the Murrays’ engineering expert.


text:
    A99A1191.
    JAMES v. STATE OF GEORGIA.
    (523 SE2d 354)
   Phipps, Judge.

After a bench trial, Darlene James’s 1990 Cadillac Brougham was forfeited to the State because her son, Edrin Temple, used the car to transport and sell drugs on May 3, 1997. James’s defense was that she was an innocent owner of the car. Under the innocent owner provision of the forfeiture statute:

A property interest shall not be subject to forfeiture if . . . the owner of such interest or interest holder establishes that the owner or interest holder [i]s not legally accountable for the conduct giving rise to its forfeiture, did not consent to it, and did not know and could not reasonably have known of the conduct or that it was likely to occur.

We will not set aside facts found in a bench trial “unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” The clearly erroneous standard is the same as the any evidence rule. The issue before us is whether there is any evidence to support a finding that, prior to May 3, 1997, James reasonably could have known that her son was using or was likely to use her car to transport and sell drugs.

The trial court concluded that James was not an innocent owner. The court specifically found that, before May 3, 1997, a McIntosh County Sheriff’s officer had informed James that her son was using the car to transport and sell drugs. Implicitly, the court found that, prior to May 3, 1997, James reasonably could have known that her son was using or was likely to use the car to facilitate drug sales.

Decided October 6, 1999.

John B. Cloy, for appellant.

J. Thomas Durden, Jr., District Attorney, Carole E. Wall, Assistant District Attorney, for appellee.

Officer Danny Deal testified that he told James on several occasions before May 3,1997, that her son was selling drugs from the car. He testified that he had stopped Temple in the car several times for traffic violations and that James would come to the scene angered because the police had stopped her son. He testified that during these encounters he told James her son was dealing drugs and asked her to smell the pervasive odor of marijuana emanating from the car. Deal further testified that after a March 20, 1997 arrest of Temple for possession of cocaine with intent to distribute and simple possession of marijuana, he showed James drugs he seized from the car.

James testified that Deal never told her he believed Temple was dealing drugs from the car and that she believed Deal’s traffic stops of Temple were simply harassment. James also denied seeing drugs removed from the car. James’s testimony conflicts with Deal’s. But the trial court had the opportunity to judge the credibility of the witnesses and resolve conflicts in the testimony. Evidence was presented from which the trial court could find that, prior to May 3, 1997, James reasonably could have known Temple was using or was likely to use the car to transport and sell drugs. She was not an innocent owner.

Judgment affirmed.

McMurray, P. J., and Andrews, P. J., concur.

       OCGA § 16-13-49 (e) (1).

       (Citations and punctuation omitted.) Lyon v. State of Ga., 230 Ga. App. 264 (495 SE2d 899) (1998).

       Id.


author: Andrews, Presiding Judge.

text:
    A99A1289.
    COLLINS v. THE STATE.
    (523 SE2d 359)
   Andrews, Presiding Judge.

Donald Collins appeals from the judgment entered after his conviction of four counts of aggravated assault, four counts of kidnapping, and one count each of burglary and possession of a firearm during commission of a felony. A kidnapping count and an aggravated assault count were included for each of two dishwashers and two waitresses present when DaVinci’s Restaurant was robbed on December 5, 1997. Collins challenges the sufficiency of the evidence regarding the kidnapping convictions and denial of his motion to sever counts of the indictment.

1. Collins asserts error in the denial of his motion to sever the counts arising from the DaVinci’s incident (Counts 1 through 12) from Counts 13 through 15 arising from the July 13, 1997 attempted burglary of Bell’s Grocery Store. Collins was acquitted of the latter three counts.

On July 13, 1997, around 6:45 a.m., Holloman, an employee of Bell’s Grocery, arrived to open the store. As she unlocked and entered the door, a man wearing a red bandanna and hooded jacket ran up to her and jammed something into the door, preventing its closure. He forced her into the store and began pummeling Holloman in the head with what she believed to be a pipe. The alarm went off, and the man fled. Officers responding found, near the front door, the wooden forepiece of a shotgun near some blood spatters. No pipe was found.

On December 5, 1997, the employees of DaVinci’s were closing up, tallying receipts and cleaning the restaurant around 11:30 p.m. All exterior doors were locked except a side door which Borders and Evans, the dishwashers, had propped open so they could empty mop water and trash. As they were walking back from doing so, Collins, wearing black pantyhose over his face, forced his way into the restaurant behind them, holding a 12-gauge shotgun. The shotgun had the stock sawed off and the forepiece missing.

Collins pushed Borders up against the wall. He demanded money from Manley and Bragg, the two waitresses. When Bragg was unable to open the cash register, Collins herded Evans and the two cashiers toward the manager’s office. Borders slipped under the kitchen door, obtained a large pot, snuck up behind Collins and began hitting him over the head. Collins still did not drop the gun, which discharged into a wall. The manager, the owner, and the rest of the employees then wrestled Collins into the rear parking lot where he was held until police arrived.

An expert opined that the forepiece of a shotgun found at Bell’s Grocery had previously been attached to the shotgun found in Collins’ possession at DaVinci’s.

Collins is correct that, when crimes are joined solely because they are of the same or similar nature, an accused is entitled to a severance. Dingler v. State, 233 Ga. 462 (211 SE2d 752) (1975).

Even overlooking the similarities in the DaVinci’s and Bell’s Grocery crimes, i.e., the use of the shotgun and a disguise and the entry into businesses during hours when they were closed, there is another basis upon which the evidence was admissible. The same weapon was used in both crimes. Therefore, evidence relating to the earlier use of this shotgun and recovery of a part of it from Collins’ possession upon his arrest for the DaVinci’s incident and recovery of the other part from Bell’s was admissible. Morrow v. State, 226 Ga. App. 833, 834 (1) (487 SE2d 669) (1997); see Dennis v. State, 263 Ga. 257, 259 (6) (430 SE2d 742) (1993).

It cannot be said that the trial court abused its discretion in denying Collins’ motion for severance. Anderson v. State, 236 Ga. App. 679, 680 (1) (513 SE2d 235) (1999).

2. Collins’ second and third enumerations are that the evidence was legally insufficient regarding the aggravated assault and kidnapping of Willie Evans, one of the dishwashers, because he was not called to testify.

Although Evans did not testify, Borders testified that, when she and Evans were followed into the restaurant by Collins and she was pushed against the wall, Collins then marched the two waitresses and Evans “around with the shotgun,” and cashier Manley testified that Evans was about six feet from her, near the bar, when Collins was pointing the shotgun at them and that Evans appeared to be “in shock.”

Regarding aggravated assault, “ ‘[t]he state of mind of the victim of an assault is a question of fact, which may be established by circumstantial evidence. [Cit.] . . . Lewis v. State, 215 Ga. App. 161, 162 (2) , 163 (450 SE2d 448) [(1994)].’” McKinney v. State, 218 Ga. App. 633, 635 (2) (463 SE2d 136) (1995).

Viewed with all inferences in favor of the jury’s verdict, Kahn v. State, 235 Ga. App. 229 (509 SE2d 137) (1998), we find the evidence of aggravated assault of Evans sufficient. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Curtis v. State, 190 Ga. App. 173, 174 (1) (378 SE2d 516) (1989).

Kidnapping requires that one abduct and steal away a person without legal authority and against his will. OCGA § 16-5-40 (a).

Only the slightest movement of the victim is required to constitute the necessary element of asportation. [Cits.] In establishing the element of asportation, there is no minimum requirement as to the distance a victim is moved, nor is there a minimum requirement as to the time the victim is held. [Cits.]

Evans v. State, 240 Ga. App. 215, 216 (1) (522 SE2d 506) (1999).

The evidence of kidnapping of Evans was legally sufficient. Evans, supra.

3. The evidence of kidnapping of Borders was also sufficient. She was forced to move in a direction she would not have gone and then pushed into a wall. Jackson, supra; Evans, supra.

4. Collins contests the legal sufficiency of the evidence of kidnapping of Manley and Bragg, the two waitresses, because Manley told Collins, after Bragg could not open the register, that the manager and owner had the money in the back and she would lead him back there.

Decided October 6, 1999.

Elizabeth M. Grant, for appellant.

Harry N. Gordon, District Attorney, William W. Tanner, Assistant District Attorney, for appellee.

Manley also testified that Collins was getting angry when they could not open the register and continued pointing the shotgun at them. He repeatedly demanded money and to see the manager. Neither Manley nor Bragg would have gone to the manager’s office absent Collins’ demands for money. As Manley stated: “[he] had a gun to me. I was going to do whatever he wanted, and he wanted the money. . . . He directed me to take him to the money and that’s where the money was.”

The evidence of asportation of Manley and Bragg was sufficient. Gibson v. State, 233 Ga. App. 838, 842 (4) (b) (505 SE2d 63) (1998).

Judgment affirmed.

McMurray, P. J, and Ruffin, J., concur.

       Additional counts arising from the November 11,1997 robbery of Compadre’s Restaurant were severed by the court.

       This is the narrow wooden piece attached to the barrel of the gun to allow one to hold the barrel while firing.


text:
    A99A1568.
    A99A1569.
    GEORGIA RECEIVABLES, INC. v. TE. GEORGIA RECEIVABLES, INC. v. LEWIS.
    (523 SE2d 352)
   Andrews, Presiding Judge.

In both of these cases, Georgia Receivables, Inc. sued upon and sought summary judgment on two health club contracts which Georgia Receivables had purchased from the health clubs. The two defendants, Te and Lewis, filed unverified answers contesting their liability, but did not respond to the motions for summary judgment.

The trial court, nonetheless, sua sponte granted summary judgment to both defendants on the ground that the contracts sued upon were void because they violated OCGA § 10-1-393.2. Georgia Receivables appeals in both cases, raising the same enumerations of error in each, and they are consolidated for appeal.

The company contends that it was error for the trial court, sua sponte, to grant summary judgment to the defendants. This argument fails.

The trial court can grant sua sponte summary judgment under Georgia law. [Cit.] In fact, the trial court can grant summary judgment to the “non-moving party provided that the grant is proper in all other respects. (Cit.)” Golston v. Garigan, 245 Ga. 450, 451 (1) (265 SE2d 590) (1980)[,] [Cits.] . . . “If the record demands such a judgment, it would be proper.” [Cits.]

Generali U. S. Branch v. Southeastern &c. Ins. Co., 229 Ga. App. 277, 278 (1) (493 SE2d 731) (1997).

Here, Georgia Receivables does not argue that the two contracts at issue comply with OCGA § 10-1-393.2, only that the defendants below did not raise that issue. That statute, however, provides that:

[a]ny contract which does not comply with this Code section shall be void and unenforceable; no purchaser of any note associated with or contained in any health spa contract shall make any attempt to collect on the note ... if there has been any violation by the health spa of subsections (b) through (m)... of this Code section.

(Emphasis supplied.) OCGA § 10-1-393.2 (n).

It is apparent from the face of the two contracts that they do not comply with the Act as a matter of law. Under these circumstances,

[t]he declaration in the . . . Act that any loan contract made in violation of the Act is “null and void” has a legal effect, long recognized by the courts, which needs no further explanation. It means that the contract is illegal and against the public policy of the state.

Hodges v. Community Loan &c. Corp., 234 Ga. 427, 430 (216 SE2d 274) (1975). See also Ga. Investment Co. v. Norman, 231 Ga. 821 (204 SE2d 740) (1974).

While Hodges and Ga. Investment Co. dealt with the Industrial Loan Act, the same rationale applies to the Act at issue here.

Georgia Receivables’ reliance on Ga. Receivables v. Cheatham, 216 Ga. App. 656 (455 SE2d 375) (1995) is unavailing for two reasons. First, that case is physical precedent only and not binding. Court of Appeals Rule 33 (a). Second, it involved an unraised affirmative defense that the suit had been filed beyond the statute of limitation. Failure to raise such an affirmative defense will waive it. Brown v. Little, 227 Ga. App. 484, 486 (1) (489 SE2d 596) (1997). There is no comparable rule for seeking recovery under a void contract.

Therefore, summary judgment was properly granted to Te and Lewis.

Judgments affirmed.

McMurray, P. J., and Ruffin, J., concur.

Decided October 6, 1999.

Frederick J. Hanna & Associates, Elizabeth C. Whealler, for appellant.

Bunkuy Te, pro se.

Linda Lewis, pro se.


author: Johnson, Chief Judge.

text:
    A99A1712.
    In the Interest of J. M. S. M., a child.
    (523 SE2d 357)
   Johnson, Chief Judge.

In order to terminate parental rights, a juvenile court must find clear and convincing evidence of present parental misconduct or inability, not merely evidence of past parental unfitness. The Cobb County Juvenile Court, in terminating the parental rights of the mother of J. M. S. M., relied on evidence that the mother is currently on felony probation, has an eighteen-year criminal record that includes numerous convictions and probation revocations, has abused cocaine and alcohol for over twenty years, does not have custody of her five other children and had her parental rights to two of those children terminated after they tested positive for cocaine at birth, is on medication for chronic depression, does not have a job and is unable to work because of her depression. Was the court’s finding that J. M. S. M. is deprived due to the present lack of parental control and care supported by sufficient evidence? We hold that it was and affirm the court’s order terminating the mother’s parental rights.

The mother began using alcohol when she was ten years old, marijuana when she was eleven, and cocaine when she was fourteen. She dropped out of school in eighth grade and left home. She has lived apart from her family since then, committing numerous thefts to help support her drug habits.

In 1981, at the age of twenty, she was convicted of eleven counts of forgery and was given a seven-year probated sentence. A few months later she was convicted of another forgery offense, and three years of her probation were revoked. In 1984, her probation was again revoked. From 1990 until 1992 she had at least three theft by shoplifting convictions.

Although the record does not give exact dates, the mother gave birth to a baby boy around 1990 and to twin girls around 1991. The boy does not have the same father as the girls. Some time before October 1993, the three children were placed in the custody of their maternal grandmother.

A third man fathered the mother’s next two children, P. M. and R. M. In 1993, P. M. was born and, along with the mother, tested positive for cocaine. And in 1994, R. M. was born addicted to cocaine. In 1995, P. M. and R. M. were found to be deprived, the mother was found to be an unfit parent, and her parental rights to those two children were terminated. P. M. and R. M. were eventually adopted by their aunt.

In 1996, the mother was convicted of felony shoplifting, and her probation was once again revoked. During that year, she was diagnosed as being a long-term cocaine and alcohol addict. She spent three months that year in a drug rehabilitation clinic.

In 1997, while pregnant with J. M. S. M., the mother was homeless and living in a camp with other homeless people. She was arrested for shoplifting and later claimed that she had needed a place to stay so she committed the crime in order to be sent to jail. She was eventually convicted of the shoplifting charge and given a total sentence of 15 years. Due to her pregnancy, she was released from jail and was given the probated sentence she is currently serving. In 1998, she gave birth to J. M. S. M., who was taken into the custody of the state and temporarily placed with the same aunt who has R. M. and P. M.

After the birth, the mother was hospitalized for depression. She currently takes two antidepressant medications. She lives with a relative, but is unable to pay any rent or other expenses because she does not have a job. In fact, she has not held a job for several years. The mother claims that she cannot work due to her depression, but that she receives Social Security benefits and food stamps.

The state filed a petition to terminate the parental rights of both the mother and father of J. M. S. M. After a hearing on the petition, the court found that the father’s whereabouts are unknown and terminated his parental rights. The court also found that the mother is an unfit parent and terminated her parental rights. She appeals from the order of termination.

Although the mother sets forth three enumerations of error, in her appellate brief her sole argument is that there is no evidence of her present lack of parental ability causing J. M. S. M to be deprived, but only evidence of her past parental unfitness. The argument is without merit.

In determining if a child is deprived because he is currently without proper parental care and control, a court shall consider evidence of a parent’s mental or emotional health deficiency, history of drug abuse, felony convictions and imprisonment, and past abuse or neglect of another child. In the instant case, there is evidence of all these factors.

Decided October 6, 1999.

Baskin & Baskin, Brenda Godfrey, William E. Brewer, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General,

There is evidence that the mother is now serving a lengthy felony probation sentence, she is addicted to cocaine and alcohol, she is on antidepressant medications, she is unemployed and claims that she is unable to work because of her depression, her only income is government assistance, and she cannot afford housing and instead is living in a relative’s apartment. All these facts support the juvenile court’s finding of present parental inability.

Moreover, the juvenile court was not required to reunite J. M. S. M. with the mother in order to obtain current evidence of deprivation or neglect. Rather, the court properly determined that the child’s deprivation is likely to continue due to the mother’s past unfitpess as evidenced by her history of crime, drug use, homelessness, joblessness, and having had her parental rights terminated as to the two children born addicted to cocaine. The court was entitled to infer from the evidence that, despite the mother’s best efforts, the same pattern of deprivation would continue if the child were reunited with the mother.

On appeal from a juvenile court order terminating parental rights, this court must review the evidence in the light most favorable to the court’s order to determine if a rational trier of fact could have found clear and convincing evidence that the parental rights have been lost. Having reviewed the evidence in that light, we conclude that the juvenile court was authorized to find sufficient evidence that the mother’s present parental inability is the cause of J. M. S. M.’s deprivation. The order of termination is therefore affirmed.

Judgment affirmed.

McMurray, P. J. and Phipps, J., concur.

ShalenA. Sgrosso, Assistant Attorney General, Sanders B. Deen, Robert J. Grayson, for appellee.

        In the Interest of J. L. M., 204 Ga. App. 46, 47 (1) (418 SE2d 415) (1992).

       OCGA § 15-11-81 (b) (4) (B) (i)-(v).

        In the Interest of J. S., 232 Ga. App. 876, 879 (1) (502 SE2d 788) (1998).

       See In the Interest of S. J. C., 234 Ga. App. 491, 493 (1) (507 SE2d 226) (1998).

        In the Interest of N. J. W., 233 Ga. App. 130 (503 SE2d 366) (1998).

       See In the Interest of B. D., 236 Ga. App. 119, 120-121 (1) (511 SE2d 229) (1999).


text:
    A99A1763.
    EVANS v. THE STATE.
    (523 SE2d 103)
   Johnson, Chief Judge.

Billy Joe Evans was convicted of burglarizing a store and committing an armed robbery of a store employee. He appeals, claiming that there is not enough evidence to support the convictions; the court erred in not merging the offenses; the jury charges were improper in various respects; and the court erroneously failed to hear any argument before sentencing him. The claims are without merit because the evidence, including Evans’ admission to his girlfriend that he had committed the crimes and that tools of the crime found in her apartment belonged to him, was sufficient to prove his guilt; the two crimes do not merge as a matter of law or fact because they consist of different elements and were proved by different facts; the jury charges were adjusted to the facts and were correct statements of law; and the court gave Evans an opportunity to make an argument before sentencing, but Evans declined the court’s offer. Because Evans has not shown any error, we affirm his convictions.

At about 7:40 a.m., on Friday, December 12, 1997, Paula Lykins arrived for work at Sam’s Check Cashing store in Griffin. She began getting the store ready for its 8:00 a.m. opening by turning on computers and lottery equipment and by unlocking the store safe. While setting up a lottery ticket display, she noticed movement behind her and turned to see two men in dark clothing and ski masks. One of the men had a handgun. Lykins screamed, and the men told her to be quiet or they would hurt her. The men forced Lykins into a rest room and made her sit on the toilet, with the gun pointed at her face.

As she sat there, Lykins heard a voice come over a walkie-talkie the men had. The man with the gun then left the rest room. The other man bound Lykins’ hands and feet with plastic straps and taped her mouth shut. He then left the rest room. Lykins heard some commotion in the store followed by the front door slamming, so she assumed the men had left. She slipped the plastic strap off her feet, crawled out of the rest room and saw that money had been taken from the safe and that lottery tickets were missing. She tried to call the police, but the telephone did not work, so she went to the business next door to call for help.

Law enforcement officers arrived at the store and found that a padlock securing a fence behind the store had been cut, the store’s telephone lines had been cut, and an entry hole had been sawed into the store roof. The police also found two ski masks on a trail leading from the store area to the nearby Heritage Apartments. The police spoke to the Heritage maintenance supervisor, who told them that between approximately 7:40 and 7:50 on the morning of the robbery he had seen two men he did not recognize, leaving an apartment building. And one of them was carrying a duffel bag.

The police eventually discovered that Evans’ girlfriend, Natasha Relthford, lived in that apartment building and that Evans would sometimes stay there with her for as much as a week at a time. Evans was with Relthford at the apartment the night before and the day of the robbery. He was there again the day after the robbery, along with his friend Clifford White, who was carrying a gun in his waistband. Sometime later that day, Evans left with White, and never returned.

Three days after the robbery, the police went to the apartment and were allowed by Relthford’s roommate, Tashika Curtis, to search the apartment. In a closet, the police found bolt cutters that an expert later determined were those used to cut the padlock at the store. They also found plastic straps identified by another expert as being similar to those used to bind Lykins. And the police discovered a circular saw and a pair of shoes, all of which were covered in a white powder like that found around a crumbled wall in the store. Other items found in the closet included walkie-talkies, a pair of black gloves, a small flashlight and a knife.

On about the same day when the police searched her apartment, Relthford spoke with Evans on the telephone. During their conversation, Evans admitted to her that he had committed the robbery and that the things found in the apartment closet were his. Relthford later told the police that Evans had confessed to the crimes.

Evans and White were arrested and indicted for armed robbery and burglary. The state eventually decided not to prosecute White, but Evans was tried before a jury, which found him guilty of both charges. The court sentenced him to life imprisonment for the armed robbery and 20 years imprisonment for the burglary. Evans appeals from his convictions.

1. On appeal, this court views the evidence in the light most favorable to the verdict and determines if the evidence is sufficient to prove the appellant’s guilt beyond a reasonable doubt; we do not presume that the appellant is innocent, weigh the evidence or determine witness credibility. In this case, all the evidence, including the facts that the tools used to commit the crimes were found in the apartment closet of Evans’ girlfriend, that Evans admitted to his girlfriend that the tools belonged to him, and that he admitted to her that he had committed the crimes, was sufficient to enable the jury to find Evans guilty beyond a reasonable doubt of participating in the burglary and armed robbery.

2. Evans’ complaint that the court erred in failing to merge the armed robbery and the burglary charges is completely without merit because not only are the elements and the culpable mental state required of these crimes different, but the facts which proved each crime were different. It was not error for the court to convict and sentence Evans separately for armed robbery and burglary because neither of those crimes is included in the other.

3. Evans argues the court should have given his requested charge on alibi because Relthford testified that Evans was with her between 7:30 and 8:00 on the morning of the burglary and robbery. Evans’ argument misconstrues Relthford’s testimony. She actually testified that on the morning of the crimes Evans was with her in her apartment, that she left for work a little bit after 7:30, and that Evans then stayed in the apartment. Relthford does not know what Evans did after she left the apartment.

Where the evidence supporting an alibi defense does not show the impossibility of the defendant’s presence at the crime scene during the crime’s commission, the failure of the court to charge the law of alibi is not error. Here, Relthford’s testimony does not show that it was impossible for Evans to have left the apartment after she left at just past 7:30, gone to the nearby store, and participated in the burglary and robbery that occurred around or after 7:40. Because the evidence relied on by Evans does not show the impossibility of his presence at the crime scene, the trial court did not err in refusing to give an alibi charge.

4. Evans claims that the court erred in charging the jury on the concepts of parties to a crime and conspiracy. The claim is without merit.

Conspiracy in an evidentiary sense concerns the participation of individuals in a crime, and it is not error for the trial court to charge this doctrine where the evidence tends to show a conspiracy. Because the state presented evidence that Evans and an accomplice, acting together, burglarized the store and robbed the store employee at gunpoint, the charge on conspiracy was in order.

Decided October 6, 1999.

Rosamund P. Braunrot, for appellant.

Likewise, the evidence established that Evans was guilty as a party to the burglary and armed robbery under OCGA § 16-2-20, and where there is any evidence upon a particular point, it is not error for the court to charge the law on that point.

5. Evans challenges the following emphasized language in the court’s jury instructions on reasonable doubt: “It is not an arbitrary or capricious doubt, nor does it mean the possibility that the defendant may be innocent” Although this language is not part of the suggested pattern criminal charges, challenges to such language have been rejected.

6. Evans’ claim that he was not afforded an opportunity to make any argument before the court sentenced him is not supported by the trial transcript, which shows that the court held a presentence hearing as required by OCGA § 17-10-2 (a). That Code section provides that after a guilty verdict in a felony case the judge must conduct a hearing to determine punishment, and at the hearing the prosecutor argues first and the defendant argues last.

After the verdict in this case, the court first heard the state’s offer of Evans’ prior criminal convictions as evidence in aggravation of punishment. The court then asked Evans’ attorney if she had anything to offer in mitigation of punishment. She responded, “No Your Honor. You’ve heard the case.” The court then announced the sentence and the reasons for it. Evans made no objection..

Because Evans declined the opportunity to present anything in mitigation of punishment and then failed to raise any objection when the court imposed its sentence, we find no merit to his claim of error.

Judgment affirmed.

McMurray, P. J, and Phipps, J., concur.

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

        Maxwell v. State, 233 Ga. App. 419 (1) (503 SE2d 668) (1998).

       See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Lawson v. State, 214 Ga. App. 464, 465 (1) (448 SE2d 14) (1994); Johnson v. State, 190 Ga. App. 697, 698 (1), (2) (380 SE2d 81) (1989).

       OCGA §§ 16-7-1 (a); 16-8-41 (a).

       See OCGA §§ 16-1-6; 16-1-7; Golden v. State, 233 Ga. App. 703, 704-705 (2) (a), (b) (505 SE2d 242) (1998).

       See Boyd v. State, 168 Ga. App. 246, 251-252 (8) (308 SE2d 626) (1983).

        Smith v. State, 224 Ga. App. 819, 820 (1) (481 SE2d 896) (1997).

       See Hulett v. State, 262 Ga. 194, 195 (2) (415 SE2d 642) (1992).

        Thomas v. State, 255 Ga. 38, 41 (2) (334 SE2d 675) (1985).

       See Hamilton v. State, 179 Ga. App. 434, 436-437 (6) (346 SE2d 881) (1986); Kennedy v. State, 172 Ga. App. 336, 338-339 (2) (c) (323 SE2d 169) (1984).

        See Rocha v. State, 234 Ga. App. 48, 52 (4) (506 SE2d 192) (1998); Kennedy, supra.

        See Andrews v. State, 201 Ga. App. 329, 330-331 (2) (411 SE2d 52) (1991).

        Jenkins v. State, 235 Ga. App. 547, 549 (3) (b) (510 SE2d 87) (1998).

       See Davis v. State, 214 Ga. App. 360, 362 (6) (448 SE2d 26) (1994); Willey v. State, 209 Ga. App. 398, 400 (4) (433 SE2d 674) (1993).


author: Ruffin, Judge.

text:
    A99A1275.
    DAVIS v. THE STATE.
    (522 SE2d 729)
   Ruffin, Judge.

A Gwinnett County jury convicted Chauncy Davis of burglary, and the trial court sentenced him to 20 years. On appeal, Davis contends the trial court erred in failing to grant his motion for mistrial. Davis also contends that the State failed to provide discovery. Davis’ contentions lack merit, and we affirm.

The victims, Christopher Farr, Christopher Conner and Michael Dawson, shared an apartment. On July 14, 1996, the three roommates returned from an evening out and discovered that their apartment had been broken into. Farr called the police. While the three victims were looking through the apartment to ensure that the culprits had left, they heard someone attempting to open the door. Dawson and Conner ran out of the apartment and saw several men running down the stairs, but lost sight of them. As they reached the bottom of the stairs, however, they saw a van going back and forth in front of the apartment with its hazard lights flashing.

Dawson called the police from a pay phone outside. The police arrived within minutes, and Conner and Dawson directed them to the van. The police stopped the van and arrested the four occupants, James Cooley, Richard Cooley, Wilbert Kennedy and Bobby Harkins.

At trial, James Cooley and Kennedy testified that they had driven to Gwinnett County with William Cooley, Richard Cooley, Harkins and Chauncy Davis to burglarize the apartment. James Cooley testified that Davis said he had been to the apartment before, and that Davis claimed that they would find drugs and money there. When they reached the apartment, Davis entered the apartment through a window and opened the front door to let William Cooley inside. Davis left the apartment carrying a green duffel bag that held two camcorders and a strongbox. The culprits drove away, but returned to the apartment a short time later because Davis said they might have overlooked some drugs in the apartment. According to James Cooley, when Davis and William Cooley tried to enter the apartment a second time, they were discovered by the occupants.

1. In his first enumeration of error, Davis contends the trial court erred in refusing to grant a mistrial after the State introduced evidence of his character. At trial, Farr testified that two weeks before the burglary, Davis had been to his apartment and had asked to buy some marijuana. Davis asserts that this testimony was irrelevant and served to impugn his character. We disagree.

“Evidence which is relevant to an issue in a case is not rendered inadmissible by the fact that it incidentally puts the defendant’s character in issue.” (Punctuation omitted.) Parrish v. State, 237 Ga. App. 274 (514 SE2d 458) (1999). Here, James Cooley testified that Davis chose to burglarize the apartment to obtain drugs. Thus, evidence that Davis had been to Farr’s apartment and believed Farr had access to drugs was relevant to Davis’ motive. As our Supreme Court recently noted,

[a]lthough motive is not an essential element in proving the crime [ ] charged, the State is entitled to present evidence to establish that there was a motive, and evidence that [the defendant requested] drugs is relevant to prove that he had a motive for committing the crime [] and is not rendered inadmissible by the fact that it incidentally puts his character in issue.

Brady v. State, 270 Ga. 574, 578-579 (5) (a) (513 SE2d 199) (1999). Accordingly, the trial court did not abuse its discretion in denying Davis’ motion for mistrial. See Boddie v. State, 269 Ga. 5, 6 (2) (494 SE2d 651) (1998).

2. Davis maintains that the State failed to comply with his discovery request. But Davis does not specify what discovery the State failed to supply. According to the State, it did provide discovery to Davis after he was initially indicted. Davis apparently was reindicted on the same charges, however, and the State did not resubmit discovery. Davis argues that by failing either to resupply the same information or to file a “motion to transfer the discovery” following Davis’ reindictment, the State should have been sanctioned for violating the rules of discovery. Davis’ argument lacks merit.

“The provisions of the Discovery Act were designed to facilitate disclosure of evidence in order to ensure ‘fairness’ in criminal adversarial proceedings.” Todd v. State, 230 Ga. App. 849, 853 (3) (a) (498 SE2d 142) (1998). Here, the State did disclose the requisite evidence. We do not believe that the State was required to submit the same evidence a second time following Davis’ reindictment on the same charges.

Moreover, we note that the only sanction requested by Davis was the exclusion of the evidence. “The sanction of evidence exclusion is severe and can be imposed only where there has been a timely showing of prejudice to the defense and bad faith by the State.” (Punctuation omitted.) Bohannon v. State, 230 Ga. App. 829, 835 (2) (498 SE2d 316) (1998); OCGA § 17-16-6. Davis does not contend that he was prejudiced by the State’s failure to resubmit discovery, nor does he assert that the State acted in bad faith. Indeed, he points to no evidence that should have been excluded. Accordingly, he presents no basis for reversal. See Miller v. State, 235 Ga. App. 724, 725-726 (510 SE2d 560) (1998) (absent a showing of harm, reversal is not required).

Decided September 24, 1999

Reconsideration denied October 7, 1999

Herbert Shafer, for appellant.

Daniel J. Porter, District Attorney, Dawn H. Taylor, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J, and Andrews, P. J., concur.

       Although there was one photograph that the State failed to provide to Davis, the trial court excluded this photograph. Hence, there was no harm to Davis.


author: Miller, Judge.

text:
    A99A1177.
    CLARK v. THE STATE.
    (523 SE2d 388)
   Miller, Judge.

Graham Clark was convicted of violating a Cherokee County ordinance that required him to control soil erosion on his property. He appeals, contending that the county ordinance was not properly proven.

Because this court cannot take judicial notice of a county ordinance, the State must introduce the ordinance into evidence, normally by certified copy. But Clark did not include a transcript of the trial in the appellate record so we could determine whether the ordinance was properly admitted into evidence. The burden is on the appellant to show the alleged error by the record, and “where the proof necessary for determination of the issues on appeal is omitted from the record, an appellate court must assume that the judgment below was correct and affirm.”

Because Clark omitted the trial transcript from the record, we are unable to consider the merits of his claim and must affirm.

Judgment affirmed.

Pope, P. J., and Eldridge, J., concur.

Decided October 7, 1999.

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

G. Charming Ruskell, Solicitor, for appellee.

        Poole v. State, 229 Ga. App. 406, 409 (2) (494 SE2d 251) (1997); see Owens v. State, 153 Ga. App. 525, 526 (1) (265 SE2d 856) (1980) (physical precedent only).

       (Citations and punctuation omitted.) Regency Exec. Plaza Unit Owner’s Assn. v. Wilmock, Inc., 237 Ga. App. 193, 194 (514 SE2d 446) (1999); see Brown v. Frachiseur, 247 Ga. 463, 464 (277 SE2d 16) (1981).


text:
    A99A1306, A99A1486.
    GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY v. GARZONE; and vice versa.
    (523 SE2d 386)
   Miller, Judge.

Planning to build and then sell a residential dwelling, John Garzone obtained a fire insurance policy from Georgia Farm Bureau Mutual Insurance Company to insure the anticipated structure for a period of one year. Six months later when the home was three-fourths complete, a fire destroyed it. Garzone demanded that Georgia Farm pay the policy’s stated face amount of $125,000. Georgia Farm would agree to pay only $93,179.25, the amount necessary to rebuild the structure. Because of a dispute between Garzone and his lender, Georgia Farm, within 60 days of Garzone’s demand, filed an inter-pleader action, paying the lesser amount into the court’s registry and naming Garzone and his lender as defendants. Garzone counterclaimed for the full amount of the policy and for bad faith under OCGA § 33-4-6.

Concluding that OCGA § 33-32-5 required Georgia Farm to pay the higher amount, the court entered judgment in favor of Garzone for the full amount of the policy but denied his claim for bad faith. Georgia Farm appealed (Case No. A99A1306), and Garzone cross-appealed (Case No. A99A1486). Because the insurance policy was a “builders’ risk” policy exempt from OCGA § 33-32-5 (a), we reverse in Case No. A99A1306 and hold that the statute did not override the policy provision that Garzone receive no more than the amount needed to rebuild the structure. Since Georgia Farm prevails, we hold that \the court properly denied the claim for bad faith. Judgment in Case No. A99A1486 is affirmed.

Case No. A99A1306

1. The policy insured Garzone “to the extent of the actual cash value of the property at the time of loss, but not exceeding the amount which it would cost to repair or replace the property with material of like kind and quality. . . .” The amount due Garzone is the replacement cost unless a statute overrides the policy language.

OCGA § 33-32-5 (a) applies to fire insurance policies which are issued to natural persons and specifically describe a one- or two-family residential building or structure located in Georgia. If after 30 days of the policy’s issuance the structure is destroyed by fire without fraudulent or criminal fault by the insured, the insurer must pay the face amount of the policy regardless of other policy provisions setting forth the amount to be paid. But this statute does not apply if “[t]he completed value of [the] building or structure is insured under a builders’ risk policy.”

Georgia Farm first argues that because the structure was not complete, the policy did not describe a “residential building or structure” as required by the statute. The policy described a “172 story, frame constructed, approved roof, one family rental dwelling located” at a Georgia address. Because a dwelling is a common description for a residence, the policy described a residential building and thus fit within the language of the statute. No language in the statute exempts policies insuring incomplete buildings.

But the statute does exempt “builders’ risk” policies. No statute or regulation defines such policies, although several cases have passingly referred to them. An annotation on “builders’ risk” policies describes them as “ordinarily issued to a contractor or a property owner for the purpose of insuring him against loss during the construction, alteration, or repair of a building. . . .” The annotation indicates that a policy provision granting permission to complete the building is equivalent to a “builders’ risk” clause. Thus, the court below and Garzone both assert that one reason the policy at issue was not a “builders’ risk” policy was because the policy contained no “permission to complete” clause.

It is undisputed that the building was under construction. Our review of the policy reveals three provisions indicating that the dwelling was under construction and that therefore this policy was a “builders’ risk” policy. First, § XIV.D. expressly grants Garzone “[p]ermission ... to complete structures in course of construction.” Second, § VI insures “material and supplies intended for use in construction ... of the structures covered hereunder,” while such materials and supplies are located on the premises. Garzone even emphasized this provision in his counterclaim. Third, although the policy does not cover buildings vacant for more than 60 days, § XTV.B. provides that “[a] building in process of construction shall not be deemed vacant.”

The court below held that because the policy tracked the language of standard fire policies set forth in § 120-2-19-.01 of the Georgia Administrative Code, it could not be a “builders’ risk” policy. The court erred in this conclusion. OCGA § 33-32-1 (a) requires all fire insurance policies in Georgia (with one inapplicable exception) to conform to the provisions of this regulation. The policy contained that language and also added the terms, cited above, demonstrating that it was intended to be a “builders’ risk” policy.

Because the policy is a “builders’ risk” policy, OCGA § 33-32-5 (a) does not override the policy’s provisions regarding the amount of payment to Garzone. The judgment that Georgia Farm is liable for the full $125,000 amount is reversed, and the case is remanded with the instruction that judgment be entered that the amount paid into the court’s registry is deemed to be full payment of Georgia Farm’s obligations under the policy.

Case No. A99A1486

2. Because in Division 1 we rule that Georgia Farm paid the correct amount into the court registry within 60 days of the demand letter, Garzone cannot recover for bad faith or attorney fees under OCGA § 33-4-6. The judgment in Case No. A99A1486 against Gar-zone’s counterclaim on this issue is affirmed.

Judgment affirmed in Case No. A99A1486. Judgment reversed and case remanded with instruction in Case No. A99A1306.

Smith and Eldridge, JJ., concur.

Decided October 7, 1999.

Watson, Dana & Gottlieb', Dennis D. Watson, Douglas R. Wood-ruff, for appellant.

Clifton M. Patty, Jr., Christopher C. Young, for appellee.

       The lender subsequently received $55,000 of the paid-in amount and was dismissed as a party.

       OCGA § 33-32-5 (b) (4).

       OCGA § 33-32-5 (a).

       Black’s Law Dictionary, p. 505 (6th ed. 1990); see OCGA § 13-2-2 (2) (words in contract bear their common signification); Park ‘N Go of Ga. v. U S. Fidelity &c. Co., 266 Ga. 787, 791 (471 SE2d 500) (1996) (“[a]n insurance policy is governed by the ordinary rules of contract construction”) (citation and footnote omitted).

       OCGA § 33-32-5 (b) (4).

       See, e.g., Moultrie Ins. Agency v. Goodbar, 203 Ga. App. 677 (417 SE2d 658) (1992); Currahee Constr. Co. v. Rabun County School Dist., 180 Ga. App. 471 (349 SE2d 487) (1986); E. C. Long, Inc. v. Brennan’s of Atlanta, 148 Ga. App. 796, 800 (252 SE2d 642) (1979); American Ins. Co. v. Bateman, 125 Ga. App. 189, 190 (186 SE2d 547) (1971).

       Anno., Builder’s Risk Ins. Policies, 94 ALR2d 221, 224, § 1 (a) (1964); see 9 Couch on Ins. 3rd, § 132:20 (1997) (“[a] builder’s risk policy is a species of property loss insurance by which the builder seeks to insulate himself from liability occasioned by damage to or loss of the structure which the builder has contracted to produce”).

       Anno., Builder’s Risk Ins. Policies, supra at 225.

       Because the parties stipulated to the facts and had the court decide the case on the written record, our review is de novo and we give no deference to the trial court’s legal conclusions. McCombs v. Southern Regional Med. Center, 233 Ga. App. 676, 681 (2) (504 SE2d 747) (1998).

       Cf. Bateman, supra, 125 Ga. App. at 189, hn. 2 (“builders’ risk” insurance policy covered materials and supplies to be used in the construction of the building); Shamrock Homebuilders v. Cherokee Ins. Co., 486 SW2d 548, 550 (Tenn. App. 1972) (same).

       See OCGA § 33-32-5 (b) (4).


text:
    A99A1484.
    RIDLEY v. THE STATE.
    (523 SE2d 383)
   Miller, Judge.

A jury found Maurice Ridley guilty of armed robbery but acquitted him of possession of a firearm during the commission of a crime. On appeal, Ridley enumerates as error (i) the sufficiency of the evidence, (ii) the admission of clothing as evidence, (iii) the ineffectiveness of his counsel, and (iv) the inconsistency of the verdicts. We affirm.

1. Arguing the evidence was insufficient, Ridley claims that the only evidence implicating him in the robbery was his uncorroborated statement to the police and the prior inconsistent statement of a witness. On appeal of a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. The test established in Jackson v. Virginia is whether, construing the evidence in favor of the State, a rational trier of fact could have found Ridley guilty beyond a reasonable doubt. This test applies whether the challenge arises from the overruling of a motion for directed verdict, as here, or the overruling of a motion for new trial.

Viewed in this light, the evidence showed that two men wearing masks and carrying handguns entered and robbed a corner market. The owner of the store and his son testified that one man removed the cash from the register, while the other man grabbed an armful of clothing from a rack in the front of the store. Both men fled the store on foot.

Following the robbery, the police interviewed a witness who stated that on the evening of the robbery, she saw two men running from the store carrying clothing items. She identified the men as Ridley and David Cobb. The police searched Cobb’s residence and found the clothing taken from the robbery. Ridley was arrested and confessed that he and Cobb robbed the store, but Ridley informed the police that his gun was a plastic gun painted chrome to look real.

Although a confession alone is insufficient to sustain a conviction, a corroborated confession is sufficient. Two things corroborated the confession: Cobb’s possession of the clothes and the witness’s statement that she saw Ridley and Cobb running from the store with clothing in hand. Even though at trial the witness denied making the statement, a prior inconsistent statement of a witness who testifies and is subject to cross-examination is admissible as substantive evidence. The evidence sufficed to sustain the conviction.

2. Ridley argues that because the State failed to prove a chain of custody, the trial court erred by admitting the clothing found at Cobb’s residence. Unlike fungible items, clothing is a distinct physical object which is identifiable upon observation and does not require custodial proof for admission into evidence at trial. The owner of the store identified the clothing as merchandise his store carried at the time of the robbery. The State need not prove the authenticity of an exhibit to an absolute certainty. This enumeration lacks merit.

3. Ridley also argues that he was denied effective assistance of counsel. To prevail on a claim of ineffective assistance of counsel, Ridley must show both that his counsel’s performance was deficient and that, but for the deficiency, the outcome of the trial would have been different. Moreover, there is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance, and that the challenged action might be considered sound trial strategy. Finally, a trial court’s determination that a defendant was provided effective assistance of counsel will not be reversed unless the decision is clearly erroneous.

Ridley argues his trial counsel was ineffective because (i) he met with Ridley on only two occasions before the trial, (ii) he did not interview the witnesses or the co-defendant, and (iii) he did not call Ridley or any other defense witnesses. But Ridley’s counsel testified at the new trial hearing that he met with Ridley on several occasions. He determined witness interviews were unnecessary since he had a transcript from Cobb’s trial, which contained the testimony from the State’s witnesses and Ridley’s alibi witnesses. With the advice of counsel, Ridley himself decided not to testify; the advice was based on Ridley’s poor testimony at the earlier trial of Cobb. Ridley also concurred in the decision not to call any witnesses, so as to preserve the last word in closing argument. The court did not clearly err in finding Ridley received effective assistance of counsel.

Decided October 7, 1999.

Brian A. McDaniel, for appellant.

J. David Miller, District Attorney, A. Scott Gunn, Wesley J. Lewis, Assistant District Attorneys, for appellee.

4. Ridley’s final argument is that the acquittal on the gun possession charge was inconsistent with the conviction on the armed robbery charge, thus rendering the guilty verdict invalid under the inconsistent verdict rule. Milam v. State abolished the inconsistent verdict rule and found that the sole question was whether the evidence when viewed in favor of the conviction was sufficient to support the verdict. Ridley cites Strong v. State to support his argument that inconsistent verdicts must be reversed. Kimble v. State overruled Strong on this very ground. As such, this enumeration is without merit.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

       See Daros v. State, 201 Ga. App. 512 (1) (411 SE2d 367) (1991).

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

       Id.

        Jenkins v. State, 232 Ga. App. 395, 396 (2) (501 SE2d 891) (1998).

        Gibbons v. State, 248 Ga. 858, 862 (2) (286 SE2d 717) (1982).

        Kenney v. State, 236 Ga. App. 359, 360 (4) (511 SE2d 923) (1999); Pryor v. State, 231 Ga. App. 136, 137 (5) (497 SE2d 805) (1998).

        Kates v. State, 152 Ga. App. 29, 30 (2) (262 SE2d 221) (1979).

        Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984).

        Clay v. State, 232 Ga. App. 656, 657 (1) (503 SE2d 560) (1998).

        Upshaw v. State, 215 Ga. App. 529, 530 (3) (451 SE2d 125) (1994).

       See Jenkins v. State, 268 Ga. 468, 473 (10) (491 SE2d 54) (1997) (advice not to testify is tactical decision); Williams v. State, 239 Ga. App. 598, 599 (2) (521 SE2d 650) (1999).

       See Gurr v. State, 238 Ga. App. 1, 4 (5) (516 SE2d 553) (1999) (preserving the final word in closing argument is a well-recognized trial tactic).

       255 Ga. 560, 562 (2) (341 SE2d 216) (1986).

       223 Ga. App. 434 (477 SE2d 866) (1996).

       236 Ga. App. 391, 394 (1) (512 SE2d 306) (1999).